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Justice Scalia | dissenting | false | McIntyre v. Ohio Elections Comm'n | 1995-04-19T00:00:00 | null | https://www.courtlistener.com/opinion/117921/mcintyre-v-ohio-elections-commn/ | https://www.courtlistener.com/api/rest/v3/clusters/117921/ | 1,995 | 1994-045 | 2 | 7 | 2 | At a time when both political branches of Government and both political parties reflect a popular desire to leave more decision making authority to the States, today's decision moves in the opposite direction, adding to the legacy of inflexible central mandates (irrevocable even by Congress) imposed by this Court's constitutional jurisprudence. In an opinion which reads as though it is addressing some peculiar law like the Los Angeles municipal ordinance at issue in Talley v. California, 362 U.S. 60 (1960), the Court invalidates a species of protection for the election process that exists, in a variety of forms, in every State except California, and that has a pedigree dating back to the end of the 19th century. Preferring the views of the English utilitarian philosopher John Stuart Mill, ante, at 357, to the considered judgment of the American people's elected representatives from coast to coast, the Court discovers a hitherto unknown right-to-beunknown while engaging in electoral politics. I dissent from this imposition of free-speech imperatives that are demonstrably not those of the American people today, and that there is inadequate reason to believe were those of the society that begat the First Amendment or the Fourteenth.
I
The question posed by the present case is not the easiest sort to answer for those who adhere to the Court's (and the *372 society's) traditional view that the Constitution bears its original meaning and is unchanging. Under that view, "[o]n every question of construction, [we should] carry ourselves back to the time when the Constitution was adopted; recollect the spirit manifested in the debates; and instead of trying [to find] what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." T. Jefferson, Letter to William Johnson (June 12, 1823), in 15 Writings of Thomas Jefferson 439, 449 (A. Lipscomb ed. 1904). That technique is simple of application when government conduct that is claimed to violate the Bill of Rights or the Fourteenth Amendment is shown, upon investigation, to have been engaged in without objection at the very time the Bill of Rights or the Fourteenth Amendment was adopted. There is no doubt, for example, that laws against libel and obscenity do not violate "the freedom of speech" to which the First Amendment refers; they existed and were universally approved in 1791. Application of the principle of an unchanging Constitution is also simple enough at the other extreme, where the government conduct at issue was not engaged in at the time of adoption, and there is ample evidence that the reason it was not engaged in is that it was thought to violate the right embodied in the constitutional guarantee. Racks and thumbscrews, well-known instruments for inflicting pain, were not in use because they were regarded as cruel punishments.
The present case lies between those two extremes. Anonymous electioneering was not prohibited by law in 1791 or in 1868. In fact, it was widely practiced at the earlier date, an understandable legacy of the revolutionary era in which political dissent could produce governmental reprisal. I need not dwell upon the evidence of that, since it is described at length in today's concurrence. See ante, at 360โ 369 (Thomas, J., concurring in judgment). The practice of anonymous electioneering may have been less general in 1868, *373 when the Fourteenth Amendment was adopted, but at least as late as 1837 it was respectable enough to be engaged in by Abraham Lincoln. See 1 A. Beveridge, Abraham Lincoln 1809-1858, pp. 215-216 (1928); 1 Uncollected Works of Abraham Lincoln 155-161 (R. Wilson ed. 1947).
But to prove that anonymous electioneering was used frequently is not to establish that it is a constitutional right. Quite obviously, not every restriction upon expression that did not exist in 1791 or in 1868 is ipso facto unconstitutional, or else modern election laws such as those involved in Burson v. Freeman, 504 U.S. 191 (1992), and Buckley v. Valeo, 424 U.S. 1 (1976), would be prohibited, as would (to mention only a few other categories) modern anti noise regulation of the sort involved in Kovacs v. Cooper, 336 U.S. 77 (1949), and Ward v. Rock Against Racism, 491 U.S. 781 (1989), and modern parade-permitting regulation of the sort involved in Cox v. New Hampshire, 312 U.S. 569 (1941).
Evidence that anonymous electioneering was regarded as a constitutional right is sparse, and as far as I am aware evidence that it was generally regarded as such is nonexistent. The concurrence points to "freedom of the press" objections that were made against the refusal of some Federalist newspapers to publish unsigned essays opposing the proposed Constitution (on the ground that they might be the work of foreign agents). See ante, at 364-366 (Thomas, J., concurring in judgment). But, of course, if every partisan cry of "freedom of the press" were accepted as valid, our Constitution would be unrecognizable; and if one were to generalize from these particular cries, the First Amendment would be not only a protection for newspapers, but a restriction upon them. Leaving aside, however, the fact that no governmental action was involved, the Anti-Federalists had a point, inasmuch as the editorial proscription of anonymity applied only to them, and thus had the vice of viewpoint discrimination. (Hence the comment by Philadelphiensis, *374 quoted in the concurrence: "`Here we see pretty plainly through [the Federalists'] excellent regulation of the press, how things are to be carried on after the adoption of the new constitution.' " Ante, at 365 (quoting Philadelphiensis, Essay I, Independent Gazetteer, Nov. 7, 1787, in 3 Complete Anti-Federalist 103 (H. Storing ed. 1981)).)
The concurrence recounts other pre- and post-Revolution examples of defense of anonymity in the name of "freedom of the press," but not a single one involves the context of restrictions imposed in connection with a free, democratic election, which is all that is at issue here. For many of them, moreover, such as the 1735 Zenger trial, ante, at 361, the 1779 "Leonidas" controversy in the Continental Congress, ibid., and the 1779 action by the New Jersey Legislative Council against Isaac Collins, ante, at 362, the issue of anonymity was incidental to the (unquestionably free-speech) issue of whether criticism of the government could be punished by the state.
Thus, the sum total of the historical evidence marshaled by the concurrence for the principle of constitutional entitlement to anonymous electioneering is partisan claims in the debate on ratification (which was almost like an election) that a viewpoint-based restriction on anonymity by newspaper editors violates freedom of speech. This absence of historical testimony concerning the point before us is hardly remarkable. The issue of a governmental prohibition upon anonymous electioneering in particular (as opposed to a government prohibition upon anonymous publication in general) simply never arose. Indeed, there probably never arose even the abstract question whether electoral openness and regularity was worth such a governmental restriction upon the normal right to anonymous speech. The idea of close government regulation of the electoral process is a more modern phenomenon, arriving in this country in the late 1800's. See Burson v. Freeman, supra, at 203-205.
*375 What we have, then, is the most difficult case for determining the meaning of the Constitution. No accepted existence of governmental restrictions of the sort at issue here demonstrates their constitutionality, but neither can their nonexistence clearly be attributed to constitutional objections. In such a case, constitutional adjudication necessarily involves not just history but judgment: judgment as to whether the government action under challenge is consonant with the concept of the protected freedom (in this case, the freedom of speech and of the press) that existed when the constitutional protection was accorded. In the present case, absent other indication, I would be inclined to agree with the concurrence that a society which used anonymous political debate so regularly would not regard as constitutional even moderate restrictions made to improve the election process. (I would, however, want further evidence of common practice in 1868, since I doubt that the Fourteenth Amendment time-warped the post-Civil War States back to the Revolution.)
But there is other indication, of the most weighty sort: the widespread and long-standing traditions of our people. Principles of liberty fundamental enough to have been embodied within constitutional guarantees are not readily erased from the Nation's consciousness. A governmental practice that has become general throughout the United States, and particularly one that has the validation of long, accepted usage, bears a strong presumption of constitutionality. And that is what we have before us here. Ohio Rev. Code Ann. ง 3599.09(A) (1988) was enacted by the General Assembly of the State of Ohio almost 80 years ago. See Act of May 27, 1915, 1915 Ohio Leg. Acts 350. Even at the time of its adoption, there was nothing unique or extraordinary about it. The earliest statute of this sort was adopted by Massachusetts in 1890, little more than 20 years after the Fourteenth Amendment was ratified. No *376 less than 24 States had similar laws by the end of World War I,[1] and today every State of the Union except California has one,[2] as does the District of Columbia, see D. C. Code *377 Ann. ง 1-1420 (1992), and as does the Federal Government where advertising relating to candidates for federal office is concerned, see 2 U.S. C. ง 441d(a). Such a universal[3] and long-established American legislative practice must be given precedence, I think, over historical and academic speculation regarding a restriction that assuredly does not go to the heart of free speech.
It can be said that we ignored a tradition as old, and almost as widespread, in Texas v. Johnson, 491 U.S. 397 (1989), where we held unconstitutional a state law prohibiting desecration of the United States flag. See also United States v. Eichman, 496 U.S. 310 (1990). But those cases merely *378 stand for the proposition that post adoption tradition cannot alter the core meaning of a constitutional guarantee. As we said in Johnson, "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." 491 U.S., at 414. Prohibition of expression of contempt for the flag, whether by contemptuous words, see Street v. New York, 394 U.S. 576 (1969), or by burning the flag, came, we said, within that "bedrock principle." The law at issue here, by contrast, forbids the expression of no idea, but merely requires identification of the speaker when the idea is uttered in the electoral context. It is at the periphery of the First Amendment, like the law at issue in Burson, where we took guidance from tradition in upholding against constitutional attack restrictions upon electioneering in the vicinity of polling places, see 504 U.S., at 204-206 (plurality opinion); id., at 214-216 (Scalia, J., concurring in judgment).
II
The foregoing analysis suffices to decide this case for me. Where the meaning of a constitutional text (such as "the freedom of speech") is unclear, the widespread and longaccepted practices of the American people are the best indication of what fundamental beliefs it was intended to enshrine. Even if I were to close my eyes to practice, however, and were to be guided exclusively by deductive analysis from our case law, I would reach the same result.
Three basic questions must be answered to decide this case. Two of them are readily answered by our precedents; the third is readily answered by common sense and by a decent regard for the practical judgment of those more familiar with elections than we are. The first question is whether protection of the election process justifies limitations upon speech that cannot constitutionally be imposed generally. (If not, Talley v. California, which invalidated a flat ban on *379 all anonymous leaf letting, controls the decision here.) Our cases plainly answer that question in the affirmativeโindeed, they suggest that no justification for regulation is more compelling than protection of the electoral process. "Other rights, even the most basic, are illusory if the right to vote is undermined." Wesberry v. Sanders, 376 U.S. 1, 17 (1964). The State has a "compelling interest in preserving the integrity of its election process." Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 231 (1989). So significant have we found the interest in protecting the electoral process to be that we have approved the prohibition of political speech entirely in areas that would impede that process. Burson, supra, at 204-206 (plurality opinion).
The second question relevant to our decision is whether a "right to anonymity" is such a prominent value in our constitutional system that even protection of the electoral process cannot be purchased at its expense. The answer, again, is clear: no. Several of our cases have held that in peculiar circumstances the compelled disclosure of a person's identity would unconstitutionally deter the exercise of First Amendment associational rights. See, e. g., Brown v. Socialist Workers `74 Campaign Comm. (Ohio), 459 U.S. 87 (1982); Bates v. Little Rock, 361 U.S. 516 (1960); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958). But those cases did not acknowledge any general right to anonymity, or even any right on the part of all citizens to ignore the particular laws under challenge. Rather, they recognized a right to an exemption from otherwise valid disclosure requirements on the part of someone who could show a "reasonable probability" that the compelled disclosure would result in "threats, harassment, or reprisals from either Government officials or private parties." This last quotation is from Buckley v. Valeo, 424 U. S., at 74 (per curiam), which prescribed the safety valve of a similar exemption in upholding the disclosure requirements of the Federal Election Campaign Act. That is the answer our case law provides *380 to the Court's fear about the "tyranny of the majority," ante, at 357, and to its concern that "`[p]ersecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all,' " ante, at 342 (quoting Talley, 362 U. S., at 64). Anonymity can still be enjoyed by those who require it, without utterly destroying useful disclosure laws. The record in this case contains not even a hint that Mrs. McIntyre feared "threats, harassment, or reprisals"; indeed, she placed her name on some of her fliers and meant to place it on all of them. See App. 12, 36-40.
The existence of a generalized right of anonymity in speech was rejected by this Court in Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913), which held that newspapers desiring the privilege of second-class postage could be required to provide to the Postmaster General, and to publish, a statement of the names and addresses of their editors, publishers, business managers, and owners. We rejected the argument that the First Amendment forbade the requirement of such disclosure. Id., at 299. The provision that gave rise to that case still exists, see 39 U.S. C. ง 3685, and is still enforced by the Postal Service. It is one of several federal laws seemingly invalidated by today's opinion.
The Court's unprecedented protection for anonymous speech does not even have the virtue of establishing a clear (albeit erroneous) rule of law. For after having announced that this statute, because it "burdens core political speech," requires "`exacting scrutiny' " and must be "narrowly tailored to serve an overriding state interest," ante, at 347 (ordinarily the kiss of death), the opinion goes on to proclaim soothingly (and unhelpfully) that "a State's enforcement interest might justify a more limited identification requirement," ante, at 353. See also ante, at 358 (Ginsburg, J., concurring) ("We do not . . . hold that the State may not in other, larger circumstances require the speaker to disclose its interest by disclosing its identity"). Perhaps, then, not *381 all the state statutes I have alluded to are invalid, but just some of them; or indeed maybe all of them remain valid in "larger circumstances"! It may take decades to work out the shape of this newly expanded right-to-speak-incognito, even in the elections field. And in other areas, of course, a whole new boutique of wonderful First Amendment litigation opens its doors. Must a parade permit, for example, be issued to a group that refuses to provide its identity, or that agrees to do so only under assurance that the identity will not be made public? Must a municipally owned theater that is leased for private productions book anonymously sponsored presentations? Must a government periodical that has a "letters to the editor" column disavow the policy that most newspapers have against the publication of anonymous letters? Must a public university that makes its facilities available for a speech by Louis Farrakhan or David Duke refuse to disclose the on-campus or off-campus group that has sponsored or paid for the speech? Must a municipal "public-access" cable channel permit anonymous (and masked) performers? The silliness that follows upon a generalized right to anonymous speech has no end.
The third and last question relevant to our decision is whether the prohibition of anonymous campaigning is effective in protecting and enhancing democratic elections. In answering this question no, the Justices of the majority set their own viewsโon a practical matter that bears closely upon the real-life experience of elected politicians and not upon that of unelected judgesโup against the views of 49 (and perhaps all 50, see n. 4, supra ) state legislatures and the Federal Congress. We might also add to the list on the other side the legislatures of foreign democracies: Australia, Canada, and England, for example, all have prohibitions upon anonymous campaigning. See, e. g., Commonwealth Electoral Act 1918, ง 328 (Australia); Canada Elections Act, R. S. C., ch. E-2, ง 261 (1985); Representation of the People Act, 1983, ง 110 (England). How is it, one must wonder, that *382 all of these elected legislators, from around the country and around the world, could not see what six Justices of this Court see so clearly that they are willing to require the entire Nation to act upon it: that requiring identification of the source of campaign literature does not improve the quality of the campaign?
The Court says that the State has not explained "why it can more easily enforce the direct bans on disseminating false documents against anonymous authors and distributors than against wrongdoers who might use false names and addresses in an attempt to avoid detection." Ante, at 352-353. I am not sure what this complicated comparison means. I am sure, however, that (1) a person who is required to put his name to a document is much less likely to lie than one who can lie anonymously, and (2) the distributor of a leaflet which is unlawful because it is anonymous runs much more risk of immediate detection and punishment than the distributor of a leaflet which is unlawful because it is false. Thus, people will be more likely to observe a signing requirement than a naked "no falsity" requirement; and, having observed that requirement, will then be significantly less likely to lie in what they have signed.
But the usefulness of a signing requirement lies not only in promoting observance of the law against campaign falsehoods (though that alone is enough to sustain it). It lies also in promoting a civil and dignified level of campaign debateโ which the State has no power to command, but ample power to encourage by such undemanding measures as a signature requirement. Observers of the past few national elections have expressed concern about the increase of character assassinationโ"mudslinging" is the colloquial termโengaged in by political candidates and their supporters to the detriment of the democratic process. Not all of this, in fact not much of it, consists of actionable untruth; most is innuendo, or demeaning characterization, or mere disclosure of items of personal life that have no bearing upon suitability for office. *383 Imagine how much all of this would increase if it could be done anonymously. The principal impediment against it is the reluctance of most individuals and organizations to be publicly associated with uncharitable and uncivil expression. Consider, moreover, the increased potential for "dirty tricks." It is not unheard-of for campaign operatives to circulate material over the name of their opponents or their opponents' supporters (a violation of election laws) in order to attract or alienate certain interest groups. See, e. g., B. Felknor, Political Mischief: Smear, Sabotage, and Reform in U. S. Elections 111-112 (1992) (fake United Mine Workers' newspaper assembled by the National Republican Congressional Committee); New York v. Duryea, 76 Misc. 2d 948, 351 N. Y. S. 2d 978 (Sup. 1974) (letters purporting to be from the "Action Committee for the Liberal Party" sent by Republicans). How much easierโand sanction free!โit would be to circulate anonymous material (for example, a really tasteless, though not actionably false, attack upon one's own candidate) with the hope and expectation that it will be attributed to, and held against, the other side.
The Court contends that demanding the disclosure of the pamphleteer's identity is no different from requiring the disclosure of any other information that may reduce the persuasiveness of the pamphlet's message. See ante, at 348-349. It cites Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), which held it unconstitutional to require a newspaper that had published an editorial critical of a particular candidate to furnish space for that candidate to reply. But it is not usual for a speaker to put forward the best arguments against himself, and it is a great imposition upon free speech to make him do so. Whereas it is quite usualโit is expectedโfor a speaker to identify himself, and requiring that is (at least when there are no special circumstances present) virtually no imposition at all.
We have approved much more onerous disclosure requirements in the name of fair elections. In Buckley v. Valeo, 424 *384 U. S. 1 (1976), we upheld provisions of the Federal Election Campaign Act that required private individuals to report to the Federal Election Commission independent expenditures made for communications advocating the election or defeat of a candidate for federal office. Id., at 80. Our primary rationale for upholding this provision was that it served an "informational interest" by "increas[ing] the fund of information concerning those who support the candidates." Id., at 81. The provision before us here serves the same informational interest, as well as more important interests, which I have discussed above. The Court's attempt to distinguish Buckley, see ante, at 356, would be unconvincing, even if it were accurate in its statement that the disclosure requirement there at issue "reveals far less information" than requiring disclosure of the identity of the author of a specific campaign statement. That happens not to be accurate, since the provision there at issue required not merely "[d]isclosure of an expenditure and its use, without more." Ante, at 355. It required, among other things:
"the identification of each person to whom expenditures have been made . . . within the calendar year in an aggregate amount or value in excess of $100, the amount, date, and purpose of each such expenditure and the name and address of, and office sought by, each candi- date on whose behalf such expenditure was made." 2 U.S. C. ง 434(b)(9) (1970 ed., Supp. IV) (emphasis added).
See also 2 U.S. C. ง 434(e) (1970 ed., Supp. IV). (Both reproduced in Appendix to Buckley, supra, at 158, 160.) Surely in many if not most cases, this information will readily permit identification of the particular message that the would-be-anonymous campaigner sponsored. Besides which the burden of complying with this provision, which includes the filing of quarterly reports, is infinitely more onerous than Ohio's simple requirement for signature of *385 campaign literature. If Buckley remains the law, this is an easy case.
* * *
I do not know where the Court derives its perception that "anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent." Ante, at 357. I can imagine no reason why an anonymous leaflet is any more honorable, as a general matter, than an anonymous phone call or an anonymous letter. It facilitates wrong by eliminating accountability, which is ordinarily the very purpose of the anonymity. There are of course exceptions, and where anonymity is needed to avoid "threats, harassment, or reprisals" the First Amendment will require an exemption from the Ohio law. Cf. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958). But to strike down the Ohio law in its general applicationโand similar laws of 49 other States and the Federal Governmentโ on the ground that all anonymous communication is in our society traditionally sacrosanct, seems to me a distortion of the past that will lead to a coarsening of the future.
I respectfully dissent.
| At a time when both political branches of Government and both political parties reflect a popular desire to leave more decision making authority to the States, today's decision moves in the opposite direction, adding to the legacy of inflexible central mandates (irrevocable even by Congress) imposed by this Court's constitutional jurisprudence. In an opinion which reads as though it is addressing some peculiar law like the Los Angeles municipal ordinance at issue in the Court invalidates a species of protection for the election process that exists, in a variety of forms, in every State except California, and that has a pedigree dating back to the end of the 19th century. Preferring the views of the English utilitarian philosopher John Stuart Mill, ante, at 357, to the considered judgment of the American people's elected representatives from coast to coast, the Court discovers a hitherto unknown right-to-beunknown while engaging in electoral politics. I dissent from this imposition of free-speech imperatives that are demonstrably not those of the American people today, and that there is inadequate reason to believe were those of the society that begat the First Amendment or the Fourteenth. I The question posed by the present case is not the easiest sort to answer for those who adhere to the Court's (and the *372 society's) traditional view that the Constitution bears its original meaning and is unchanging. Under that view, "[o]n every question of construction, [we should] carry ourselves back to the time when the Constitution was adopted; recollect the spirit manifested in the debates; and instead of trying [to find] what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." T. Jefferson, Letter to William Johnson (June 12, 1823), in 15 Writings of Thomas Jefferson 39, 9 (A. Lipscomb ed. 190). That technique is simple of application when government conduct that is claimed to violate the Bill of Rights or the Fourteenth Amendment is shown, upon investigation, to have been engaged in without objection at the very time the Bill of Rights or the Fourteenth Amendment was adopted. There is no doubt, for example, that laws against libel and obscenity do not violate "the freedom of speech" to which the First Amendment refers; they existed and were universally approved in 91. Application of the principle of an unchanging Constitution is also simple enough at the other extreme, where the government conduct at issue was not engaged in at the time of adoption, and there is ample evidence that the reason it was not engaged in is that it was thought to violate the right embodied in the constitutional guarantee. Racks and thumbscrews, well-known instruments for inflicting pain, were not in use because they were regarded as cruel punishments. The present case lies between those two extremes. Anonymous electioneering was not prohibited by law in 91 or in 1868. In fact, it was widely practiced at the earlier date, an understandable legacy of the revolutionary era in which political dissent could produce governmental reprisal. I need not dwell upon the evidence of that, since it is described at length in today's concurrence. See ante, at 360โ 369 (Thomas, J., concurring in judgment). The practice of anonymous electioneering may have been less general in 1868, *373 when the Fourteenth Amendment was adopted, but at least as late as 1837 it was respectable enough to be engaged in by Abraham Lincoln. See 1 A. Beveridge, Abraham Lincoln 1809-1858, pp. 215-216 (1928); 1 Uncollected Works of Abraham Lincoln 155-161 (R. Wilson ed. 197). But to prove that anonymous electioneering was used frequently is not to establish that it is a constitutional right. Quite obviously, not every restriction upon expression that did not exist in 91 or in 1868 is ipso facto unconstitutional, or else modern election laws such as those involved in and would be prohibited, as would (to mention only a few other categories) modern anti noise regulation of the sort involved in and and modern parade-permitting regulation of the sort involved in Evidence that anonymous electioneering was regarded as a constitutional right is sparse, and as far as I am aware evidence that it was generally regarded as such is nonexistent. The concurrence points to "freedom of the press" objections that were made against the refusal of some Federalist newspapers to publish unsigned essays opposing the proposed Constitution (on the ground that they might be the work of foreign agents). See ante, at 36-366 (Thomas, J., concurring in judgment). But, of course, if every partisan cry of "freedom of the press" were accepted as valid, our Constitution would be unrecognizable; and if one were to generalize from these particular cries, the First Amendment would be not only a protection for newspapers, but a restriction upon them. Leaving aside, however, the fact that no governmental action was involved, the Anti-Federalists had a point, inasmuch as the editorial proscription of anonymity applied only to them, and thus had the vice of viewpoint discrimination. (Hence the comment by Philadelphiensis, *37 quoted in the concurrence: "`Here we see pretty plainly through [the Federalists'] excellent regulation of the press, how things are to be carried on after the adoption of the new constitution.' " Ante, at 365 (quoting Philadelphiensis, Essay I, Independent Gazetteer, Nov. 7, 87, in 3 Complete Anti-Federalist 103 (H. Storing ed. 1981)).) The concurrence recounts other pre- and post-Revolution examples of defense of anonymity in the name of "freedom of the press," but not a single one involves the context of restrictions imposed in connection with a free, democratic election, which is all that is at issue here. For many of them, moreover, such as the 35 Zenger trial, ante, at 361, the 79 "Leonidas" controversy in the Continental Congress, ib and the 79 action by the New Jersey Legislative Council against Isaac Collins, ante, at 362, the issue of anonymity was incidental to the (unquestionably free-speech) issue of whether criticism of the government could be punished by the state. Thus, the sum total of the historical evidence marshaled by the concurrence for the principle of constitutional entitlement to anonymous electioneering is partisan claims in the debate on ratification (which was almost like an election) that a viewpoint-based restriction on anonymity by newspaper editors violates freedom of speech. This absence of historical testimony concerning the point before us is hardly remarkable. The issue of a governmental prohibition upon anonymous electioneering in particular (as opposed to a government prohibition upon anonymous publication in general) simply never arose. Indeed, there probably never arose even the abstract question whether electoral openness and regularity was worth such a governmental restriction upon the normal right to anonymous speech. The idea of close government regulation of the electoral process is a more modern phenomenon, arriving in this country in the late 1800's. See *375 What we have, then, is the most difficult case for determining the meaning of the Constitution. No accepted existence of governmental restrictions of the sort at issue here demonstrates their constitutionality, but neither can their nonexistence clearly be attributed to constitutional objections. In such a case, constitutional adjudication necessarily involves not just history but judgment: judgment as to whether the government action under challenge is consonant with the concept of the protected freedom (in this case, the freedom of speech and of the press) that existed when the constitutional protection was accorded. In the present case, absent other indication, I would be inclined to agree with the concurrence that a society which used anonymous political debate so regularly would not regard as constitutional even moderate restrictions made to improve the election process. (I would, however, want further evidence of common practice in 1868, since I doubt that the Fourteenth Amendment time-warped the post-Civil War States back to the Revolution.) But there is other indication, of the most weighty sort: the widespread and long-standing traditions of our people. Principles of liberty fundamental enough to have been embodied within constitutional guarantees are not readily erased from the Nation's consciousness. A governmental practice that has become general throughout the United States, and particularly one that has the validation of long, accepted usage, bears a strong presumption of constitutionality. And that is what we have before us here. Ohio Rev. Code Ann. ง 3599.09(A) (1988) was enacted by the General Assembly of the State of Ohio almost 80 years ago. See Act of May 27, 1915, 1915 Ohio Leg. Acts 350. Even at the time of its adoption, there was nothing unique or extraordinary about it. The earliest statute of this sort was adopted by Massachusetts in 1890, little more than 20 years after the Fourteenth Amendment was ratified. No *376 less than 2 States had similar laws by the end of World War I,[1] and today every State of the Union except California has one,[2] as does the District of Columbia, see D. C. Code *377 Ann. ง 1-120 and as does the Federal Government where advertising relating to candidates for federal office is concerned, see 2 U.S. C. ง 1d(a). Such a universal[3] and long-established American legislative practice must be given precedence, I think, over historical and academic speculation regarding a restriction that assuredly does not go to the heart of free speech. It can be said that we ignored a tradition as old, and almost as widespread, in where we held unconstitutional a state law prohibiting desecration of the United States flag. See also United But those cases merely *378 stand for the proposition that post adoption tradition cannot alter the core meaning of a constitutional guarantee. As we said in Johnson, "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Prohibition of expression of contempt for the flag, whether by contemptuous words, see or by burning the flag, came, we said, within that "bedrock principle." The law at issue here, by contrast, forbids the expression of no idea, but merely requires identification of the speaker when the idea is uttered in the electoral context. It is at the periphery of the First Amendment, like the law at issue in where we took guidance from tradition in upholding against constitutional attack restrictions upon electioneering in the vicinity of polling places, see -206 ; II The foregoing analysis suffices to decide this case for me. Where the meaning of a constitutional text (such as "the freedom of speech") is unclear, the widespread and longaccepted practices of the American people are the best indication of what fundamental beliefs it was intended to enshrine. Even if I were to close my eyes to practice, however, and were to be guided exclusively by deductive analysis from our case law, I would reach the same result. Three basic questions must be answered to decide this case. Two of them are readily answered by our precedents; the third is readily answered by common sense and by a decent regard for the practical judgment of those more familiar with elections than we are. The first question is whether protection of the election process justifies limitations upon speech that cannot constitutionally be imposed generally. (If not, which invalidated a flat ban on *379 all anonymous leaf letting, controls the decision here.) Our cases plainly answer that question in the affirmativeโindeed, they suggest that no justification for regulation is more compelling than protection of the electoral process. "Other rights, even the most basic, are illusory if the right to vote is undermined." The State has a "compelling interest in preserving the integrity of its election process." So significant have we found the interest in protecting the electoral process to be that we have approved the prohibition of political speech entirely in areas that would impede that process. The second question relevant to our decision is whether a "right to anonymity" is such a prominent value in our constitutional system that even protection of the electoral process cannot be purchased at its expense. The answer, again, is clear: no. Several of our cases have held that in peculiar circumstances the compelled disclosure of a person's identity would unconstitutionally deter the exercise of First Amendment associational rights. See, e. g., ; ; But those cases did not acknowledge any general right to anonymity, or even any right on the part of all citizens to ignore the particular laws under challenge. Rather, they recognized a right to an exemption from otherwise valid disclosure requirements on the part of someone who could show a "reasonable probability" that the compelled disclosure would result in "threats, harassment, or reprisals from either Government officials or private parties." This last quotation is from which prescribed the safety valve of a similar exemption in upholding the disclosure requirements of the Federal Election Campaign Act. That is the answer our case law provides *380 to the Court's fear about the "tyranny of the majority," ante, at 357, and to its concern that "`[p]ersecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all,' " ante, at 32 (quoting Talley, ). Anonymity can still be enjoyed by those who require it, without utterly destroying useful disclosure laws. The record in this case contains not even a hint that Mrs. McIntyre feared "threats, harassment, or reprisals"; indeed, she placed her name on some of her fliers and meant to place it on all of them. See App. 12, 36-0. The existence of a generalized right of anonymity in speech was rejected by this Court in Lewis Publishing which held that newspapers desiring the privilege of second-class postage could be required to provide to the Postmaster General, and to publish, a statement of the names and addresses of their editors, publishers, business managers, and owners. We rejected the argument that the First Amendment forbade the requirement of such disclosure. The provision that gave rise to that case still exists, see 39 U.S. C. ง 3685, and is still enforced by the Postal Service. It is one of several federal laws seemingly invalidated by today's opinion. The Court's unprecedented protection for anonymous speech does not even have the virtue of establishing a clear (albeit erroneous) rule of law. For after having announced that this statute, because it "burdens core political speech," requires "`exacting scrutiny' " and must be "narrowly tailored to serve an overriding state interest," ante, at 37 (ordinarily the kiss of death), the opinion goes on to proclaim soothingly (and unhelpfully) that "a State's enforcement interest might justify a more limited identification requirement," ante, at 353. See also ante, at 358 (Ginsburg, J., concurring) ("We do not hold that the State may not in other, larger circumstances require the speaker to disclose its interest by disclosing its identity"). Perhaps, then, not *381 all the state statutes I have alluded to are invalid, but just some of them; or indeed maybe all of them remain valid in "larger circumstances"! It may take decades to work out the shape of this newly expanded right-to-speak-incognito, even in the elections field. And in other areas, of course, a whole new boutique of wonderful First Amendment litigation opens its doors. Must a parade permit, for example, be issued to a group that refuses to provide its identity, or that agrees to do so only under assurance that the identity will not be made public? Must a municipally owned theater that is leased for private productions book anonymously sponsored presentations? Must a government periodical that has a "letters to the editor" column disavow the policy that most newspapers have against the publication of anonymous letters? Must a public university that makes its facilities available for a speech by Louis Farrakhan or David Duke refuse to disclose the on-campus or off-campus group that has sponsored or paid for the speech? Must a municipal "public-access" cable channel permit anonymous (and masked) performers? The silliness that follows upon a generalized right to anonymous speech has no end. The third and last question relevant to our decision is whether the prohibition of anonymous campaigning is effective in protecting and enhancing democratic elections. In answering this question no, the Justices of the majority set their own viewsโon a practical matter that bears closely upon the real-life experience of elected politicians and not upon that of unelected judgesโup against the views of 9 (and perhaps all 50, see n. ) state legislatures and the Federal Congress. We might also add to the list on the other side the legislatures of foreign democracies: Australia, Canada, and England, for example, all have prohibitions upon anonymous campaigning. See, e. g., Commonwealth Electoral Act 1918, ง 328 (Australia); Canada Elections Act, R. S. C., ch. E-2, ง 261 (1985); Representation of the People Act, 1983, ง 110 (England). How is it, one must wonder, that *382 all of these elected legislators, from around the country and around the world, could not see what six Justices of this Court see so clearly that they are willing to require the entire Nation to act upon it: that requiring identification of the source of campaign literature does not improve the quality of the campaign? The Court says that the State has not explained "why it can more easily enforce the direct bans on disseminating false documents against anonymous authors and distributors than against wrongdoers who might use false names and addresses in an attempt to avoid detection." Ante, at 352-353. I am not sure what this complicated comparison means. I am sure, however, that (1) a person who is required to put his name to a document is much less likely to lie than one who can lie anonymously, and (2) the distributor of a leaflet which is unlawful because it is anonymous runs much more risk of immediate detection and punishment than the distributor of a leaflet which is unlawful because it is false. Thus, people will be more likely to observe a signing requirement than a naked "no falsity" requirement; and, having observed that requirement, will then be significantly less likely to lie in what they have signed. But the usefulness of a signing requirement lies not only in promoting observance of the law against campaign falsehoods (though that alone is enough to sustain it). It lies also in promoting a civil and dignified level of campaign debateโ which the State has no power to command, but ample power to encourage by such undemanding measures as a signature requirement. Observers of the past few national elections have expressed concern about the increase of character assassinationโ"mudslinging" is the colloquial termโengaged in by political candidates and their supporters to the detriment of the democratic process. Not all of this, in fact not much of it, consists of actionable untruth; most is innuendo, or demeaning characterization, or mere disclosure of items of personal life that have no bearing upon suitability for office. *383 Imagine how much all of this would increase if it could be done anonymously. The principal impediment against it is the reluctance of most individuals and organizations to be publicly associated with uncharitable and uncivil expression. Consider, moreover, the increased potential for "dirty tricks." It is not unheard-of for campaign operatives to circulate material over the name of their opponents or their opponents' supporters (a violation of election laws) in order to attract or alienate certain interest groups. See, e. g., B. Felknor, Political Mischief: Smear, Sabotage, and Reform in U. S. Elections 111-112 (fake United Mine Workers' newspaper assembled by the National Republican Congressional Committee); New 76 Misc. 2d 98, (Sup. 197) How much easierโand sanction free!โit would be to circulate anonymous material (for example, a really tasteless, though not actionably false, attack upon one's own candidate) with the hope and expectation that it will be attributed to, and held against, the other side. The Court contends that demanding the disclosure of the pamphleteer's identity is no different from requiring the disclosure of any other information that may reduce the persuasiveness of the pamphlet's message. See ante, at 38-39. It cites Miami Herald Publishing 18 U.S. 21 (197), which held it unconstitutional to require a newspaper that had published an editorial critical of a particular candidate to furnish space for that candidate to reply. But it is not usual for a speaker to put forward the best arguments against himself, and it is a great imposition upon free speech to make him do so. Whereas it is quite usualโit is expectedโfor a speaker to identify himself, and requiring that is (at least when there are no special circumstances present) virtually no imposition at all. We have approved much more onerous disclosure requirements in the name of fair elections. In 2 *38 U. S. 1 we upheld provisions of the Federal Election Campaign Act that required private individuals to report to the Federal Election Commission independent expenditures made for communications advocating the election or defeat of a candidate for federal office. Our primary rationale for upholding this provision was that it served an "informational interest" by "increas[ing] the fund of information concerning those who support the candidates." The provision before us here serves the same informational interest, as well as more important interests, which I have discussed above. The Court's attempt to distinguish see ante, at 356, would be unconvincing, even if it were accurate in its statement that the disclosure requirement there at issue "reveals far less information" than requiring disclosure of the identity of the author of a specific campaign statement. That happens not to be accurate, since the provision there at issue required not merely "[d]isclosure of an expenditure and its use, without more." Ante, at 355. It required, among other things: "the identification of each person to whom expenditures have been made within the calendar year in an aggregate amount or value in excess of $100, the amount, date, and purpose of each such expenditure and the name and address of, and office sought by, each candi- date on whose behalf such expenditure was made." 2 U.S. C. ง 3(b)(9) (1970 ed., Supp. IV) (emphasis added). See also 2 U.S. C. ง 3(e) (1970 ed., Supp. IV). (Both reproduced in Appendix to) Surely in many if not most cases, this information will readily permit identification of the particular message that the would-be-anonymous campaigner sponsored. Besides which the burden of complying with this provision, which includes the filing of quarterly reports, is infinitely more onerous than Ohio's simple requirement for signature of *385 campaign literature. If remains the law, this is an easy case. * * * I do not know where the Court derives its perception that "anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent." Ante, at 357. I can imagine no reason why an anonymous leaflet is any more honorable, as a general matter, than an anonymous phone call or an anonymous letter. It facilitates wrong by eliminating accountability, which is ordinarily the very purpose of the anonymity. There are of course exceptions, and where anonymity is needed to avoid "threats, harassment, or reprisals" the First Amendment will require an exemption from the Ohio law. Cf. But to strike down the Ohio law in its general applicationโand similar laws of 9 other States and the Federal Governmentโ on the ground that all anonymous communication is in our society traditionally sacrosanct, seems to me a distortion of the past that will lead to a coarsening of the future. I respectfully dissent. |
Justice Thomas | second_dissenting | false | Philip Morris USA v. Williams | 2007-02-20T00:00:00 | null | https://www.courtlistener.com/opinion/145758/philip-morris-usa-v-williams/ | https://www.courtlistener.com/api/rest/v3/clusters/145758/ | 2,007 | 2006-017 | 1 | 5 | 4 | I join Justice GINSBURG's dissent in full. I write separately to reiterate my view that "`the Constitution does not constrain the size of punitive damages awards.'" State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U.S. 408, 429-430, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003) (THOMAS, J., dissenting) (quoting Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 443, 121 S. Ct. 1678, 149 L. Ed. 2d 674 (2001) (THOMAS, J., concurring)). It matters not that the Court styles today's holding as "procedural" because the "procedural" rule is simply a confusing implementation of the substantive due process regime this Court has created for punitive damages. See Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 26-27, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991) (SCALIA, J., concurring in judgment) ("In 1868 ... punitive damages were undoubtedly an established part of the American common law of torts. It is ... clear that *1068 no particular procedures were deemed necessary to circumscribe a jury's discretion regarding the award of such damages, or their amount"). Today's opinion proves once again that this Court's punitive damages jurisprudence is "insusceptible of principled application." BMW of North America, Inc. v. Gore, 517 U.S. 559, 599, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996) (SCALIA, J., joined by THOMAS, J., dissenting).
Justice GINSBURG, with whom Justice SCALIA and Justice THOMAS join, dissenting.
The purpose of punitive damages, it can hardly be denied, is not to compensate, but to punish. Punish for what? Not for harm actually caused "strangers to the litigation," ante, at 1063, the Court states, but for the reprehensibility of defendant's conduct, ante, at 1063-1064. "[C]onduct that risks harm to many," the Court observes, "is likely more reprehensible than conduct that risks harm to only a few." Ante, at 1065. The Court thus conveys that, when punitive damages are at issue, a jury is properly instructed to consider the extent of harm suffered by others as a measure of reprehensibility, but not to mete out punishment for injuries in fact sustained by nonparties. Ante, at 1063-1065. The Oregon courts did not rule otherwise. They have endeavored to follow our decisions, most recently in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996), and State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U.S. 408, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003), and have "deprive[d] [no jury] of proper legal guidance," ante, at 1064. Vacation of the Oregon Supreme Court's judgment, I am convinced, is unwarranted.
The right question regarding reprehensibility, the Court acknowledges, ante, at ____8, would train on "the harm that Philip Morris was prepared to inflict on the smoking public at large." Ibid. (quoting 340 Or. 35, 51, 127 P.3d 1165, 1175 (2006)). See also 340 Ore., at 55, 127 P.3d, at 1177 ("[T]he jury, in assessing the reprehensibility of Philip Morris's actions, could consider evidence of similar harm to other Oregonians caused (or threatened) by the same conduct." (emphasis added)). The Court identifies no evidence introduced and no charge delivered inconsistent with that inquiry.
The Court's order vacating the Oregon Supreme Court's judgment is all the more inexplicable considering that Philip Morris did not preserve any objection to the charges in fact delivered to the jury, to the evidence introduced at trial, or to opposing counsel's argument. The sole objection Philip Morris preserved was to the trial court's refusal to give defendant's requested charge number 34. See id., at 54, 127 P.3d, at 1176. The proposed instruction read in pertinent part:
"If you determine that some amount of punitive damages should be imposed on the defendant, it will then be your task to set an amount that is appropriate. This should be such amount as you believe is necessary to achieve the objectives of deterrence and punishment. While there is no set formula to be applied in reaching an appropriate amount, I will now advise you of some of the factors that you may wish to consider in this connection.
"(1) The size of any punishment should bear a reasonable relationship to the harm caused to Jesse Williams by the defendant's punishable misconduct. Although you may consider the extent of harm suffered by others in determining what that reasonable relationship is, you are not to punish the defendant for the impact of its alleged misconduct on other *1069 persons, who may bring lawsuits of their own in which other juries can resolve their claims and award punitive damages for those harms, as such other juries see fit.
.....
"(2) The size of the punishment may appropriately reflect the degree of reprehensibility of the defendant's conductthat is, how far the defendant has departed from accepted societal norms of conduct." App. 280a.
Under that charge, just what use could the jury properly make of "the extent of harm suffered by others"? The answer slips from my grasp. A judge seeking to enlighten rather than confuse surely would resist delivering the requested charge.
The Court ventures no opinion on the propriety of the charge proposed by Philip Morris, though Philip Morris preserved no other objection to the trial proceedings. Rather than addressing the one objection Philip Morris properly preserved, the Court reaches outside the bounds of the case as postured when the trial court entered its judgment. I would accord more respectful treatment to the proceedings and dispositions of state courts that sought diligently to adhere to our changing, less than crystalline precedent.
* * *
For the reasons stated, and in light of the abundant evidence of "the potential harm [Philip Morris'] conduct could have caused," ante, at 1063 (emphasis deleted), I would affirm the decision of the Oregon Supreme Court.
| I join Justice GINSBURG's dissent in full. I write separately to reiterate my view that "`the Constitution does not constrain the size of punitive damages awards.'" State Farm Mut. Automobile Ins. ). It matters not that the Court styles today's holding as "procedural" because the "procedural" rule is simply a confusing implementation of the substantive due process regime this Court has created for punitive damages. See Pacific Mut. Life Ins. ("In 1868 punitive damages were undoubtedly an established part of the American common law of torts. It is clear that *1068 no particular procedures were deemed necessary to circumscribe a jury's discretion regarding the award of such damages, or their amount"). Today's opinion proves once again that this Court's punitive damages jurisprudence is "insusceptible of principled application." BMW of North America, Justice GINSBURG, with whom Justice SCALIA and Justice THOMAS join, dissenting. The purpose of punitive damages, it can hardly be denied, is not to compensate, but to punish. Punish for what? Not for harm actually caused "strangers to the litigation," ante, at 1063, the Court states, but for the reprehensibility of defendant's conduct, ante, at 1063-1064. "[C]onduct that risks harm to many," the Court observes, "is likely more reprehensible than conduct that risks harm to only a few." Ante, at 1065. The Court thus conveys that, when punitive damages are at issue, a jury is properly instructed to consider the extent of harm suffered by others as a measure of reprehensibility, but not to mete out punishment for injuries in fact sustained by nonparties. Ante, at 1063-1065. The Oregon courts did not rule otherwise. They have endeavored to follow our decisions, most recently in BMW of North America, and State Farm Mut. Automobile Ins. and have "deprive[d] [no jury] of proper legal guidance," ante, at 1064. Vacation of the Oregon Supreme Court's judgment, I am convinced, is unwarranted. The right question regarding reprehensibility, the Court acknowledges, ante, at 8, would train on "the harm that Philip Morris was prepared to inflict on the smoking public at large." ). See The Court identifies no evidence introduced and no charge delivered inconsistent with that inquiry. The Court's order vacating the Oregon Supreme Court's judgment is all the more inexplicable considering that Philip Morris did not preserve any objection to the charges in fact delivered to the jury, to the evidence introduced at trial, or to opposing counsel's argument. The sole objection Philip Morris preserved was to the trial court's refusal to give defendant's requested charge number 34. See The proposed instruction read in pertinent part: "If you determine that some amount of punitive damages should be imposed on the defendant, it will then be your task to set an amount that is appropriate. This should be such amount as you believe is necessary to achieve the objectives of deterrence and punishment. While there is no set formula to be applied in reaching an appropriate amount, I will now advise you of some of the factors that you may wish to consider in this connection. "(1) The size of any punishment should bear a reasonable relationship to the harm caused to Jesse Williams by the defendant's punishable misconduct. Although you may consider the extent of harm suffered by others in determining what that reasonable relationship is, you are not to punish the defendant for the impact of its alleged misconduct on other *1069 persons, who may bring lawsuits of their own in which other juries can resolve their claims and award punitive damages for those harms, as such other juries see fit. "(2) The size of the punishment may appropriately reflect the degree of reprehensibility of the defendant's conductthat is, how far the defendant has departed from accepted societal norms of conduct." App. 280a. Under that charge, just what use could the jury properly make of "the extent of harm suffered by others"? The answer slips from my grasp. A judge seeking to enlighten rather than confuse surely would resist delivering the requested charge. The Court ventures no opinion on the propriety of the charge proposed by Philip Morris, though Philip Morris preserved no other objection to the trial proceedings. Rather than addressing the one objection Philip Morris properly preserved, the Court reaches outside the bounds of the case as postured when the trial court entered its judgment. I would accord more respectful treatment to the proceedings and dispositions of state courts that sought diligently to adhere to our changing, less than crystalline precedent. * * * For the reasons stated, and in light of the abundant evidence of "the potential harm [Philip Morris'] conduct could have caused," ante, at 1063 (emphasis deleted), I would affirm the decision of the Oregon Supreme Court. |
Justice Stevens | concurring | false | Maryland v. Buie | 1990-03-05T00:00:00 | null | https://www.courtlistener.com/opinion/112384/maryland-v-buie/ | https://www.courtlistener.com/api/rest/v3/clusters/112384/ | 1,990 | 1989-041 | 1 | 7 | 2 | Today the Court holds that reasonable suspicion, rather than probable cause, is necessary to support a protective sweep while an arrest is in progress. I agree with that holding and with the Court's opinion, but I believe it is important to emphasize that the standard applies only to protective sweeps. Officers conducting such a sweep must have a reasonable basis for believing that their search will reduce the danger of harm to themselves or of violent interference with their mission; in short, the search must be protective.
In this case, to justify Officer Frolich's entry into the basement, it is the State's burden to demonstrate that the officers had a reasonable basis for believing not only that someone in the basement might attack them or otherwise try to interfere with the arrest, but also that it would be safer to go down the stairs instead of simply guarding them from above until respondent had been removed from the house. The fact that respondent offered no resistance when he emerged from the basement is somewhat inconsistent with the hypothesis that the danger of an attack by a hidden confederate persisted after the arrest. Moreover, Officer Rozar testified that he was not worried about any possible danger when he arrested Buie. App. 9.[1] Officer Frolich, who conducted the search, *338 supplied no explanation for why he might have thought another person was in the basement. He said only that he "had no idea who lived there." Id., at 15. This admission is made telling by Officer Frolich's participation in the 3-day prearrest surveillance of Buie's home. Id., at 4. The Maryland Court of Appeals was under the impression that the search took place after "Buie was safely outside the house, handcuffed and unarmed." 314 Md. 151, 166, 550 A.2d 79, 86 (1988). All of this suggests that no reasonable suspicion of danger justified the entry into the basement.
Indeed, were the officers concerned about safety, one would expect them to do what Officer Rozar did before the arrest: guard the basement door to prevent surprise attacks. App. 5. As the Court indicates, Officer Frolich might, at the time of the arrest, reasonably have "look[ed] in" the already open basement door, ante, at 334, to ensure that no accomplice had followed Buie to the stairwell. But Officer Frolich did not merely "look in" the basement; he entered it.[2] That strategy is sensible if one wishes to search the basement. It is a surprising choice for an officer, worried about safety, who need not risk entering the stairwell at all.
The State may thus face a formidable task on remand. However, the Maryland courts are better equipped than are we to review the record. See, e. g., 314 Md., at 155, n. 2, 550 A.2d, at 81, n. 2 (discussing state-law rules restricting review of the record on appeal of suppression decisions); cf. United States v. Hasting, 461 U.S. 499, 516-518 (1983) (STEVENS, J., dissenting) (This Court should avoid undertaking record review functions that can "better be performed by other judges"). Moreover, the Maryland Court of Special *339 Appeals suggested that Officer Frolich's search could survive a "reasonable suspicion" test, 72 Md. App. 562, 576, 531 A.2d 1290, 1297 (1987), and the Maryland Court of Appeals has not reviewed this conclusion. I therefore agree that a remand is appropriate. | Today the Court holds that reasonable suspicion, rather than probable cause, is necessary to support a protective sweep while an arrest is in progress. I agree with that holding and with the Court's opinion, but I believe it is important to emphasize that the standard applies only to protective sweeps. Officers conducting such a sweep must have a reasonable basis for believing that their search will reduce the danger of harm to themselves or of violent interference with their mission; in short, the search must be protective. In this case, to justify Officer Frolich's entry into the basement, it is the State's burden to demonstrate that the officers had a reasonable basis for believing not only that someone in the basement might attack them or otherwise try to interfere with the arrest, but also that it would be safer to go down the stairs instead of simply guarding them from above until respondent had been removed from the house. The fact that respondent offered no resistance when he emerged from the basement is somewhat inconsistent with the hypothesis that the danger of an attack by a hidden confederate persisted after the arrest. Moreover, Officer Rozar testified that he was not worried about any possible danger when he arrested Buie. App. 9.[1] Officer Frolich, who conducted the search, *338 supplied no explanation for why he might have thought another person was in the basement. He said only that he "had no idea who lived there." This admission is made telling by Officer Frolich's participation in the 3-day prearrest surveillance of Buie's home. The Maryland Court of Appeals was under the impression that the search took place after "Buie was safely outside the house, handcuffed and unarmed." All of this suggests that no reasonable suspicion of danger justified the entry into the basement. Indeed, were the officers concerned about safety, one would expect them to do what Officer Rozar did before the arrest: guard the basement door to prevent surprise attacks. App. 5. As the Court indicates, Officer Frolich might, at the time of the arrest, reasonably have "look[ed] in" the already open basement door, ante, at 334, to ensure that no accomplice had followed Buie to the stairwell. But Officer Frolich did not merely "look in" the basement; he entered it.[] That strategy is sensible if one wishes to search the basement. It is a surprising choice for an officer, worried about safety, who need not risk entering the stairwell at all. The State may thus face a formidable task on remand. However, the Maryland courts are better equipped than are we to review the record. See, e. 314 Md., 5, n. n. ; cf. United (This Court should avoid undertaking record review functions that can "better be performed by other judges"). Moreover, the Maryland Court of Special *339 Appeals suggested that Officer Frolich's search could survive a "reasonable suspicion" test, 7 Md. App. 56, 531 A.d 190, 197 and the Maryland Court of Appeals has not reviewed this conclusion. I therefore agree that a remand is appropriate. |
Justice Stevens | majority | false | Knebel v. Hein | 1977-01-11T00:00:00 | null | https://www.courtlistener.com/opinion/109575/knebel-v-hein/ | https://www.courtlistener.com/api/rest/v3/clusters/109575/ | 1,977 | 1976-030 | 1 | 9 | 0 | Under the program administered by the Secretary of Agriculture and cooperating state agencies pursuant to the Food Stamp Act of 1964, 78 Stat. 703, 7 U.S. C. § 2011 et seq. (1970 ed. and Supp. V), certain low-income households are entitled to purchase food coupons at a discount. The price an eligible household must pay for food stamps is determined, in part, by its "income" as defined in the applicable federal and state regulations. Under those regulations a transportation allowance, which appellee receives from the State of Iowa and uses to defray the cost of commuting to a nurses' training program, is treated as "income." The questions presented on this appeal are whether those regulations are authorized by the statute and, if so, whether they are constitutional.
Appellee Hein, a divorced woman with custody of two children, is the head of a household receiving assistance.[1] Prior to September 1972, she paid only $46 for food stamps with a retail value of $92. Thereafter she received a grant from the State which paid her tuition at a nurses' training *290 school, plus a transportation allowance of $44 per month.[2] The actual monthly expense of commuting between her residence in Muscatine, Iowa, and the school in Davenport amounted to at least $44.[3] The allowance nevertheless increased the "income" which determined the price of her food stamps,[4] resulting in a $12 price increase.
After exhausting state administrative remedies, appellee filed a class action in the United States District Court for the Southern District of Iowa seeking to enjoin the enforcement of the Iowa regulations requiring that transportation allowances be included in income. Because the constitutionality of the regulations was challenged, a three-judge court was convened pursuant to 28 U.S. C. § 2281.[5] The District *291 Court originally held the Iowa regulation invalid as inconsistent with the regulations of the Secretary of Agriculture.[6] 371 F. Supp. 1091 (1974). While the State's appeal was pending in this Court, the Secretary promulgated a clarifying amendment eliminating the basis for the District Court's holding.[7] We therefore vacated the original judgment, 419 U.S. 989.
On remand, the Secretary of Agriculture was joined as an additional defendant. The District Court then held both the state and the federal regulations invalid. 402 F. Supp. 398 (1975). The court could identify no rational basis for treating as income a training allowance which is fully expended for its intended purpose. Consequently, the court reasoned, the regulation did not implement the statutory objective of providing adequate nutrition for low-income families. Since the allowance did not increase appellee's "food purchasing power," the District Court felt that it was totally irrational for the allowance to increase the cost of appellee's food stamps. This analysis led to the conclusion that the regulation conflicted with the Food Stamp Act and discriminated against recipients of transportation allowances in violation of the equal protection guarantee explicit in the Fourteenth Amendment and implicit in the Due Process Clause of the Fifth Amendment.[8]
*292 We are persuaded that the statute authorized the Secretary and the State of Iowa to issue the challenged regulations and that the regulations are constitutional.
The salutary purpose and the broad outlines of the federal food stamp program are well known.[9] The Food Stamp Act authorizes the Secretary to "formulate and administer a food stamp program" which will provide an eligible household "an opportunity to obtain a nutritionally adequate diet," 7 U.S. C. § 2013 (a). He is to "prescribe the amounts of household income and other financial resources, including both liquid and nonliquid assets, to be used as criteria of eligibility," 7 U.S. C. § 2014 (b) (1970 ed., Supp. V). The charge for the coupons is to "represent a reasonable investment on the part of the household, but in no event more than 30 per centum of the household's income . . . ." § 2016 (b). Finally, the Secretary "shall issue such regulations, not inconsistent with this chapter, as he deems necessary or appropriate for the effective and efficient administration of the food stamp program." § 2013 (c).
*293 Under the statute's broad delegation of authority, the Secretary might have defined income in a variety of ways. He might, for example, have treated wages differently from training allowances. He decided, however, to adopt a definition of income which includes wages, welfare payments, training allowances, and most other monetary receipts.[10] Only a few specific deductions are allowed.[11] These deductions *294 do not include any itemized deduction for commuting expenses of either students or workers. Instead, there is a standardized deduction of 10% of the wages or training allowance (including tuition grants and travel allowances), which is intended to cover incidental expenses.[12]
The District Court was correct that the regulations operate somewhat unfairly in appellee's case. Nevertheless, we are satisfied that they are the product of a valid exercise of the Secretary's statutory authority. Perhaps it might have been more equitable to allow a deduction for all commuting expenses,[13] or for the expenses of commuting to a training program, oras the order of the District Court providesjust for such expenses covered by state transportation allowances. But the availability of alternatives does not render the Secretary's choice invalid.[14] Moreover, a *295 plainly acceptable reason exists for rejecting each of these possible alternatives.
Allowing a deduction for all transportation expenses would create significant administrative costs as well as risks of disparate treatment.[15] Disparate treatment of trainees and wage earners could be criticized as unfairly discriminating against the worker. Similar criticism can be leveled against the order entered by the District Court in this case, under which members of the class would fare better than workers with equally low receipts and equally high expenses.
The District Court's primary reason for invalidating the regulations was its view that transportation grants do not increase food purchasing power.[16] But the grant does give a household more food purchasing power than another household which receives no grant but incurs similar nondeductible *296 expenses related to training or employment. Moreover, nothing in the statute requires that deductions include all necessary nonfood expenditures. On the contrary, the requirement in § 2016 (b) that the price of the food stamps shall not exceed 30% of the household's income, assumes that 70% of that income may be expended on nonfood necessities.[17] Thus, there is a built-in allowance for necessary expenses beyond the specific deductions.[18]
We conclude that the federal regulations defining income were reasonably adopted by the Secretary in the performance of his statutory duty to "formulate and administer a food stamp program" and are therefore within the Secretary's statutory authority. Since there is no question about the constitutionality of the statute itself, the implementation of the *297 statutory purpose provides a sufficient justification for both the federal regulations and the parallel state regulations to avoid any violation of equal protection guarantees. See, e. g., Weinberger v. Salfi, 422 U.S. 749, 768-770; Mathews v. De Castro, ante, at 185. Nor do the regulations embody any conclusive presumption. They merely represent two reasonable judgments: first, that recipients of state travel allowances should be treated like other trainees and like wage earners; and second, that the standard 10% deduction, coupled with the 30% ceiling on coupon purchase prices, provides an acceptable mechanism for dealing with ordinary expenses such as commuting. The Constitution requires no more. See Salfi, supra, at 771-777.
Reversed.
| Under the program administered by the Secretary of Agriculture and cooperating state agencies pursuant to the Food Stamp Act of 1964, 7 U.S. C. 2011 et seq. (1970 ed. and Supp. V), certain low-income households are entitled to purchase food coupons at a discount. The price an eligible household must pay for food stamps is determined, in part, by its "income" as defined in the applicable federal and state regulations. Under those regulations a transportation allowance, which appellee receives from the State of Iowa and uses to defray the cost of commuting to a nurses' training program, is treated as "income." The questions presented on this appeal are whether those regulations are authorized by the statute and, if so, whether they are constitutional. Appellee Hein, a divorced woman with custody of two children, is the head of a household receiving assistance.[1] Prior to September 1972, she paid only $46 for food stamps with a retail value of $92. Thereafter she received a grant from the State which paid her tuition at a nurses' training *290 school, plus a transportation allowance of $44 per month.[2] The actual monthly expense of commuting between her residence in Muscatine, Iowa, and the school in Davenport amounted to at least $44.[3] The allowance nevertheless increased the "income" which determined the price of her food stamps,[4] resulting in a $12 price increase. After exhausting state administrative remedies, appellee filed a class action in the United States District Court for the Southern District of Iowa seeking to enjoin the enforcement of the Iowa regulations requiring that transportation allowances be included in income. Because the constitutionality of the regulations was challenged, a three-judge court was convened pursuant to 28 U.S. C. 2281.[5] The District *291 Court originally held the Iowa regulation invalid as inconsistent with the regulations of the Secretary of Agriculture.[6] While the State's appeal was pending in this Court, the Secretary promulgated a clarifying amendment eliminating the basis for the District Court's holding.[7] We therefore vacated the original judgment, On remand, the Secretary of Agriculture was joined as an additional defendant. The District Court then held both the state and the federal regulations invalid. The court could identify no rational basis for treating as income a training allowance which is fully expended for its intended purpose. Consequently, the court reasoned, the regulation did not implement the statutory objective of providing adequate nutrition for low-income families. Since the allowance did not increase appellee's "food purchasing power," the District Court felt that it was totally irrational for the allowance to increase the cost of appellee's food stamps. This analysis led to the conclusion that the regulation conflicted with the Food Stamp Act and discriminated against recipients of transportation allowances in violation of the equal protection guarantee explicit in the Fourteenth Amendment and implicit in the Due Process Clause of the Fifth Amendment.[8] *292 We are persuaded that the statute authorized the Secretary and the State of Iowa to issue the challenged regulations and that the regulations are constitutional. The salutary purpose and the broad outlines of the federal food stamp program are well known.[9] The Food Stamp Act authorizes the Secretary to "formulate and administer a food stamp program" which will provide an eligible household "an opportunity to obtain a nutritionally adequate diet," 7 U.S. C. 2013 (a). He is to "prescribe the amounts of household income and other financial resources, including both liquid and nonliquid assets, to be used as criteria of eligibility," 7 U.S. C. 2014 (b) (1970 ed., Supp. V). The charge for the coupons is to "represent a reasonable investment on the part of the household, but in no event more than 30 per centum of the household's income" 2016 (b). Finally, the Secretary "shall issue such regulations, not inconsistent with this chapter, as he deems necessary or appropriate for the effective and efficient administration of the food stamp program." 2013 (c). *293 Under the statute's broad delegation of authority, the Secretary might have defined income in a variety of ways. He might, for example, have treated wages differently from training allowances. He decided, however, to adopt a definition of income which includes wages, welfare payments, training allowances, and most other monetary receipts.[10] Only a few specific deductions are allowed.[11] These deductions *294 do not include any itemized deduction for commuting expenses of either students or workers. Instead, there is a standardized deduction of 10% of the wages or training allowance (including tuition grants and travel allowances), which is intended to cover incidental expenses.[12] The District Court was correct that the regulations operate somewhat unfairly in appellee's case. Nevertheless, we are satisfied that they are the product of a valid exercise of the Secretary's statutory authority. Perhaps it might have been more equitable to allow a deduction for all commuting expenses,[13] or for the expenses of commuting to a training program, oras the order of the District Court providesjust for such expenses covered by state transportation allowances. But the availability of alternatives does not render the Secretary's choice invalid.[14] Moreover, a *295 plainly acceptable reason exists for rejecting each of these possible alternatives. Allowing a deduction for all transportation expenses would create significant administrative costs as well as risks of disparate treatment.[15] Disparate treatment of trainees and wage earners could be criticized as unfairly discriminating against the worker. Similar criticism can be leveled against the order entered by the District Court in this case, under which members of the class would fare better than workers with equally low receipts and equally high expenses. The District Court's primary reason for invalidating the regulations was its view that transportation grants do not increase food purchasing power.[16] But the grant does give a household more food purchasing power than another household which receives no grant but incurs similar nondeductible *296 expenses related to training or employment. Moreover, nothing in the statute requires that deductions include all necessary nonfood expenditures. On the contrary, the requirement in 2016 (b) that the price of the food stamps shall not exceed 30% of the household's income, assumes that 70% of that income may be expended on nonfood necessities.[17] Thus, there is a built-in allowance for necessary expenses beyond the specific deductions.[18] We conclude that the federal regulations defining income were reasonably adopted by the Secretary in the performance of his statutory duty to "formulate and administer a food stamp program" and are therefore within the Secretary's statutory authority. Since there is no question about the constitutionality of the statute itself, the implementation of the *297 statutory purpose provides a sufficient justification for both the federal regulations and the parallel state regulations to avoid any violation of equal protection guarantees. See, e. g., ; Mathews v. De Castro, ante, at 185. Nor do the regulations embody any conclusive presumption. They merely represent two reasonable judgments: first, that recipients of state travel allowances should be treated like other trainees and like wage earners; and second, that the standard 10% deduction, coupled with the 30% ceiling on coupon purchase prices, provides an acceptable mechanism for dealing with ordinary expenses such as commuting. The Constitution requires no more. See Reversed. |
Justice Blackmun | majority | false | Nyquist v. Mauclet | 1977-06-13T00:00:00 | null | https://www.courtlistener.com/opinion/109687/nyquist-v-mauclet/ | https://www.courtlistener.com/api/rest/v3/clusters/109687/ | 1,977 | 1976-133 | 2 | 5 | 4 | New York, by statute, bars certain resident aliens from state financial assistance for higher education. N. Y. Educ. Law § 661 (3) (McKinney Supp. 1976). This litigation presents a constitutional challenge to that statute.
I
New York provides assistance, primarily in three forms, to students pursuing higher education. The first type is the Regents college scholarship. These are awarded to high school graduates on the basis of performance in a competitive examination. §§ 605 (1) and 670. Currently, in the usual case, a recipient is entitled to $250 annually for four years of study without regard to need. §§ 670 (2) and (3) (b).[1] The *3 second and chief form of aid is the tuition assistance award. These are noncompetitive; they are available to both graduate and undergraduate students "enrolled in approved programs and who demonstrate the ability to complete such courses." §§ 604 (1) and 667 (1). The amount of the award depends on both tuition and income. The ceiling on assistance was $600, although it has been increased for undergraduates to $1,500. §§ 667 (3) and (4). The third form of assistance is the student loan. §§ 680-684. The loan is guaranteed by the State; a borrower meeting certain income restrictions is entitled to favorable interest rates and generally to an interestfree grace period of at least nine months after he completes or terminates his course of study. §§ 680, 682 (2) and (3).[2]
There are several general restrictions on eligibility for participation in any of these programs. § 661. For example, there is a modest durational residency requirement. § 661 (5).[3] The instant dispute, however, concerns only § 661 (3). That subsection provides:
"Citizenship. An applicant (a) must be a citizen of the United States, or (b) must have made application *4 to become a citizen, or (c) if not qualified for citizenship, must submit a statement affirming intent to apply for United States citizenship as soon as he has the qualifications, and must apply as soon as eligible for citizenship, or (d) must be an individual of a class of refugees paroled by the attorney general of the United States under his parole authority pertaining to the admission of aliens to the United States."[4]
The statute obviously serves to bar from the assistance programs the participation of all aliens who do not satisfy its terms. Since many aliens, such as those here on student visas, may be precluded by federal law from establishing a permanent residence in this country, see, e. g., 8 U.S. C. § 1101 (a) (15) (F) (i); 22 CFR § 41.45 (1976), the bar of § 661 (3) is of practical significance only to resident aliens. The Court has observed of this affected group: "Resident aliens, like citizens, pay taxes, support the economy, serve in the Armed Forces, and contribute in myriad other ways to our society." In re Griffiths, 413 U.S. 717, 722 (1973).
II
Appellee Jean-Marie Mauclet is a citizen of France and has lived in New York since April 1969. He has been a permanent resident of the United States since November of that year. He is married to a United States citizen and has a child by that marriage. The child is also a United States citizen. App. 49. Mauclet by affidavit stated: "Although I am presently qualified to apply for citizenship and intend to reside *5 permanently in the United States, I do not wish to relinquish my French citizenship at this time."[5]Id., at 50. He applied for a tuition assistance award to aid in meeting the expenses of his graduate studies at the State University of New York at Buffalo. Because of his refusal to apply for United States citizenship, his application was not processed. Id., at 49-50.
Appellee Alan Rabinovitch is a citizen of Canada. He was admitted to this country in 1964 at the age of nine as a permanent resident alien. He is unmarried and, since his admission, has lived in New York with his parents and a younger sister, all of whom are Canadian citizens. He registered with Selective Service on his 18th birthday. He graduated in 1973 from the New York public school system. Id., at 68, 71. As a result of a commendable performance on the competitive Regents Qualifying Examinations, Rabinovitch was informed that he was qualified for, and entitled to, a Regents college scholarship and tuition assistance. He later was advised, however, that the offer of the scholarship was withdrawn since he intended to retain his Canadian citizenship. Id., at 69, 25. Rabinovitch entered Brooklyn College without financial aid from the State. He states that he "does not intend to become a naturalized American, but . . . does intend to continue to reside in New York." Id., at 65.
Mauclet and Rabinovitch each brought suit in United States District Court (Mauclet in the Western District of New York and Rabinovitch in the Eastern District), alleging that the citizenship bar of § 661 (3) was unconstitutional. The same three-judge court was convened for each of the cases. Subsequently, it was ordered that the cases be heard together. App. 45. After cross motions for summary judgment, the District Court in a unanimous opinion ruled in appellees' favor. It held that § 661 (3) violated the Equal Protection Clause of the Fourteenth Amendment in that the citizenship *6 requirement served to discriminate unconstitutionally against resident aliens.[6] 406 F. Supp. 1233 (WDNY and EDNY 1976). Its enforcement was enjoined in separate judgments. App. 103, 106.
Appellantsthe various individuals and corporate entities responsible for administering the State's educational assistance programschallenge this determination.[7] We noted probable jurisdiction. 429 U.S. 917 (1976).
*7 III
The Court has ruled that classifications by a State that are based on alienage are "inherently suspect and subject to close judicial scrutiny." Graham v. Richardson, 403 U.S. 365, 372 (1971). See Examining Board v. Flores de Otero, 426 U.S. 572, 601-602 (1976); In re Griffiths, 413 U. S., at 721; Sugarman v. Dougall, 413 U.S. 634, 642 (1973). In undertaking this scrutiny, "the governmental interest claimed to justify the discrimination is to be carefully examined in order to determine whether that interest is legitimate and substantial, and inquiry must be made whether the means adopted to achieve the goal are necessary and precisely drawn." Examining Board v. Flores de Otero, 426 U. S., at 605. See In re Griffiths, 413 U. S., at 721-722. Alienage classifications by a State that do not withstand this stringent examination cannot stand.[8]
Appellants claim that § 661 (3) should not be subjected to such strict scrutiny because it does not impose a classification *8 based on alienage.[9] Aliens who have applied for citizenship, or, if not qualified for it, who have filed a statement of intent to apply as soon as they are eligible, are allowed to participate in the assistance programs. Hence, it is said, the statute distinguishes "only within the `heterogeneous' class of aliens" and "does not distinguish between citizens and aliens vel non." Brief for Appellants 20.[10] Only statutory classifications of the latter type, appellants assert, warrant strict scrutiny.
Graham v. Richardson, supra, undermines appellants' position. In that case, the Court considered an Arizona statute that imposed a durational residency requirement for welfare benefits on aliens but not on citizens. Like the New York statute challenged here, the Arizona statute served to discriminate only within the class of aliens: Aliens who met the durational residency requirement were entitled to welfare *9 benefits. The Court nonetheless subjected the statute to strict scrutiny and held it unconstitutional. The important points are that § 661 (3) is directed at aliens and that only aliens are harmed by it. The fact that the statute is not an absolute bar does not mean that it does not discriminate against the class.[11] Cf. Mathews v. Lucas, 427 U.S. 495, 504-505, n. 11 (1976);[12]Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 169, 172 (1972).
Appellants also assert that there are adequate justifications for § 661 (3). First, the section is said to offer an incentive for aliens to become naturalized. Second, the restriction on *10 assistance to only those who are or will become eligible to vote is tailored to the purpose of the assistance program, namely, the enhancement of the educational level of the electorate. Brief for Appellants 22-25. Both justifications are claimed to be related to New York's interest in the preservation of its "political community." See Sugarman v. Dougall, 413 U. S., at 642-643, 647-649; Dunn v. Blumstein, 405 U.S. 330, 344 (1972).
The first purpose offered by the appellants, directed to what they describe as some "degree of national affinity," Brief for Appellants 18, however, is not a permissible one for a State. Control over immigration and naturalization is entrusted exclusively to the Federal Government, and a State has no power to interfere. U. S. Const., Art I, § 8, cl. 4. See Mathews v. Diaz, 426 U.S. 67, 84-85 (1976); Graham v. Richardson, 403 U. S., at 376-380; Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 419 (1948). But even if we accept, arguendo, the validity of the proffered justifications, we find them inadequate to support the ban.[13]
*11 In Sugarman v. Dougall, 413 U. S., at 642, the Court recognized that the State's interest "in establishing its own form of government, and in limiting participation in that government to those who are within `the basic conception of a political community'" might justify some consideration of alienage. But as Sugarman makes quite clear, the Court had in mind a State's historical and constitutional powers to define the qualifications of voters,[14] or of "elective or important nonelective" officials "who participate directly in the formulation, execution, or review of broad public policy." Id., at 647. See id., at 648. In re Griffiths, decided the same day, reflects the narrowness of the exception. In that case, despite a recognition of the vital public and political role of attorneys, the Court found invalid a state-court rule limiting the practice of law to citizens. 413 U.S., at 729.
Certainly, the justifications for § 661 (3) offered by appellants sweep far beyond the confines of the exception defined in Sugarman. If the encouragement of naturalization through these programs were seen as adequate, then every discrimination against aliens could be similarly justified. The exception would swallow the rule. Sugarman clearly does not tolerate that result. Nor does the claimed interest in educating the electorate provide a justification; although such education is a laudable objective, it hardly would be frustrated by including resident aliens, as well as citizens, in the State's assistance programs.[15]
*12 Resident aliens are obligated to pay their full share of the taxes that support the assistance programs. There thus is no real unfairness in allowing resident aliens an equal right to participate in programs to which they contribute on an equal basis. And although an alien may be barred from full involvement in the political arena, he may play a roleperhaps even a leadership rolein other areas of import to the community. The State surely is not harmed by providing resident aliens the same educational opportunity it offers to others.
Since we hold that the challenged statute violates the Fourteenth Amendment's equal protection guarantee, we need not reach appellees' claim that it also intrudes upon Congress' comprehensive authority over immigration and naturalization. See Graham v. Richardson, 403 U. S., at 378; Truax v. Raich, 239 U.S. 33, 42 (1915).
The judgments of the District Court are affirmed.
It is so ordered.
MR. | New York, by statute, bars certain resident aliens from state financial assistance for higher education. N. Y. Educ. Law 661 (3) This litigation presents a constitutional challenge to that statute. I New York provides assistance, primarily in three forms, to students pursuing higher education. The first type is the Regents college scholarship. These are awarded to high school graduates on the basis of performance in a competitive examination. 605 (1) and 670. Currently, in the usual case, a recipient is entitled to $250 annually for four years of study without regard to need. 670 (2) and (3) (b).[1] The *3 second and chief form of aid is the tuition assistance award. These are noncompetitive; they are available to both graduate and undergraduate students "enrolled in approved programs and who demonstrate the ability to complete such courses." 604 (1) and 667 (1). The amount of the award depends on both tuition and income. The ceiling on assistance was $600, although it has been increased for undergraduates to $1,500. 667 (3) and (4). The third form of assistance is the student loan. 680-684. The loan is guaranteed by the State; a borrower meeting certain income restrictions is entitled to favorable interest rates and generally to an interestfree grace period of at least nine months after he completes or terminates his course of study. 680, 682 (2) and (3).[2] There are several general restrictions on eligibility for participation in any of these programs. 661. For example, there is a modest durational residency requirement. 661 (5).[3] The instant dispute, however, concerns only 661 (3). That subsection provides: "Citizenship. An applicant (a) must be a citizen of the United States, or (b) must have made application *4 to become a citizen, or (c) if not qualified for citizenship, must submit a statement affirming intent to apply for United States citizenship as soon as he has the qualifications, and must apply as soon as eligible for citizenship, or (d) must be an individual of a class of refugees paroled by the attorney general of the United States under his parole authority pertaining to the admission of aliens to the United States."[4] The statute obviously serves to bar from the assistance programs the participation of all aliens who do not satisfy its terms. Since many aliens, such as those here on student visas, may be precluded by federal law from establishing a permanent residence in this country, see, e. g., 8 U.S. C. 1101 (a) (15) (F) (i); 22 CFR 41.45 the bar of 661 (3) is of practical significance only to resident aliens. The Court has observed of this affected group: "Resident aliens, like citizens, pay taxes, support the economy, serve in the Armed Forces, and contribute in myriad other ways to our society." In re II Appellee Jean-Marie Mauclet is a citizen of France and has lived in New York since April 1969. He has been a permanent resident of the United States since November of that year. He is married to a United States citizen and has a child by that marriage. The child is also a United States citizen. App. 49. Mauclet by affidavit stated: "Although I am presently qualified to apply for citizenship and intend to reside *5 permanently in the United States, I do not wish to relinquish my French citizenship at this time."[5] at 50. He applied for a tuition assistance award to aid in meeting the expenses of his graduate studies at the State University of New York at Buffalo. Because of his refusal to apply for United States citizenship, his application was not processed. Appellee Alan Rabinovitch is a citizen of Canada. He was admitted to this country in 1964 at the age of nine as a permanent resident alien. He is unmarried and, since his admission, has lived in New York with his parents and a younger sister, all of whom are Canadian He registered with Selective Service on his 18th birthday. He graduated in 1973 from the New York public school system. As a result of a commendable performance on the competitive Regents Qualifying Examinations, Rabinovitch was informed that he was qualified for, and entitled to, a Regents college scholarship and tuition assistance. He later was advised, however, that the offer of the scholarship was withdrawn since he intended to retain his Canadian citizenship. Rabinovitch entered Brooklyn College without financial aid from the State. He states that he "does not intend to become a naturalized American, but does intend to continue to reside in New York." Mauclet and Rabinovitch each brought suit in United States District Court (Mauclet in the Western District of New York and Rabinovitch in the Eastern District), alleging that the citizenship bar of 661 (3) was unconstitutional. The same three-judge court was convened for each of the cases. Subsequently, it was ordered that the cases be heard together. App. 45. After cross motions for summary judgment, the District Court in a unanimous opinion ruled in appellees' favor. It held that 661 (3) violated the Equal Protection Clause of the Fourteenth Amendment in that the citizenship *6 requirement served to discriminate unconstitutionally against resident aliens.[6] Its enforcement was enjoined in separate judgments. App. 103, 106. Appellantsthe various individuals and corporate entities responsible for administering the State's educational assistance programschallenge this determination.[7] We noted probable jurisdiction. *7 III The Court has ruled that classifications by a State that are based on alienage are "inherently suspect and subject to close judicial scrutiny." See Examining ; In re ; In undertaking this scrutiny, "the governmental interest claimed to justify the discrimination is to be carefully examined in order to determine whether that interest is legitimate and substantial, and inquiry must be made whether the means adopted to achieve the goal are necessary and precisely drawn." Examining See In re -. Alienage classifications by a State that do not withstand this stringent examination cannot stand.[8] Appellants claim that 661 (3) should not be subjected to such strict scrutiny because it does not impose a classification *8 based on alienage.[9] Aliens who have applied for citizenship, or, if not qualified for it, who have filed a statement of intent to apply as soon as they are eligible, are allowed to participate in the assistance programs. Hence, it is said, the statute distinguishes "only within the `heterogeneous' class of aliens" and "does not distinguish between citizens and aliens vel non." Brief for Appellants 20.[10] Only statutory classifications of the latter type, appellants assert, warrant strict scrutiny. undermines appellants' position. In that case, the Court considered an Arizona statute that imposed a durational residency requirement for welfare benefits on aliens but not on Like the New York statute challenged here, the Arizona statute served to discriminate only within the class of aliens: Aliens who met the durational residency requirement were entitled to welfare *9 benefits. The Court nonetheless subjected the statute to strict scrutiny and held it unconstitutional. The important points are that 661 (3) is directed at aliens and that only aliens are harmed by it. The fact that the statute is not an absolute bar does not mean that it does not discriminate against the class.[11] Cf. ;[12]Weber v. Aetna Casualty & Surety Co., Appellants also assert that there are adequate justifications for 661 (3). First, the section is said to offer an incentive for aliens to become naturalized. Second, the restriction on *10 assistance to only those who are or will become eligible to vote is tailored to the purpose of the assistance program, namely, the enhancement of the educational level of the electorate. Brief for Appellants 22-25. Both justifications are claimed to be related to New York's interest in the preservation of its "political community." See 413 U. S., at -643, 647-649; The first purpose offered by the appellants, directed to what they describe as some "degree of national affinity," Brief for Appellants 18, however, is not a permissible one for a State. Control over immigration and naturalization is entrusted exclusively to the Federal Government, and a State has no power to interfere. U. S. Const., Art I, 8, cl. 4. See ; -380; But even if we accept, arguendo, the validity of the proffered justifications, we find them inadequate to support the ban.[13] *11 In 413 U. S., at the Court recognized that the State's interest "in establishing its own form of government, and in limiting participation in that government to those who are within `the basic conception of a political community'" might justify some consideration of alienage. But as Sugarman makes quite clear, the Court had in mind a State's historical and constitutional powers to define the qualifications of voters,[14] or of "elective or important nonelective" officials "who participate directly in the formulation, execution, or review of broad public policy." See In re decided the same day, reflects the narrowness of the exception. In that case, despite a recognition of the vital public and political role of attorneys, the Court found invalid a state-court rule limiting the practice of law to Certainly, the justifications for 661 (3) offered by appellants sweep far beyond the confines of the exception defined in Sugarman. If the encouragement of naturalization through these programs were seen as adequate, then every discrimination against aliens could be similarly justified. The exception would swallow the rule. Sugarman clearly does not tolerate that result. Nor does the claimed interest in educating the electorate provide a justification; although such education is a laudable objective, it hardly would be frustrated by including resident aliens, as well as citizens, in the State's assistance programs.[15] *12 Resident aliens are obligated to pay their full share of the taxes that support the assistance programs. There thus is no real unfairness in allowing resident aliens an equal right to participate in programs to which they contribute on an equal basis. And although an alien may be barred from full involvement in the political arena, he may play a roleperhaps even a leadership rolein other areas of import to the community. The State surely is not harmed by providing resident aliens the same educational opportunity it offers to others. Since we hold that the challenged statute violates the Fourteenth Amendment's equal protection guarantee, we need not reach appellees' claim that it also intrudes upon Congress' comprehensive authority over immigration and naturalization. See ; The judgments of the District Court are affirmed. It is so ordered. MR. |
Justice Powell | concurring | false | Almeida-Sanchez v. United States | 1973-06-21T00:00:00 | null | https://www.courtlistener.com/opinion/108845/almeida-sanchez-v-united-states/ | https://www.courtlistener.com/api/rest/v3/clusters/108845/ | 1,973 | 1972-165 | 2 | 5 | 4 | While I join the opinion of the Court, which sufficiently establishes that none of our Fourth Amendment decisions supports the search conducted in this case, I add this concurring opinion to elaborate on my views as to the meaning of the Fourth Amendment in this context. We are confronted here with the all-too-familiar necessity of reconciling a legitimate need of government with constitutionally protected rights. There can be no question as to the seriousness and legitimacy of the law enforcement problem with respect to enforcing along thousands of miles of open border valid immigration and related laws. Nor can there be any question as to the necessity, in our free society, of safeguarding persons against searches and seizures proscribed by the Fourth Amendment. I believe that a resolution of the issue raised by this case is possible with due recognition of both of these interests, and in a manner compatible with the prior decisions of this Court.[1]
I
The search here involved was carried out as part of a roving search of automobiles in an area generally proximate to the Mexican border. It was not a border search, *276 nor can it fairly be said to have been a search conducted at the "functional equivalent" of the border. Nor does this case involve the constitutional propriety of searches at permanent or temporary checkpoints removed from the border or its functional equivalent. Nor, finally, was the search based on cause in the ordinary sense of specific knowledge concerning an automobile or its passengers.[2] The question posed, rather, is whether and under what circumstances the Border Patrol may lawfully conduct roving searches of automobiles in areas not far removed from the border for the purpose of apprehending aliens illegally entering or in the country.
The Government has made a convincing showing that large numbers of aliens cross our borders illegally at places other than established crossing points, that they are often assisted by smugglers, that even those who cross on foot are met and transported to their destinations by automobiles, and that roving checks of automobiles are the only feasible means of apprehending them. It would, of course, be wholly impracticable to maintain a constant patrol along thousands of miles of border. Moreover, because many of these aliens cross the border on foot, or at places other than established checkpoints, it is simply not possible in most cases for the Government to obtain specific knowledge that a person riding or stowed in an automobile is an alien illegally in the country. *277 Thus the magnitude of the problem is clear. An answer, reconciling the obvious needs of law enforcement with relevant constitutional rights, is far less clear.
II
The Government's argument to sustain the search here is simply that it was reasonable under the circumstances. But it is by now axiomatic that the Fourth Amendment's proscription of "unreasonable searches and seizures" is to be read in conjunction with its command that "no Warrants shall issue, but upon probable cause." Under our cases, both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search, though in certain limited circumstances neither is required.
Before deciding whether a warrant is required, I will first address the threshold question of whether some functional equivalent of probable cause may exist for the type of search conducted in this case. The problem of ascertaining the meaning of the probable-cause requirement in the context of roving searches of the sort conducted here is measurably assisted by the Court's opinion in Camara v. Municipal Court, 387 U.S. 523 (1967), on which the Government relies heavily. The Court was there concerned with the nature of the probable-cause requirement in the context of searches to identify housing code violations and was persuaded that the only workable method of enforcement was periodic inspection of all structures:
"It is here that the probable cause debate is focused, for the agency's decision to conduct an area inspection is unavoidably based on its appraisal of conditions in the area as a whole, not on its knowledge of conditions in each particular building." Id., at 536.
*278 In concluding that such general knowledge met the probable-cause requirement under those circumstances, the Court took note of a "long history of judicial and public acceptance," of the absence of other methods for vindicating the public interest in preventing or abating dangerous conditions, and of the limited invasion of privacy occasioned by administrative inspections which are "neither personal in nature nor aimed at the discovery of evidence of crime." Id., at 537.
Roving automobile searches in border regions for aliens, likewise, have been consistently approved by the judiciary. While the question is one of first impression in this Court, such searches uniformly have been sustained by the courts of appeals whose jurisdictions include those areas of the border between Mexico and the United States where the problem has been most severe. See, e. g., United States v. Miranda, 426 F.2d 283 (CA9 1970); Roa-Rodriquez v. United States, 410 F.2d 1206 (CA10 1969). Moreover, as noted above, no alternative solution is reasonably possible.
The Government further argues that such searches resemble those conducted in Camara in that they are undertaken primarily for administrative rather than prosecutorial purposes, that their function is simply to locate those who are illegally here and to deport them. Brief for the United States 28 n. 25. This argument is supported by the assertion that only 3% of aliens apprehended in this country are prosecuted. While the low rate of prosecution offers no great solace to the innocent whose automobiles are searched or to the few who are prosecuted, it does serve to differentiate this class of searches from random area searches which are no more than "fishing expeditions" for evidence to support prosecutions. The possibility of prosecution does not distinguish such searches from those involved in Camara. Despite the Court's assertion in that case that the searches *279 were not "aimed at the discovery of evidence of crime," 387 U.S., at 537, violators of the housing code there were subject to criminal penalties. Id., at 527 n. 2.
Of perhaps greater weight is the fact that these searches, according to the Government, are conducted in areas where the concentration of illegally present aliens is high, both in absolute terms and in proportion to the number of persons legally present. While these searches are not border searches in the conventional sense, they are incidental to the protection of the border and draw a large measure of justification from the Government's extraordinary responsibilities and powers with respect to the border. Finally, and significantly, these are searches of automobiles rather than searches of persons or buildings. The search of an automobile is far less intrusive on the rights protected by the Fourth Amendment than the search of one's person or of a building. This Court "has long distinguished between an automobile and a home or office." Chambers v. Maroney, 399 U.S. 42, 48 (1970). As the Government has demonstrated, and as those in the affected areas surely know, it is the automobile which in most cases makes effective the attempts to smuggle aliens into this country.
The conjunction of these factorsconsistent judicial approval, absence of a reasonable alternative for the solution of a serious problem, and only a modest intrusion on those whose automobiles are searchedpersuades me that under appropriate limiting circumstances there may exist a constitutionally adequate equivalent of probable cause to conduct roving vehicular searches in border areas.
III
The conclusion that there may be probable cause to conduct roving searches does not end the inquiry, for "except in certain carefully defined classes of cases, a search of private property without proper consent is *280 `unreasonable' unless it has been authorized by a valid search warrant." Camara v. Municipal Court, supra, at 528-529. I expressed the view last Term that the warrant clause reflects an important policy determination: "The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility is to enforce the laws, to investigate, and to prosecute. . . . But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks." United States v. United States District Court, 407 U.S. 297, 317 (1972). See also Coolidge v. New Hampshire, 403 U.S. 443, 481 (1971); Chimel v. California, 395 U.S. 752, 763-764 (1969).
To justify warrantless searches in circumstances like those presented in this case, the Government relies upon several of this Court's decisions recognizing exceptions to the warrant requirement. A brief review of the nature of each of these major exceptions illuminates the relevant considerations in the present case. In Terry v. Ohio, 392 U.S. 1 (1968), the Court held that a policeman may conduct a limited "pat down" search for weapons when he has reasonable grounds for believing that criminal conduct has taken or is taking place and that the person he searches is armed and dangerous. "The sole justification [for such a] search . . . is the protection of the police officer and others nearby . . . ." Id., at 29. Nothing in Terry supports an exception to the warrant requirement here.
Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970), and United States v. Biswell, 406 U.S. 311 (1972), on which the Government also relies, both concerned the standards which govern inspections of the business premises of those with federal licenses to engage in the sale of liquor, Colonnade, or the sale of guns, *281 Biswell. In those cases, Congress was held to have power to authorize warrantless searches. As the Court stated in Biswell:
"When a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection." 406 U.S., at 316.
Colonnade and Biswell cannot fairly be read to cover cases of the present type. One who merely travels in regions near the borders of the country can hardly be thought to have submitted to inspections in exchange for a special perquisite.
More closely in point on their facts are the cases involving automobile searches. E. g., Carroll v. United States, 267 U.S. 132 (1925); Chambers v. Maroney, supra; Coolidge v. New Hampshire, supra. But while those cases allow automobiles to be searched without a warrant in certain circumstances, the principal rationale for this exception to the warrant clause is that under those circumstances "it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." Carroll v. United States, supra, at 153. The Court today correctly points out that a warrantless search under the Carroll line of cases must be supported by probable cause in the sense of specific knowledge about a particular automobile. While, as indicated above, my view is that on appropriate facts the Government can satisfy the probable cause requirement for a roving search in a border area without possessing information about particular automobiles, it does not follow that the warrant requirement is inapposite. The very fact that the Government's supporting information relates to criminal activity in certain areas rather than *282 to evidence about a particular automobile renders irrelevant the justification for warrantless searches relied upon in Carroll and its progeny. Quite simply, the roving searches are justified by experience with obviously nonmobile sections of a particular road or area embracing several roads.
None of the foregoing exceptions to the warrant requirement, then, applies to roving automobile searches in border areas. Moreover, the propriety of the warrant procedure here is affirmatively established by Camara. See also See v. City of Seattle, 387 U.S. 541 (1967). For the reasons outlined above, the Court there ruled that probable cause could be shown for an area search, but nonetheless required that a warrant be obtained for unconsented searches. The Court indicated its general approach to exceptions to the warrant requirement:
"In assessing whether the public interest demands creation of a general exception to the Fourth Amendment's warrant requirement, the question is not whether the public interest justifies the type of search in question, but whether the authority to search should be evidenced by a warrant, which in turn depends in part upon whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search." Camara v. Municipal Court, supra, at 533.
See also United States v. United States District Court, supra, at 315.
The Government argues that Camara and See are distinguishable from the present case for the purposes of the warrant requirement. It is true that while a building inspector who is refused admission to a building may easily obtain a warrant to search that building, a member of the Border Patrol has no such opportunity when *283 he is refused permission to inspect an automobile. It is also true that the judicial function envisioned in Camara did not extend to reconsideration of "the basic agency decision to canvass an area," Camara v. Municipal Court, supra, at 532, while the judicial function here would necessarily include passing on just such a basic decision.
But it does not follow from these distinctions that "no warrant system can be constructed that would be feasible and meaningful." Brief for the United States 36. Nothing in the papers before us demonstrates that it would not be feasible for the Border Patrol to obtain advance judicial approval of the decision to conduct roving searches on a particular road or roads for a reasonable period of time.[3] According to the Government, the incidence of illegal transportation of aliens on certain roads is predictable, and the roving searches are apparently planned in advance or carried out according to a predetermined schedule. The use of an area warrant procedure would surely not "frustrate the governmental purpose behind the search." Camara v. Municipal Court, supra, at 533. It would of course entail some inconvenience, but inconvenience alone has never been thought to be an adequate reason for abrogating the warrant requirement. E. g., United States v. United States District Court, supra, at 321.
Although standards for probable cause in the context of this case are relatively unstructured (cf. id., at 322), there are a number of relevant factors which would merit consideration: they include (i) the frequency with which aliens illegally in the country are known or reasonably believed to be transported within a particular area; *284 (ii) the proximity of the area in question to the border; (iii) the extensiveness and geographic characteristics of the area, including the roads therein and the extent of their use,[4] and (iv) the probable degree of interference with the rights of innocent persons, taking into account the scope of the proposed search, its duration, and the concentration of illegal alien traffic in relation to the general traffic of the road or area.
In short, the determination of whether a warrant should be issued for an area search involves a balancing of the legitimate interests of law enforcement with protected Fourth Amendment rights. This presents the type of delicate question of constitutional judgment which ought to be resolved by the Judiciary rather than the Executive. In the words of Camara,
"This is precisely the discretion to invade private property which we have consistently circumscribed by a requirement that a disinterested party warrant the need to search." 387 U.S., at 532-533.
Nor does the novelty of the problem posed by roving searches in border areas undermine the importance of a prior judicial determination. When faced with a similarly unconventional problem last Term in United States District Court, supra, we recognized that the focus of the search there involved was "less precise than that directed against more conventional types of crime," and that "[d]ifferent standards may be compatible with the Fourth Amendment if they are reasonable both in relation *285 to the legitimate need of Government . . . and the protected rights of our citizens." 407 U.S., at 322-323. Yet we refused to abandon the Fourth Amendment commitment to the use of search warrants whenever this is feasible with due regard to the interests affected.
For the reasons stated above, I think a rational search warrant procedure is feasible in cases of this kind. As no warrant was obtained here, I agree that the judgment must be reversed. I express no opinion as to whether there was probable cause to issue a warrant on the facts of this particular case.
MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. | While I join the opinion of the which sufficiently establishes that none of our Fourth Amendment decisions supports the search conducted in this case, I add this concurring opinion to elaborate on my views as to the meaning of the Fourth Amendment in this context. We are confronted here with the all-too-familiar necessity of reconciling a legitimate need of government with constitutionally protected rights. There can be no question as to the seriousness and legitimacy of the law enforcement problem with respect to enforcing along thousands of miles of open border valid immigration and related laws. Nor can there be any question as to the necessity, in our free society, of safeguarding persons against searches and seizures proscribed by the Fourth Amendment. I believe that a resolution of the issue raised by this case is possible with due recognition of both of these interests, and in a manner compatible with the prior decisions of this[1] I The search here involved was carried out as part of a roving search of automobiles in an area generally proximate to the Mexican border. It was not a border search, *276 nor can it fairly be said to have been a search conducted at the "functional equivalent" of the border. Nor does this case involve the constitutional propriety of searches at permanent or temporary checkpoints removed from the border or its functional equivalent. Nor, finally, was the search based on cause in the ordinary sense of specific knowledge concerning an automobile or its passengers.[2] The question posed, rather, is whether and under what circumstances the Border Patrol may lawfully conduct roving searches of automobiles in areas not far removed from the border for the purpose of apprehending aliens illegally entering or in the country. The Government has made a convincing showing that large numbers of aliens cross our borders illegally at places other than established crossing points, that they are often assisted by smugglers, that even those who cross on foot are met and transported to their destinations by automobiles, and that roving checks of automobiles are the only feasible means of apprehending them. It would, of course, be wholly impracticable to maintain a constant patrol along thousands of miles of border. Moreover, because many of these aliens cross the border on foot, or at places other than established checkpoints, it is simply not possible in most cases for the Government to obtain specific knowledge that a person riding or stowed in an automobile is an alien illegally in the country. *277 Thus the magnitude of the problem is clear. An answer, reconciling the obvious needs of law enforcement with relevant constitutional rights, is far less clear. II The Government's argument to sustain the search here is simply that it was reasonable under the circumstances. But it is by now axiomatic that the Fourth Amendment's proscription of "unreasonable searches and seizures" is to be read in conjunction with its command that "no Warrants shall issue, but upon probable cause." Under our cases, both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search, though in certain limited circumstances neither is required. Before deciding whether a warrant is required, I will first address the threshold question of whether some functional equivalent of probable cause may exist for the type of search conducted in this case. The problem of ascertaining the meaning of the probable-cause requirement in the context of roving searches of the sort conducted here is measurably assisted by the 's opinion in on which the Government relies heavily. The was there concerned with the nature of the probable-cause requirement in the context of searches to identify housing code violations and was persuaded that the only workable method of enforcement was periodic inspection of all structures: "It is here that the probable cause debate is focused, for the agency's decision to conduct an area inspection is unavoidably based on its appraisal of conditions in the area as a whole, not on its knowledge of conditions in each particular building." *278 In concluding that such general knowledge met the probable-cause requirement under those circumstances, the took note of a "long history of judicial and public acceptance," of the absence of other methods for vindicating the public interest in preventing or abating dangerous conditions, and of the limited invasion of privacy occasioned by administrative inspections which are "neither personal in nature nor aimed at the discovery of evidence of crime." Roving automobile searches in border regions for aliens, likewise, have been consistently approved by the judiciary. While the question is one of first impression in this such searches uniformly have been sustained by the courts of appeals whose jurisdictions include those areas of the border between Mexico and the United where the problem has been most severe. See, e. g., United ; Moreover, as noted above, no alternative solution is reasonably possible. The Government further argues that such searches resemble those conducted in Camara in that they are undertaken primarily for administrative rather than prosecutorial purposes, that their function is simply to locate those who are illegally here and to deport them. Brief for the United 28 n. 25. This argument is supported by the assertion that only 3% of aliens apprehended in this country are prosecuted. While the low rate of prosecution offers no great solace to the innocent whose automobiles are searched or to the few who are prosecuted, it does serve to differentiate this class of searches from random area searches which are no more than "fishing expeditions" for evidence to support prosecutions. The possibility of prosecution does not distinguish such searches from those involved in Camara. Despite the 's assertion in that case that the searches *279 were not "aimed at the discovery of evidence of crime," 387 U.S., violators of the housing code there were subject to criminal penalties. at 527 n. 2. Of perhaps greater weight is the fact that these searches, according to the Government, are conducted in areas where the concentration of illegally present aliens is high, both in absolute terms and in proportion to the number of persons legally present. While these searches are not border searches in the conventional sense, they are incidental to the protection of the border and draw a large measure of justification from the Government's extraordinary responsibilities and powers with respect to the border. Finally, and significantly, these are searches of automobiles rather than searches of persons or buildings. The search of an automobile is far less intrusive on the rights protected by the Fourth Amendment than the search of one's person or of a building. This "has long distinguished between an automobile and a home or office." As the Government has demonstrated, and as those in the affected areas surely know, it is the automobile which in most cases makes effective the attempts to smuggle aliens into this country. The conjunction of these factorsconsistent judicial approval, absence of a reasonable alternative for the solution of a serious problem, and only a modest intrusion on those whose automobiles are searchedpersuades me that under appropriate limiting circumstances there may exist a constitutionally adequate equivalent of probable cause to conduct roving vehicular searches in border areas. III The conclusion that there may be probable cause to conduct roving searches does not end the inquiry, for "except in certain carefully defined classes of cases, a search of private property without proper consent is *280 `unreasonable' unless it has been authorized by a valid search warrant." I expressed the view last Term that the warrant clause reflects an important policy determination: "The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility is to enforce the laws, to investigate, and to prosecute. But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks." United v. United District See also 1 ; To justify warrantless searches in circumstances like those presented in this case, the Government relies upon several of this 's decisions recognizing exceptions to the warrant requirement. A brief review of the nature of each of these major exceptions illuminates the relevant considerations in the present case. In the held that a policeman may conduct a limited "pat down" search for weapons when he has reasonable grounds for believing that criminal conduct has taken or is taking place and that the person he searches is armed and dangerous. "The sole justification [for such a] search is the protection of the police officer and others nearby" Nothing in Terry supports an exception to the warrant requirement here. Colonnade Catering and United on which the Government also relies, both concerned the standards which govern inspections of the business premises of those with federal licenses to engage in the sale of liquor, Colonnade, or the sale of guns, *281 Biswell. In those cases, Congress was held to have power to authorize warrantless searches. As the stated in Biswell: "When a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection." Colonnade and Biswell cannot fairly be read to cover cases of the present type. One who merely travels in regions near the borders of the country can hardly be thought to have submitted to inspections in exchange for a special perquisite. More closely in point on their facts are the cases involving automobile searches. E. g., ; But while those cases allow automobiles to be searched without a warrant in certain circumstances, the principal rationale for this exception to the warrant clause is that under those circumstances "it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." The today correctly points out that a warrantless search under the Carroll line of cases must be supported by probable cause in the sense of specific knowledge about a particular automobile. While, as indicated above, my view is that on appropriate facts the Government can satisfy the probable cause requirement for a roving search in a border area without possessing information about particular automobiles, it does not follow that the warrant requirement is inapposite. The very fact that the Government's supporting information relates to criminal activity in certain areas rather than *282 to evidence about a particular automobile renders irrelevant the justification for warrantless searches relied upon in Carroll and its progeny. Quite simply, the roving searches are justified by experience with obviously nonmobile sections of a particular road or area embracing several roads. None of the foregoing exceptions to the warrant requirement, then, applies to roving automobile searches in border areas. Moreover, the propriety of the warrant procedure here is affirmatively established by Camara. See also See v. City of Seattle, For the reasons outlined above, the there ruled that probable cause could be shown for an area search, but nonetheless required that a warrant be obtained for unconsented searches. The indicated its general approach to exceptions to the warrant requirement: "In assessing whether the public interest demands creation of a general exception to the Fourth Amendment's warrant requirement, the question is not whether the public interest justifies the type of search in question, but whether the authority to search should be evidenced by a warrant, which in turn depends in part upon whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search." See also United v. United District The Government argues that Camara and See are distinguishable from the present case for the purposes of the warrant requirement. It is true that while a building inspector who is refused admission to a building may easily obtain a warrant to search that building, a member of the Border Patrol has no such opportunity when *283 he is refused permission to inspect an automobile. It is also true that the judicial function envisioned in Camara did not extend to reconsideration of "the basic agency decision to canvass an area," while the judicial function here would necessarily include passing on just such a basic decision. But it does not follow from these distinctions that "no warrant system can be constructed that would be feasible and meaningful." Brief for the United 36. Nothing in the papers before us demonstrates that it would not be feasible for the Border Patrol to obtain advance judicial approval of the decision to conduct roving searches on a particular road or roads for a reasonable period of time.[3] According to the Government, the incidence of illegal transportation of aliens on certain roads is predictable, and the roving searches are apparently planned in advance or carried out according to a predetermined schedule. The use of an area warrant procedure would surely not "frustrate the governmental purpose behind the search." It would of course entail some inconvenience, but inconvenience alone has never been thought to be an adequate reason for abrogating the warrant requirement. E. g., United v. United District Although standards for probable cause in the context of this case are relatively unstructured (cf. ), there are a number of relevant factors which would merit consideration: they include (i) the frequency with which aliens illegally in the country are known or reasonably believed to be transported within a particular area; *284 (ii) the proximity of the area in question to the border; (iii) the extensiveness and geographic characteristics of the area, including the roads therein and the extent of their use,[4] and (iv) the probable degree of interference with the rights of innocent persons, taking into account the scope of the proposed search, its duration, and the concentration of illegal alien traffic in relation to the general traffic of the road or area. In short, the determination of whether a warrant should be issued for an area search involves a balancing of the legitimate interests of law enforcement with protected Fourth Amendment rights. This presents the type of delicate question of constitutional judgment which ought to be resolved by the Judiciary rather than the Executive. In the words of Camara, "This is precisely the discretion to invade private property which we have consistently circumscribed by a requirement that a disinterested party warrant the need to search." 387 U.S., -533. Nor does the novelty of the problem posed by roving searches in border areas undermine the importance of a prior judicial determination. When faced with a similarly unconventional problem last Term in United District we recognized that the focus of the search there involved was "less precise than that directed against more conventional types of crime," and that "[d]ifferent standards may be compatible with the Fourth Amendment if they are reasonable both in relation *285 to the legitimate need of Government and the protected rights of our citizens." 407 U.S., -323. Yet we refused to abandon the Fourth Amendment commitment to the use of search warrants whenever this is feasible with due regard to the interests affected. For the reasons stated above, I think a rational search warrant procedure is feasible in cases of this kind. As no warrant was obtained here, I agree that the judgment must be reversed. I express no opinion as to whether there was probable cause to issue a warrant on the facts of this particular case. MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. |
per_curiam | per_curiam | true | Hanlon v. Berger | 1999-05-24T00:00:00 | null | https://www.courtlistener.com/opinion/1087699/hanlon-v-berger/ | https://www.courtlistener.com/api/rest/v3/clusters/1087699/ | 1,999 | 1998-063 | 1 | 8 | 1 | Respondents Paul and Erma Berger sued petitioners special agents of the United States Fish and Wildlife Service and an assistant United States attorneyfor damages under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). They alleged that the conduct of petitioners had violated their rights under the Fourth Amendment to the United States Constitution. 129 F.3d 505 (CA9 1997). We granted certiorari, 525 U.S. 981 (1998).
Respondents live on a 75,000-acre ranch near Jordan, Montana. In 1993, a Magistrate Judge issued a warrant authorizing the search of "The Paul W. Berger ranch with appurtenant structures, excluding the residence" for evidence of "the taking of wildlife in violation of Federal laws." App. 17. About a week later, a multiple-vehicle caravan consisting of Government agents and a crew of photographers and reporters from Cable News Network, Inc. (CNN), proceeded to a point near the ranch. The agents executed the warrant and explained: "Over the course of the day, the officers searched the ranch and its outbuildings pursuant to the authority conferred by the search warrant. The CNN media crew . . . accompanied and observed the officers, and the media crew recorded the officers' conduct in executing the warrant." Brief for Petitioners 5.
Review of the complaint's much more detailed allegations to the same effect satisfies us that respondents alleged a Fourth Amendment violation under our decision today in *810 Wilson v. Layne, ante, p. 603. There we hold that police violate the Fourth Amendment rights of homeowners when they allow members of the media to accompany them during the execution of a warrant in their home. We also hold there that because the law on this question before today's decision was not clearly established, the police in that case were entitled to the defense of qualified immunity. Ante, at 605-606.
Petitioners maintain that even though they may have violated the Fourth Amendment rights of respondents, they are entitled to the defense of qualified immunity. We agree. Our holding in Wilson makes clear that this right was not clearly established in 1992. The parties have not called our attention to any decisions which would have made the state of the law any clearer a year laterat the time of the search in this case. We therefore vacate the judgment of the Court of Appeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion.
It is so ordered.
Justice Stevens, concurring in part and dissenting in part.
As I explain in my dissent in Wilson v. Layne, ante, p. 618, I am convinced that the constitutional rule recognized in that case had been clearly established long before 1992. I therefore respectfully dissent from the Court's disposition of this case on qualified immunity grounds.
| Respondents Paul and Erma Berger sued petitioners special agents of the United States Fish and Wildlife Service and an assistant United States attorneyfor damages under They alleged that the conduct of petitioners had violated their rights under the Fourth Amendment to the United States Constitution. We granted certiorari, Respondents live on a 75,000-acre ranch near Jordan, Montana. In 1993, a Magistrate Judge issued a warrant authorizing the search of "The Paul W. Berger ranch with appurtenant structures, excluding the residence" for evidence of "the taking of wildlife in violation of Federal laws." App. 17. About a week later, a multiple-vehicle caravan consisting of Government agents and a crew of photographers and reporters from Cable News Network, Inc. (CNN), proceeded to a point near the ranch. The agents executed the warrant and explained: "Over the course of the day, the officers searched the ranch and its outbuildings pursuant to the authority conferred by the search warrant. The CNN media crew accompanied and observed the officers, and the media crew recorded the officers' conduct in executing the warrant." Brief for Petitioners 5. Review of the complaint's much more detailed allegations to the same effect satisfies us that respondents alleged a Fourth Amendment violation under our decision today in *810 Wilson v. Layne, ante, p. 603. There we hold that police violate the Fourth Amendment rights of homeowners when they allow members of the media to accompany them during the execution of a warrant in their home. We also hold there that because the law on this question before today's decision was not clearly established, the police in that case were entitled to the defense of qualified immunity. Ante, at 605-606. Petitioners maintain that even though they may have violated the Fourth Amendment rights of respondents, they are entitled to the defense of qualified immunity. We agree. Our holding in Wilson makes clear that this right was not clearly established in 1992. The parties have not called our attention to any decisions which would have made the state of the law any clearer a year laterat the time of the search in this case. We therefore vacate the judgment of the Court of Appeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. Justice Stevens, concurring in part and dissenting in part. As I explain in my dissent in Wilson v. Layne, ante, p. 618, I am convinced that the constitutional rule recognized in that case had been clearly established long before 1992. I therefore respectfully dissent from the Court's disposition of this case on qualified immunity grounds. |
Justice Sotomayor | majority | false | Peter v. NantKwest, Inc. | 2019-12-11T00:00:00 | null | https://www.courtlistener.com/opinion/4685881/peter-v-nantkwest-inc/ | https://www.courtlistener.com/api/rest/v3/clusters/4685881/ | 2,019 | null | null | null | null | Section 145 of the Patent Act affords applicants “dissat-
isfied with the decision of the Patent Trial and Appeal
Board” an opportunity to file a civil action in the United
States District Court for the Eastern District of Virginia.
35 U.S. C. §145. The statute specifies that “[a]ll the ex-
penses of the proceedings shall be paid by the applicant.”
Ibid. The question presented in this case is whether such
“expenses” include the salaries of attorney and paralegal
employees of the United States Patent and Trademark Of-
fice (PTO). We hold that they do not.
I
A
The Patent Act creates two mutually exclusive pathways
to challenge an adverse decision by the PTO. The first per-
mits judicial review by direct appeal to the United States
Court of Appeals for the Federal Circuit. §141. There is “no
opportunity for the applicant to offer new evidence” in a
§141 proceeding, and the Federal Circuit “must review the
PTO’s decision on the same administrative record that was
2 PETER v. NANTKWEST, INC.
Opinion of the Court
before the [agency].” Kappos v. Hyatt, 566 U.S. 431, 434
(2012); 35 U.S. C. §144.
The second pathway allows applicants to file a new civil
action against the Director of the PTO in federal district
court. §145. Unlike §141, §145 “permits the applicant to
present new evidence . . . not presented to the PTO.” Kap-
pos, 566 U.S., at 435. The district court “acts as a factfinder
when new evidence is introduced in a §145 proceeding” and
must make de novo determinations that take into account
“both the new evidence and the administrative record be-
fore the PTO.” Id., at 444, 446. The parties may appeal the
district court’s final decision to the Federal Circuit. 28
U.S. C. §1295(a)(4)(C).
Because §145 does not limit an applicant’s ability to in-
troduce new evidence to challenge the denial of a patent,
Kappos, 566 U.S., at 439, it can result in protracted litiga-
tion. As a condition for permitting such extensive review,
the Patent Act requires applicants who avail themselves of
§145 to pay “[a]ll the expenses of the proceedings.” 35
U.S. C. §145.
B
After the PTO denied respondent NantKwest, Inc.’s pa-
tent application directed to a method for treating cancer,
NantKwest filed a complaint against the PTO Director in
the Eastern District of Virginia under §145. The District
Court granted summary judgment to the PTO, and the Fed-
eral Circuit affirmed. NantKwest, Inc. v. Lee, 686 Fed.
Appx. 864 (2017). The PTO moved for reimbursement of
expenses that included—for the first time in the 170-year
history of §145—the pro rata salaries of PTO attorneys and
a paralegal who worked on the case.
The District Court denied the PTO’s motion to recover its
pro rata legal fees as “expenses” of the §145 proceeding.
The court concluded that the statutory language referenc-
ing expenses was not clear enough to rebut the “American
Cite as: 589 U. S. ____ (2019) 3
Opinion of the Court
Rule”—the background principle that parties are responsi-
ble for their own attorney’s fees. NantKwest, Inc. v. Lee,
162 F. Supp. 3d 540, 542 (ED Va. 2016). A divided Federal
Circuit panel reversed, with Judge Stoll dissenting.
NantKwest, Inc. v. Matal, 860 F.3d 1352 (2017). The ma-
jority expressed “substantial doub[t ]” that §145 even impli-
cated the American Rule’s presumption against fee shifting
in a case in which the payment was not made to a prevailing
party. Id., at 1355. The majority concluded that, even as-
suming the American Rule presumption applied, the term
“expenses” in §145 “specific[ally]” and “explicit[ly]” author-
ized an award of fees. Id., at 1356.
The en banc Federal Circuit voted sua sponte to rehear
the case and reversed the panel over a dissent. NantKwest,
Inc. v. Iancu, 898 F.3d 1177, 1184 (2018). The majority
opinion—now authored by Judge Stoll—held that the
American Rule presumption applied to §145 because it is
“the starting point whenever a party seeks to shift fees from
one side to the other in adversarial litigation.” Id., at 1184
(citing Baker Botts L. L. P. v. ASARCO LLC, 576 U.S. 121,
___ (2015)). After examining the plain text and statutory
history of §145, the judicial and congressional understand-
ing of similar language, and overarching policy considera-
tions, the majority concluded that “[a]warding ‘[a]ll the ex-
penses’ simply cannot supply the ‘specific and explicit’
directive from Congress to shift attorneys’ fees, and nothing
else in the statute evinces congressional intent to make
them available.” 898 F.3d, at 1196 (quoting Alyeska Pipe-
line Service Co. v. Wilderness Society, 421 U.S. 240, 260
(1975)). We granted certiorari, 586 U. S. ___ (2019), and
now affirm.
II
This Court’s “ ‘basic point of reference’ when considering
the award of attorney’s fees is the bedrock principle known
4 PETER v. NANTKWEST, INC.
Opinion of the Court
as the ‘ “American Rule” ’: Each litigant pays his own attor-
ney’s fees, win or lose, unless a statute or contract provides
otherwise.” Hardt v. Reliance Standard Life Ins. Co., 560
U.S. 242, 252–253 (2010) (quoting Ruckelshaus v. Sierra
Club, 463 U.S. 680, 683 (1983)). The American Rule has
“roots in our common law reaching back to at least the 18th
century.” Baker Botts, 576 U. S., at ___ (slip op., at 3) (citing
Arcambel v. Wiseman, 3 Dall. 306 (1796)); see also Summit
Valley Industries, Inc. v. Carpenters, 456 U.S. 717, 721
(1982) (observing that the American Rule “has been consist-
ently followed for almost 200 years”); Alyeska Pipeline, 421
U.S., at 257 (referring to the presumption against shifting
attorney’s fees as a “general” rule).
The Government does not dispute this principle or its
pedigree, but argues instead that it does not apply at all.
Because the American Rule presumption is most often over-
come when a statute awards fees to a “prevailing party,” the
Government maintains, the presumption applies only to
prevailing-party statutes. And because §145 requires one
party to pay all expenses regardless of outcome, the argu-
ment goes, it is not a statute subject to the presumption.
That view is incorrect. This Court has never suggested
that any statute is exempt from the presumption against
fee shifting. Nor has it limited its American Rule inquiries
to prevailing-party statutes. Indeed, the Court has devel-
oped a “line of precedents” “addressing statutory deviations
from the American Rule that do not limit attorney’s fees
awards to the ‘prevailing party.’ ” Hardt, 560 U.S., at 254;
see also Baker Botts, 576 U. S., at ___–___ (slip op., at 5–7)
(analyzing a bankruptcy provision that did not mention pre-
vailing parties under the American Rule’s presumption
against fee shifting).
Sebelius v. Cloer, 569 U.S. 369 (2013), confirms that the
presumption against fee shifting applies to all statutes—
even those like §145 that do not explicitly award attorney’s
fees to “prevailing parties.” In Cloer, the Court interpreted
Cite as: 589 U. S. ____ (2019) 5
Opinion of the Court
a provision of the National Childhood Vaccine Injury Act
that permitted courts to “award attorney’s fees . . . ‘incur-
red [by a claimant] in any proceeding on’ an unsuccessful
vaccine-injury ‘petition . . . brought in good faith [with] a rea-
sonable basis for the claim.’ ” 569 U.S., at 371 (quoting 42
U.S. C. §300aa–15(e)(1)). The Court held that the provi-
sion’s clear language authorized attorney’s fees, even
though the statute exclusively applied to unsuccessful
litigants. 569 U.S., at 372.
Cloer establishes two points: First, contrary to the Gov-
ernment’s suggestion, Congress has indeed enacted fee-
shifting statutes that apply to nonprevailing parties. Sec-
ond, and again contrary to the Government’s view, the
American Rule applies to such statutes. The Government
itself argued in Cloer that the presumption against fee
shifting applied by default, but maintained that the statute
“depart[ed] so far from background principles about who
pays a litigant’s attorney’s fees that it [could not] be justi-
fied without a clearer statement than the Act can supply.’ ”
Brief for Petitioner in Sebelius v. Cloer, O. T. 2012, No. 12–
236, p. 32. The Court acknowledged the Government’s po-
sition but concluded that the “rul[e ] of thumb” against fee
shifting gave way because the “words of [the] statute [were]
unambiguous.” Cloer, 569 U.S., at 380–381 (citing the Gov-
ernment’s brief ).
The dissenting en banc Federal Circuit Judges also
doubted that the American Rule could apply to a §145 ac-
tion. They characterized the proceeding as an intermediate
step in obtaining a patent and the payment of legal fees as
a portion of the application costs. 898 F.3d, at 1200 (opin-
ion of Prost, J.). Yet §145 has all the marks of the kind of
adversarial litigation in which fee shifting, and the pre-
sumption against it, is common; the statute authorizes fil-
ing a separate civil action where new evidence can be intro-
duced for de novo review by a district judge. Thus, the
presumption against fee shifting not only applies, but is
6 PETER v. NANTKWEST, INC.
Opinion of the Court
particularly important because §145 permits an unsuccess-
ful government agency to recover its expenses from a pre-
vailing party. Reading §145 to award attorney’s fees in that
circumstance “would be a radical departure from longstand-
ing fee-shifting principles adhered to in a wide range of con-
texts.” Ruckelshaus, 463 U.S., at 683.
The American Rule thus provides the starting point for
assessing whether §145 authorizes payment of the PTO’s
legal fees.
III
To determine whether Congress intended to depart from
the American Rule presumption, the Court first “look[s] to
the language of the section” at issue. Hardt, 560 U.S., at
254 (internal quotation marks omitted). While “[t]he ab-
sence of [a] specific reference to attorney’s fees is not dis-
positive,” Key Tronic Corp. v. United States, 511 U.S. 809,
815 (1994), Congress must provide a sufficiently “specific
and explicit” indication of its intent to overcome the Amer-
ican Rule’s presumption against fee shifting. Alyeska Pipe-
line, 421 U.S., at 260.
A
The reference to “expenses” in §145 does not invoke attor-
ney’s fees with the kind of “clarity we have required to de-
viate from the American Rule.” Baker Botts, 576 U. S., at
___ (slip op., at 4).
Definitions of “expenses” provide scant guidance. The
term, standing alone, encompasses wide-ranging “expendi-
ture[s] of money, time, labor, or resources to accomplish a
result,” Black’s Law Dictionary 698 (10th ed. 2014),
“charges or costs met with in . . . doing one’s work,” Web-
ster’s New World College Dictionary 511 (5th ed. 2014), and
“outlay[s]” for labor, Merriam-Webster’s Dictionary of Law
180 (1996); see also N. Webster, An American Dictionary of
the English Language 319 (3d ed. 1830) (defining the term
Cite as: 589 U. S. ____ (2019) 7
Opinion of the Court
broadly to include “the employment and consumption, as of
time or labor,” or the “disbursing of money”). Though these
definitions are capacious enough to include attorney’s fees,
the mere failure to foreclose a fee award “neither specifi-
cally nor explicitly authorizes courts to shift [fees].” Baker
Botts, 576 U. S., at ___ (slip op., at 6).
Reading the term “expenses” alongside neighboring
words in the statute, however, supports a conclusion ex-
cluding legal fees from the scope of §145. The complete
phrase “expenses of the proceeding” is similar to the Latin
expensæ litis, or “expenses of the litigation.” This term has
long referred to a class of expenses commonly recovered in
litigation to which attorney’s fees did not traditionally be-
long. See Black’s Law Dictionary 461 (1891) (defining “ex-
pensæ litis” to mean “generally allowed” costs); 1 J. Bouvier,
Law Dictionary 392 (1839) (defining the term to mean the
“costs which are generally allowed to the successful party”);
id., at 244 (excluding from the definition of “costs” the “ex-
traordinary fees [a party] may have paid counsel”). These
definitions suggest that the use of “expenses” in §145 would
not have been commonly understood to include attorney’s
fees at its enactment.
Finally, the modifier “all” does not expand §145’s reach to
include attorney’s fees. Although the word conveys
breadth, it cannot transform “expenses” to reach an outlay
it would not otherwise include. Cf. Rimini Street, Inc. v.
Oracle USA, Inc., 586 U. S. ___, ___–___ (2019) (slip op., at
6–7) (“The adjective ‘full’ in §505 therefore does not alter
the meaning of the word ‘costs.’ Rather, ‘full costs’ are all
the ‘costs’ otherwise available under law”).
Section 145’s plain text thus does not overcome the Amer-
ican Rule’s presumption against fee shifting to permit the
PTO to recoup its legal personnel salaries as “expenses of
the proceedings.”
8 PETER v. NANTKWEST, INC.
Opinion of the Court
B
“The record of statutory usage” also illustrates how the
term “expenses” alone does not authorize recovery of attor-
ney’s fees. See West Virginia Univ. Hospitals, Inc. v. Casey,
499 U.S. 83, 88 (1991) (looking to statutory usage to deter-
mine whether attorney’s fees and expert fees were distinct
expenses in the fee-shifting context).
That “expenses” and “attorney’s fees” appear in tandem
across various statutes shifting litigation costs indicates
that Congress understands the two terms to be distinct and
not inclusive of each other. See, e.g., 898 F.3d, at 1188
(quoting 11 U.S. C. §363(n) (allowing trustee to recover
“any costs, attorneys’ fees, or expenses incurred”); 12
U.S. C. §1786(p) (permitting courts to “allow to any such
party such reasonable expenses and attorneys’ fees as it
deems just and proper”); 25 U.S. C. §1401(a) (allowing dis-
tribution of funds after payment of “attorney fees and liti-
gation expenses”); 26 U.S. C. §6673(a)(2)(A) (authorizing
recovery of “costs, expenses, and attorneys’ fees” against an
attorney who “unreasonably and vexatiously” multiplies
proceedings); 31 U.S. C. §3730(d)(1) (permitting recovery of
“reasonable expenses . . . plus reasonable attorneys’ fees
and costs”); 38 U.S. C. §4323(h)(2) (allowing courts to
award “reasonable attorney fees, expert witness fees, and
other litigation expenses”) (all internal quotation marks
omitted)).
While some other statutes refer to attorney’s fees as a
subset of expenses, they show only that “expenses” can in-
clude attorney’s fees when so defined. See, e.g., 28 U.S. C.
§361 (authorizing “reasonable expenses, including attor-
neys’ fees”); §1447(c) (“An order remanding the case may
require payment of just costs and any actual expenses, in-
cluding attorney fees, incurred as a result of the removal”);
29 U.S. C. §1370(e)(1) (“[T]he court in its discretion may
award all or a portion of the costs and expenses incurred in
connection with such action including reasonable attorney’s
Cite as: 589 U. S. ____ (2019) 9
Opinion of the Court
fees”); 42 U.S. C. §247d–6d(e)(9) (allowing a party to re-
cover “reasonable expenses incurred . . . , including a rea-
sonable attorney’s fee”).
The Government cites several decisions to argue how, on
occasion, this Court has used the term “expenses” to mean
“attorney’s fees.” None of the cases furthers its position.
See, e.g., Rimini Street, 586 U. S., at ___, ___ (slip op., at 4,
11) (reasoning that the term “costs” in the general federal
costs statutes does not include attorney’s fees); Taniguchi
v. Kan Pacific Saipan, Ltd., 566 U.S. 560, 573 (2012) (men-
tioning that a party may bear “expenses” related to attor-
neys, without specifying whether these “expenses” include
attorney’s fees); Arlington Central School Dist. Bd. of Ed. v.
Murphy, 548 U.S. 291, 297–303 (2006) (distinguishing “at-
torney’s fees” from “costs” and “costs” from “expenses,”
without indicating whether “expenses” encompasses attor-
ney’s fees); Casey, 499 U.S., at 99 (suggesting that an ex-
plicit reference to “expert witness fees” or “litigation ex-
penses” could shift expert fees in addition to attorney’s
fees—not that the term “litigation expenses” alone could
shift attorney’s fees).
Simply put, in common statutory usage, the term “ex-
penses” alone has never been considered to authorize an
award of attorney’s fees with sufficient clarity to overcome
the American Rule presumption.
C
In fact, the Patent Act’s history reinforces that Congress
did not intend to shift fees in §145 actions.
There is no evidence that the Patent Office, the PTO’s
predecessor, originally paid its personnel from sums col-
lected from adverse parties in litigation, or that the Office
initially even employed attorneys. See Act of July 4, 1836,
§9, 5 Stat. 121 (“[T]he moneys received into the Treasury
under this act shall constitute a fund for the payment of the
salaries of the officers and clerks herein provided for, and
10 PETER v. NANTKWEST, INC.
Opinion of the Court
all other expenses of the Patent Office, and to be called the
patent fund”). That salaries of PTO employees might have
qualified as an “expense” of the agency, however, does not
mean that they are an “expense” of a §145 proceeding. Nei-
ther has the PTO, until this litigation, sought its attorney’s
fees under §145. That the agency has managed to pay its
attorneys consistently suggests that financial necessity
does not require reading §145 to shift fees, either.
In later years, when Congress intended to provide for at-
torney’s fees in the Patent Act, it stated so explicitly. See,
e.g., 35 U.S. C. §285 (“The court in exceptional cases may
award reasonable attorney fees to the prevailing party”);
§271(e)(4) (“[A] court may award attorney fees under sec-
tion 285”); §273(f ) (same); §296(b) (same); §297(b)(1) (“Any
customer . . . who is found by a court to have been injured
by any material false or fraudulent statement . . . may re-
cover . . . reasonable costs and attorneys’ fees”). Because
Congress failed to make its intention similarly clear in
§145, the Court will not read the statute to “contravene fun-
damental precepts of the common law.” United States v.
Rodgers, 461 U.S. 677, 716 (1983).
The history of the Patent Act thus reaffirms the Court’s
view that the statute does not specifically or explicitly au-
thorize the PTO to recoup its lawyers’ or paralegals’
pro rata salaries in §145 civil actions.
* * *
For the foregoing reasons, we conclude that the PTO can-
not recover the pro rata salaries of its legal personnel under
§145 and therefore affirm the judgment of the Court of Ap-
peals for the Federal Circuit.
It is so ordered | Section 145 of the Patent Act affords applicants “dissat- isfied with the decision of the Patent Trial and Appeal Board” an opportunity to file a civil action in the United States District Court for the Eastern District of Virginia. 35 U.S. C. The statute specifies that “[a]ll the ex- penses of the proceedings shall be paid by the applicant.” The question presented in this case is whether such “expenses” include the salaries of attorney and paralegal employees of the United States Patent and Trademark Of- fice (PTO). We hold that they do not. I A The Patent Act creates two mutually exclusive pathways to challenge an adverse decision by the PTO. The first per- mits judicial review by direct appeal to the United States Court of Appeals for the Federal Circuit. There is “no opportunity for the applicant to offer new evidence” in a proceeding, and the Federal Circuit “must review the PTO’s decision on the same administrative record that was 2 PETER v. NANTKWEST, INC. Opinion of the Court before the [agency].” ; 35 U.S. C. The second pathway allows applicants to file a new civil action against the Director of the PTO in federal district court. Unlike “permits the applicant to present new evidence not presented to the PTO.” Kap- The district court “acts as a factfinder when new evidence is introduced in a proceeding” and must make de novo determinations that take into account “both the new evidence and the administrative record be- fore the PTO.” The parties may appeal the district court’s final decision to the Federal Circuit. 28 U.S. C. Because does not limit an applicant’s ability to in- troduce new evidence to challenge the denial of a patent, Kap, it can result in protracted litiga- tion. As a condition for permitting such extensive review, the Patent Act requires applicants who avail themselves of to pay “[a]ll the expenses of the proceedings.” 35 U.S. C. B After the PTO denied respondent NantKwest, Inc.’s pa- tent application directed to a method for treating cancer, NantKwest filed a complaint against the PTO Director in the Eastern District of Virginia under The District Court granted summary judgment to the PTO, and the Fed- eral Circuit affirmed. NantKwest, Inc. v. Lee, 686 Fed. Appx. 864 The PTO moved for reimbursement of expenses that included—for the first time in the 170-year history of —the pro rata salaries of PTO attorneys and a paralegal who worked on the case. The District Court denied the PTO’s motion to recover its pro rata legal fees as “expenses” of the proceeding. The court concluded that the statutory language referenc- ing expenses was not clear enough to rebut the “American Cite as: 589 U. S. (2019) 3 Opinion of the Court Rule”—the background principle that parties are responsi- ble for their own attorney’s fees. NantKwest, A divided Federal Circuit panel reversed, with Judge Stoll dissenting. NantKwest, The ma- jority expressed “substantial doub[t ]” that even impli- cated the American Rule’s presumption against fee shifting in a case in which the payment was not made to a prevailing party. The majority concluded that, even as- suming the American Rule presumption applied, the term “expenses” in “specific[ally]” and “explicit[ly]” author- ized an award of fees. The en banc Federal Circuit voted sua sponte to rehear the case and reversed the panel over a dissent. NantKwest, The majority opinion—now authored by Judge Stoll—held that the American Rule presumption applied to because it is “the starting point whenever a party seeks to shift fees from one side to the other in adversarial litigation.” at (citing Baker Botts L. L. (2015)). After examining the plain text and statutory history of the judicial and congressional understand- ing of similar language, and overarching policy considera- tions, the majority concluded that “[a]warding ‘[a]ll the ex- penses’ simply cannot supply the ‘specific and explicit’ directive from Congress to shift attorneys’ fees, and nothing else in the statute evinces congressional intent to make them available.” (quoting Alyeska Pipe- Service (1975)). We granted certiorari, 586 U. S. (2019), and now affirm. II This Court’s “ ‘basic point of reference’ when considering the award of attorney’s fees is the bedrock principle known 4 PETER v. NANTKWEST, INC. Opinion of the Court as the ‘ “American Rule” ’: Each litigant pays his own attor- ney’s fees, win or lose, unless a statute or contract provides otherwise.” v. Reliance Standard Life Ins. Co., 560 U.S. 242, 252–253 (2010) ). The American Rule has “roots in our common law reaching back to at least the 18th century.” Baker Botts, 576 U. S., at (slip op., at 3) ); see also Summit Valley Industries, (1982) (observing that the American Rule “has been consist- ently followed for almost 200 years”); Alyeska Pipe, 421 U.S., at 257 (referring to the presumption against shifting attorney’s fees as a “general” rule). The Government does not dispute this principle or its pedigree, but argues instead that it does not apply at all. Because the American Rule presumption is most often over- come when a statute awards fees to a “prevailing party,” the Government maintains, the presumption applies only to prevailing-party statutes. And because requires one party to pay all expenses regardless of outcome, the argu- ment goes, it is not a statute subject to the presumption. That view is incorrect. This Court has never suggested that any statute is exempt from the presumption against fee shifting. Nor has it limited its American Rule inquiries to prevailing-party statutes. Indeed, the Court has devel- oped a “ of precedents” “addressing statutory deviations from the American Rule that do not limit attorney’s fees awards to the ‘prevailing party.’ ” ; see also Baker Botts, 576 U. S., at – (slip op., at 5–7) (analyzing a bankruptcy provision that did not mention pre- vailing parties under the American Rule’s presumption against fee shifting). confirms that the presumption against fee shifting applies to all statutes— even those like that do not explicitly award attorney’s fees to “prevailing parties.” In the Court interpreted Cite as: 589 U. S. (2019) 5 Opinion of the Court a provision of the National Childhood Vaccine Injury Act that permitted courts to “award attorney’s fees ‘incur- red [by a claimant] in any proceeding on’ an unsuccessful vaccine-injury ‘petition brought in good faith [with] a rea- sonable basis for the claim.’ ” (quoting 42 U.S. C. The Court held that the provi- sion’s clear language authorized attorney’s fees, even though the statute exclusively applied to unsuccessful establishes two points: First, contrary to the Gov- ernment’s suggestion, Congress has indeed enacted fee- shifting statutes that apply to nonprevailing parties. Sec- ond, and again contrary to the Government’s view, the American Rule applies to such statutes. The Government itself argued in that the presumption against fee shifting applied by default, but maintained that the statute “depart[ed] so far from background principles about who pays a litigant’s attorney’s fees that it [could not] be justi- fied without a clearer statement than the Act can supply.’ ” Brief for Petitioner in O. T. 2012, No. 12– 236, p. 32. The Court acknowledged the Government’s po- sition but concluded that the “rul[e ] of thumb” against fee shifting gave way because the “words of [the] statute [were] unambiguous.” –381 (citing the Gov- ernment’s brief ). The dissenting en banc Federal Circuit Judges also doubted that the American Rule could apply to a ac- tion. They characterized the proceeding as an intermediate step in obtaining a patent and the payment of legal fees as a portion of the application (opin- ion of Prost, J.). Yet has all the marks of the kind of adversarial litigation in which fee shifting, and the pre- sumption against it, is common; the statute authorizes fil- ing a separate civil action where new evidence can be intro- duced for de novo review by a district judge. Thus, the presumption against fee shifting not only applies, but is 6 PETER v. NANTKWEST, INC. Opinion of the Court particularly important because permits an unsuccess- ful government agency to recover its expenses from a pre- vailing party. Reading to award attorney’s fees in that circumstance “would be a radical departure from longstand- ing fee-shifting principles adhered to in a wide range of con- texts.” 463 U.S., at The American Rule thus provides the starting point for assessing whether authorizes payment of the PTO’s legal fees. III To determine whether Congress intended to depart from the American Rule presumption, the Court first “look[s] to the language of the section” at issue. 560 U.S., at 254 (internal quotation marks omitted). While “[t]he ab- sence of [a] specific reference to attorney’s fees is not dis- itive,” Key Tronic 815 (1994), Congress must provide a sufficiently “specific and explicit” indication of its intent to overcome the Amer- ican Rule’s presumption against fee shifting. Alyeska Pipe- 421 U.S., at A The reference to “expenses” in does not invoke attor- ney’s fees with the kind of “clarity we have required to de- viate from the American Rule.” Baker Botts, 576 U. S., at (slip op., at 4). Definitions of “expenses” provide scant guidance. The term, standing alone, encompasses wide-ranging “expendi- ture[s] of money, time, labor, or resources to accomplish a result,” Black’s Law Dictionary 698 (10th ed. 2014), “charges or costs met with in doing one’s work,” Web- ster’s New World College Dictionary 511 (5th ed. 2014), and “outlay[s]” for labor, Merriam-Webster’s Dictionary of Law 180 (1996); see also N. Webster, An American Dictionary of the English Language 319 (3d ed. 1830) (defining the term Cite as: 589 U. S. (2019) 7 Opinion of the Court broadly to include “the employment and consumption, as of time or labor,” or the “disbursing of money”). Though these definitions are capacious enough to include attorney’s fees, the mere failure to foreclose a fee award “neither specifi- cally nor explicitly authorizes courts to shift [fees].” Baker Botts, 576 U. S., at (slip op., at 6). Reading the term “expenses” alongside neighboring words in the statute, however, supports a conclusion ex- cluding legal fees from the scope of The complete phrase “expenses of the proceeding” is similar to the Latin expensæ litis, or “expenses of the litigation.” This term has long referred to a class of expenses commonly recovered in litigation to which attorney’s fees did not traditionally be- long. See Black’s Law Dictionary 461 (1891) (defining “ex- pensæ litis” to mean “generally allowed” costs); 1 J. Bouvier, Law Dictionary 392 (1839) (defining the term to mean the “costs which are generally allowed to the successful party”); (excluding from the definition of “costs” the “ex- traordinary fees [a party] may have paid counsel”). These definitions suggest that the use of “expenses” in would not have been commonly understood to include attorney’s fees at its enactment. Finally, the modifier “all” does not expand ’s reach to include attorney’s fees. Although the word conveys breadth, it cannot transform “expenses” to reach an outlay it would not otherwise include. Cf. Rimini Street, Inc. v. Oracle USA, Inc., 586 U. S. – (2019) (slip op., at 6–7) (“The adjective ‘full’ in therefore does not alter the meaning of the word ‘’ Rather, ‘full costs’ are all the ‘costs’ otherwise available under law”). Section 145’s plain text thus does not overcome the Amer- ican Rule’s presumption against fee shifting to permit the PTO to recoup its legal personnel salaries as “expenses of the proceedings.” 8 PETER v. NANTKWEST, INC. Opinion of the Court B “The record of statutory usage” also illustrates how the term “expenses” alone does not authorize recovery of attor- ney’s fees. See West Virginia Univ. Hospitals, (looking to statutory usage to deter- mine whether attorney’s fees and expert fees were distinct expenses in the fee-shifting context). That “expenses” and “attorney’s fees” appear in tandem across various statutes shifting litigation costs indicates that Congress understands the two terms to be distinct and not inclusive of each other. See, 898 F.3d, at 11 (quoting 11 U.S. C. (allowing trustee to recover “any costs, attorneys’ fees, or expenses incurred”); 12 U.S. C. (permitting courts to “allow to any such party such reasonable expenses and attorneys’ fees as it deems just and proper”); 25 U.S. C. (allowing dis- tribution of funds after payment of “attorney fees and liti- gation expenses”); 26 U.S. C. (authorizing recovery of “costs, expenses, and attorneys’ fees” against an attorney who “unreasonably and vexatiously” multiplies proceedings); 31 U.S. C. (permitting recovery of “reasonable expenses plus reasonable attorneys’ fees and costs”); 38 U.S. C. (allowing courts to award “reasonable attorney fees, expert witness fees, and other litigation expenses”) (all internal quotation marks omitted)). While some other statutes refer to attorney’s fees as a subset of expenses, they show only that “expenses” can in- clude attorney’s fees when so defined. See, 28 U.S. C. (authorizing “reasonable expenses, including attor- neys’ fees”); (“An order remanding the case may require payment of just costs and any actual expenses, in- cluding attorney fees, incurred as a result of the removal”); 29 U.S. C. (“[T]he court in its discretion may award all or a portion of the costs and expenses incurred in connection with such action including reasonable attorney’s Cite as: 589 U. S. (2019) 9 Opinion of the Court fees”); 42 U.S. C. (allowing a party to re- cover “reasonable expenses incurred including a rea- sonable attorney’s fee”). The Government cites several decisions to argue how, on occasion, this Court has used the term “expenses” to mean “attorney’s fees.” None of the cases furthers its ition. See, Rimini Street, 586 U. S., at (slip op., at 4, 11) (reasoning that the term “costs” in the general federal costs statutes does not include attorney’s fees); Taniguchi v. Kan Pacific Saipan, Ltd., (men- tioning that a party may bear “expenses” related to attor- neys, without specifying whether these “expenses” include attorney’s fees); Arlington Central School Dist. Bd. of Ed. v. Murphy, (distinguishing “at- torney’s fees” from “costs” and “costs” from “expenses,” without indicating whether “expenses” encompasses attor- ney’s fees); (suggesting that an ex- plicit reference to “expert witness fees” or “litigation ex- penses” could shift expert fees in addition to attorney’s fees—not that the term “litigation expenses” alone could shift attorney’s fees). Simply put, in common statutory usage, the term “ex- penses” alone has never been considered to authorize an award of attorney’s fees with sufficient clarity to overcome the American Rule presumption. C In fact, the Patent Act’s history reinforces that Congress did not intend to shift fees in actions. There is no evidence that the Patent Office, the PTO’s predecessor, originally paid its personnel from sums col- lected from adverse parties in litigation, or that the Office initially even employed attorneys. See Act of July 4, 1836, (“[T]he moneys received into the Treasury under this act shall constitute a fund for the payment of the salaries of the officers and clerks herein provided for, and 10 PETER v. NANTKWEST, INC. Opinion of the Court all other expenses of the Patent Office, and to be called the patent fund”). That salaries of PTO employees might have qualified as an “expense” of the agency, however, does not mean that they are an “expense” of a proceeding. Nei- ther has the PTO, until this litigation, sought its attorney’s fees under That the agency has managed to pay its attorneys consistently suggests that financial necessity does not require reading to shift fees, either. In later years, when Congress intended to provide for at- torney’s fees in the Patent Act, it stated so explicitly. See, 35 U.S. C. (“The court in exceptional cases may award reasonable attorney fees to the prevailing party”); (“[A] court may award attorney fees under sec- tion 285”); ) (same); (same); (“Any customer who is found by a court to have been injured by any material false or fraudulent statement may re- cover reasonable costs and attorneys’ fees”). Because Congress failed to make its intention similarly clear in the Court will not read the statute to “contravene fun- damental precepts of the common law.” United States v. Rodgers, The history of the Patent Act thus reaffirms the Court’s view that the statute does not specifically or explicitly au- thorize the PTO to recoup its lawyers’ or paralegals’ pro rata salaries in civil actions. * * * For the foregoing reasons, we conclude that the PTO can- not recover the pro rata salaries of its legal personnel under and therefore affirm the judgment of the Court of Ap- peals for the Federal Circuit. It is so ordered |
Justice Ginsburg | majority | false | Mims v. Arrow Financial Services, LLC | 2012-01-18T00:00:00 | null | https://www.courtlistener.com/opinion/621043/mims-v-arrow-financial-services-llc/ | https://www.courtlistener.com/api/rest/v3/clusters/621043/ | 2,012 | 2011-014 | 2 | 9 | 0 | This case concerns enforcement, through private suits,
of the Telephone Consumer Protection Act of 1991 (TCPA
or Act), 47 U.S. C. §227. Voluminous consumer com-
plaints about abuses of telephone technology—for exam-
ple, computerized calls dispatched to private homes—
prompted Congress to pass the TCPA. Congress de-
termined that federal legislation was needed because
telemarketers, by operating interstate, were escaping
state-law prohibitions on intrusive nuisance calls. The Act
bans certain practices invasive of privacy and directs the
Federal Communications Commission (FCC or Commission)
to prescribe implementing regulations. It authorizes
States to bring civil actions to enjoin prohibited practices
and to recover damages on their residents’ behalf. The
Commission must be notified of such suits and may inter-
vene in them. Jurisdiction over state-initiated TCPA
suits, Congress provided, lies exclusively in the U. S.
district courts. Congress also provided for civil actions by
private parties seeking redress for violations of the TCPA
or of the Commission’s implementing regulations.
2 MIMS v. ARROW FINANCIAL SERVICES, LLC
Opinion of the Court
Petitioner Marcus D. Mims, complaining of multiple
violations of the Act by respondent Arrow Financial Ser-
vices, LLC (Arrow), a debt-collection agency, commenced
an action for damages against Arrow in the U. S. District
Court for the Southern District of Florida. Mims invoked
the court’s “federal question” jurisdiction, i.e., its authority
to adjudicate claims “arising under the . . . laws . . . of
the United States,” 28 U.S. C. §1331. The District Court,
affirmed by the U. S. Court of Appeals for the Eleventh
Circuit, dismissed Mims’s complaint for want of subject-
matter jurisdiction. Both courts relied on Congress’ speci-
fication, in the TCPA, that a private person may seek
redress for violations of the Act (or of the Commission’s
regulations thereunder) “in an appropriate court of [a]
State,” “if [such an action is] otherwise permitted by the
laws or rules of court of [that] State.” 47 U.S. C.
§§227(b)(3), (c)(5).
The question presented is whether Congress’ provision
for private actions to enforce the TCPA renders state
courts the exclusive arbiters of such actions. We have long
recognized that “[a] suit arises under the law that creates
the cause of action.” American Well Works Co. v. Layne &
Bowler Co., 241 U.S. 257, 260 (1916). Beyond doubt, the
TCPA is a federal law that both creates the claim Mims
has brought and supplies the substantive rules that will
govern the case. We find no convincing reason to read into
the TCPA’s permissive grant of jurisdiction to state courts
any barrier to the U. S. district courts’ exercise of the
general federal-question jurisdiction they have possessed
since 1875. See Act of Mar. 3, 1875, §1, 18 Stat. 470; 13D
C. Wright, A. Miller, E. Cooper, & R. Freer, Federal Prac-
tice and Procedure §3561, p. 163 (3d ed. 2008) (hereinafter
Wright & Miller). We hold, therefore, that federal and
state courts have concurrent jurisdiction over private suits
arising under the TCPA.
Cite as: 565 U. S. ____ (2012) 3
Opinion of the Court
I
A
In enacting the TCPA, Congress made several findings
relevant here. “Unrestricted telemarketing,” Congress
determined, “can be an intrusive invasion of privacy.”
TCPA, 105 Stat. 2394, note following 47 U.S. C. §227
(Congressional Findings) (internal quotation marks omit-
ted). In particular, Congress reported, “[m]any consumers
are outraged over the proliferation of intrusive, nuisance
[telemarketing] calls to their homes.” Ibid. (internal
quotation marks omitted). “[A]utomated or prerecorded
telephone calls” made to private residences, Congress
found, were rightly regarded by recipients as “an invasion
of privacy.” Ibid. (internal quotation marks omitted).
Although over half the States had enacted statutes re-
stricting telemarketing, Congress believed that federal
law was needed because “telemarketers [could] evade
[state-law] prohibitions through interstate operations.”
Ibid. (internal quotation marks omitted). See also S. Rep.
No. 102–178, p. 3 (1991) (“[B]ecause States do not have
jurisdiction over interstate calls[,] [m]any States have
expressed a desire for Federal legislation . . . .”).1
Subject to exceptions not pertinent here, the TCPA prin-
cipally outlaws four practices. First, the Act makes it
unlawful to use an automatic telephone dialing system
or an artificial or prerecorded voice message, without the
prior express consent of the called party, to call any emer-
gency telephone line, hospital patient, pager, cellular
telephone, or other service for which the receiver is
charged for the call. See 47 U.S. C. §227(b)(1)(A). Sec-
——————
1 In general, the Communications Act of 1934 grants to the Fed-
eral Communications Commission (FCC or Commission) authority to
regulate interstate telephone communications and reserves to the
States authority to regulate intrastate telephone communications. See
Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 360, 369–370
(1986).
4 MIMS v. ARROW FINANCIAL SERVICES, LLC
Opinion of the Court
ond, the TCPA forbids using artificial or prerecorded
voice messages to call residential telephone lines with-
out prior express consent. §227(b)(1)(B). Third, the Act
proscribes sending unsolicited advertisements to fax ma-
chines. §227(b)(1)(C). Fourth, it bans using automatic
telephone dialing systems to engage two or more of a
business’ telephone lines simultaneously. §227(b)(1)(D).2
The TCPA delegates authority to the FCC to ban ar-
tificial and prerecorded voice calls to businesses,
§227(b)(2)(A), and to exempt particular types of calls from
the law’s requirements, §§227(b)(2)(B), (C). The Act also
directs the FCC to prescribe regulations to protect the
privacy of residential telephone subscribers, possibly
through the creation of a national “do not call” system.
§227(c).3
Congress provided complementary means of enforcing
the Act. State Attorneys General may “bring a civil action
on behalf of [State] residents,” if the Attorney General
“has reason to believe that any person has engaged . . . in
a pattern or practice” of violating the TCPA or FCC regu-
lations thereunder. 47 U.S. C. A. §227(g)(1) (Supp. 2011).
“The district courts of the United States . . . have exclusive
jurisdiction” over all TCPA actions brought by State At-
torneys General. §227(g)(2). The Commission may inter-
vene in such suits. §227(g)(3).4
——————
2 In 2010, Congress amended the statute to prohibit an additional
practice: the manipulation of caller-identification information. See
Truth in Caller ID Act of 2009, Pub. L. 111–331, 124 Stat. 3572. This
legislation inserted a new subsection (e) into 47 U.S. C. §227 and
redesignated the former subsections (e), (f), and (g) as subsections (f),
(g), and (h), respectively. Ibid. While the new subsection (e) does not
bear on this case and is not here discussed, our citations of subsection
(g) refer to the current, redesignated statutory text.
3 The National Do Not Call Registry is currently managed by the
Federal Trade Commission. See 15 U.S. C. §6151 (2006 ed., Supp. IV);
16 CFR §310.4(b)(1)(iii) (2011).
4 The TCPA envisions civil actions instituted by the Commission for
Cite as: 565 U. S. ____ (2012) 5
Opinion of the Court
Title 47 U.S. C. §227(b)(3), captioned “Private right of
action,” provides:
“A person or entity may, if otherwise permitted by
the laws or rules of court of a State, bring in an ap-
propriate court of that State—
“(A) an action based on a violation of this subsection
or the regulations prescribed under this subsection to
enjoin such violation,
“(B) an action to recover for actual monetary loss
from such a violation, or to receive $500 in damages
for each such violation, whichever is greater, or
“(C) both such actions.
“If the court finds that the defendant willfully or
knowingly violated this subsection or the regulations
prescribed under this subsection, the court may, in its
discretion, increase the amount of the award to an
amount equal to not more than 3 times the amount
available under subparagraph (B) of this paragraph.”
A similar provision authorizes a private right of action for
a violation of the FCC’s implementing regulations.5
——————
violations of the implementing regulations. See 47 U.S. C. A.
§227(g)(7) (Supp. 2011). The Commission may also seek forfeiture
penalties for willful or repeated failure to comply with the Act or
regulations. 47 U.S. C. §503(b) (2006 ed. and Supp. IV), §504(a) (2006
ed.).
5 Title 47 U.S. C. §227(c)(5), also captioned “Private right of action,”
provides:
“A person who has received more than one telephone call within any
12-month period by or on behalf of the same entity in violation of the
regulations prescribed under this subsection may, if otherwise permit-
ted by the laws or rules of court of a State bring in an appropriate court
of that State—
“(A) an action based on a violation of the regulations prescribed
under this subsection to enjoin such violation,
“(B) an action to recover for actual monetary loss from such a viola-
tion, or to receive up to $500 in damages for each such violation, which-
ever is greater, or
“(C) both such actions.”
6 MIMS v. ARROW FINANCIAL SERVICES, LLC
Opinion of the Court
B
Mims, a Florida resident, alleged that Arrow, seeking to
collect a debt, repeatedly used an automatic telephone
dialing system or prerecorded or artificial voice to call
Mims’s cellular phone without his consent. Commencing
suit in the U. S. District Court for the Southern District of
Florida, Mims charged that Arrow “willfully or knowingly
violated the TCPA.” App. 14. He sought declaratory
relief, a permanent injunction, and damages. Id., at 18–
19.
The District Court held that it lacked subject-matter
jurisdiction over Mims’s TCPA claim. Under Eleventh
Circuit precedent, the District Court explained, federal-
question jurisdiction under 28 U.S. C. §1331 was unavail-
able “because Congress vested jurisdiction over [private
actions under] the TCPA exclusively in state courts.” Civ.
No. 09–22347 (SD Fla., Apr. 1, 2010), App. to Pet. for Cert.
4a–5a (citing Nicholson v. Hooters of Augusta, Inc., 136
F.3d 1287 (CA11 1998)). Adhering to Circuit precedent,
the U. S. Court of Appeals for the Eleventh Circuit af-
firmed. 421 Fed. Appx. 920, 921 (2011) (quoting Nichol-
son, 136 F.3d, at 1287–1288 (“Congress granted state
courts exclusive jurisdiction over private actions under the
[TCPA].”)).
We granted certiorari, 564 U. S. ___ (2011), to resolve a
split among the Circuits as to whether Congress granted
state courts exclusive jurisdiction over private actions
brought under the TCPA. Compare Murphey v. Lanier,
204 F.3d 911, 915 (CA9 2000) (U. S. district courts lack
federal-question jurisdiction over private TCPA actions),
ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513, 519 (CA3
1998) (same), Foxhall Realty Law Offices, Inc. v. Telecom-
munications Premium Servs., Ltd., 156 F.3d 432, 434
(CA2 1998) (same), Nicholson, 136 F.3d, at 1287–1288,
Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507,
514 (CA5 1997) (same), and International Science & Tech-
Cite as: 565 U. S. ____ (2012) 7
Opinion of the Court
nology Inst. v. Inacom Communications, Inc., 106 F.3d
1146, 1158 (CA4 1997) (same), with Charvat v. EchoStar
Satellite, LLC, 630 F.3d 459, 463–465 (CA6 2010) (U. S.
district courts have federal-question jurisdiction over
private TCPA actions), Brill v. Countrywide Home Loans,
Inc., 427 F.3d 446, 447 (CA7 2005) (same), and ErieNet,
156 F.3d, at 521 (Alito, J., dissenting) (same). We now
hold that Congress did not deprive federal courts of
federal-question jurisdiction over private TCPA suits.
II
Federal courts, though “courts of limited jurisdiction,”
Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S.
375, 377 (1994), in the main “have no more right to decline
the exercise of jurisdiction which is given, then to usurp
that which is not given.” Cohens v. Virginia, 6 Wheat. 264
(1821). Congress granted federal courts general federal-
question jurisdiction in 1875. See Act of Mar. 3, 1875, §1,
18 Stat. 470.6 As now codified, the law provides: “The
district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of
the United States.” 28 U.S. C. §1331. The statute origi-
nally included an amount-in-controversy requirement, set
at $500. See Act of Mar. 3, 1875, §1, 18 Stat. 470. Recog-
nizing the responsibility of federal courts to decide claims,
large or small, arising under federal law, Congress in 1980
eliminated the amount-in-controversy requirement in
federal-question (but not diversity) cases. See Federal
Question Jurisdictional Amendments Act of 1980, 94 Stat.
2369 (amending 28 U.S. C. §1331). See also H. R. Rep.
——————
6 Congress had previously granted general federal-question jurisdic-
tion to federal courts, but the grant was short lived. See Steffel v.
Thompson, 415 U.S. 452, 464, n. 14 (1974) (describing Midnight Judges
Act of 1801, §11, 2 Stat. 92, repealed by Act of Mar. 8, 1802, §1, 2 Stat.
132).
8 MIMS v. ARROW FINANCIAL SERVICES, LLC
Opinion of the Court
No. 96–1461, p. 1 (1980).7 Apart from deletion of the
amount-in-controversy requirement, the general federal-
question provision has remained essentially unchanged
since 1875. See 13D Wright & Miller 163.
Because federal law creates the right of action and
provides the rules of decision, Mims’s TCPA claim, in 28
U.S. C. §1331’s words, plainly “aris[es] under” the “laws
. . . of the United States.” As already noted, supra, at 2,
“[a] suit arises under the law that creates the cause of
action.” American Well Works, 241 U.S., at 260. Al-
though courts have described this formulation as “more
useful for inclusion than for . . . exclusion,” Merrell Dow
Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 809, n. 5
(1986) (quoting T. B. Harms Co. v. Eliscu, 339 F.2d 823,
827 (CA2 1964)), there is no serious debate that a federal-
ly created claim for relief is generally a “sufficient con-
dition for federal-question jurisdiction.” Grable & Sons
Metal Products, Inc. v. Darue Engineering & Mfg., 545
U.S. 308, 317 (2005).8
Arrow agrees that this action arises under federal law,
see Tr. of Oral Arg. 27, but urges that Congress vested
exclusive adjudicatory authority over private TCPA ac-
——————
7 At the time it was repealed, the amount-in-controversy requirement
in federal-question cases had reached $10,000. See Act of July 25,
1958, 72 Stat. 415. Currently, the amount in controversy in diversity
cases must exceed $75,000. See 28 U.S. C. §1332.
8 For a rare exception to the rule that a federal cause of action suffices
to ground federal-question jurisdiction, see Shoshone Mining Co. v.
Rutter, 177 U.S. 505 (1900), discussed in R. Fallon, J. Manning, D.
Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the
Federal System, 784–785 (6th ed. 2009). In Shoshone Mining, we held
that a suit for a federal mining patent did not arise under federal law
for jurisdictional purposes because “the right of possession” in contro-
versy could be determined by “local rules or customs, or state statutes,”
177 U.S., at 509, or “may present simply a question of fact,” id., at 510.
Here, by contrast, the TCPA not only creates the claim for relief and
designates the remedy; critically, the Act and regulations thereunder
supply the governing substantive law.
Cite as: 565 U. S. ____ (2012) 9
Opinion of the Court
tions in state courts. In cases “arising under” federal law,
we note, there is a “deeply rooted presumption in favor of
concurrent state court jurisdiction,” rebuttable if “Con-
gress affirmatively ousts the state courts of jurisdiction
over a particular federal claim.” Tafflin v. Levitt, 493
U.S. 455, 458–459 (1990). E.g., 28 U.S. C. §1333 (“The
district courts shall have original jurisdiction, exclusive of
the courts of the States, of: (1) Any civil case of admiralty
or maritime jurisdiction . . . .”). The presumption of con-
current state-court jurisdiction, we have recognized, can
be overcome “by an explicit statutory directive, by unmis-
takable implication from legislative history, or by a clear
incompatibility between state-court jurisdiction and feder-
al interests.” Gulf Offshore Co. v. Mobil Oil Corp., 453
U.S. 473, 478 (1981).
Arrow readily acknowledges the presumption of con-
current state-court jurisdiction, but maintains that 28
U.S. C. §1331 creates no converse presumption in favor
of federal-court jurisdiction. Instead, Arrow urges, the
TCPA, a later, more specific statute, displaces §1331, an
earlier, more general prescription. See Tr. of Oral Arg.
28–29; Brief for Respondent 31.
Section 1331, our decisions indicate, is not swept away
so easily. As stated earlier, see supra, at 8, when federal
law creates a private right of action and furnishes the
substantive rules of decision, the claim arises under feder-
al law, and district courts possess federal-question juris-
diction under §1331.9 That principle endures unless
Congress divests federal courts of their §1331 adjudica-
tory authority. See, e.g., Verizon Md. Inc. v. Public Serv.
Comm’n of Md., 535 U.S. 635, 642 (2002) (Nothing in 47
——————
9 Even when a right of action is created by state law, if the claim re-
quires resolution of significant issues of federal law, the case may arise
under federal law for 28 U.S. C. §1331 purposes. See Grable & Sons
Metal Products, Inc. v. Darue Engineering & Mfg., 545 U.S. 308, 312
(2005).
10 MIMS v. ARROW FINANCIAL SERVICES, LLC
Opinion of the Court
U. S. C. §252(e)(6) “divest[s] the district courts of their
authority under 28 U.S. C. §1331 to review the [state
agency’s] order for compliance with federal law.”); K mart
Corp. v. Cartier, Inc., 485 U.S. 176, 182–183 (1988) (“The
District Court would be divested of [§1331] jurisdiction . . .
if this action fell within one of several specific grants of
exclusive jurisdiction to the Court of International Trade
[under 28 U.S. C. §1581(a) or §1581(i)(3)].”).
“[D]ivestment of district court jurisdiction” should be
found no more readily than “divestmen[t] of state court
jurisdiction,” given “the longstanding and explicit grant
of federal question jurisdiction in 28 U.S. C. §1331.”
ErieNet, 156 F.3d, at 523 (Alito, J., dissenting); see
Gonell, Note, Statutory Interpretation of Federal Jurisdic-
tional Statutes: Jurisdiction of the Private Right of Action
under the TCPA, 66 Ford. L. Rev. 1895, 1929–1930 (1998).
Accordingly, the District Court retains §1331 jurisdiction
over Mims’s complaint unless the TCPA, expressly or by
fair implication, excludes federal-court adjudication. See
Verizon Md., 535 U.S., at 644; Gonell, supra, at 1929
(Jurisdiction over private TCPA actions “is proper under
§1331 unless Congress enacted a partial repeal of §1331 in
the TCPA.”).
III
Arrow’s arguments do not persuade us that Congress
has eliminated §1331 jurisdiction over private actions
under the TCPA.
The language of the TCPA—“A person or entity may, if
otherwise permitted by the laws or rules of court of a
State, bring [an action] in an appropriate court of that
State,” 47 U.S. C. §227(b)(3)—Arrow asserts, is uniquely
state-court oriented. See Brief for Respondent 13. That
may be, but “[i]t is a general rule that the grant of juris-
diction to one court does not, of itself, imply that the juris-
diction is to be exclusive.” United States v. Bank of New
Cite as: 565 U. S. ____ (2012) 11
Opinion of the Court
York & Trust Co., 296 U.S. 463, 479 (1936).
Nothing in the permissive language of §227(b)(3) makes
state-court jurisdiction exclusive, or otherwise purports to
oust federal courts of their 28 U.S. C. §1331 jurisdiction
over federal claims. See, e.g., Verizon Md., 535 U.S., at
643 (“[N]othing in 47 U.S. C. §252(e)(6) purports to strip
[§1331] jurisdiction.”). Cf. Yellow Freight System, Inc. v.
Donnelly, 494 U.S. 820, 823 (1990) (Title VII’s language—
“[e]ach United States district court . . . shall have jurisdic-
tion of actions brought under this subchapter,” 42 U.S. C.
§2000e–5(f)(3)—does not “ous[t] state courts of their pre-
sumptive jurisdiction.” (internal quotation marks omit-
ted)). Congress may indeed provide a track for a federal
claim exclusive of §1331. See, e.g., 42 U.S. C. §405(h)
(“No action . . . shall be brought under [§1331] to recover
on any claim arising under [Title II of the Social Security
Act].”); Weinberger v. Salfi, 422 U.S. 749, 756–757 (1975).
Congress has done nothing of that sort here, however.
Title 47 U.S. C. §227(b)(3) does not state that a private
plaintiff may bring an action under the TCPA “only” in
state court, or “exclusively” in state court. The absence of
such a statement contrasts with the Act’s instruction on
suits instituted by State Attorneys General. As earlier
noted, see supra, at 4, 47 U.S. C. A. §227(g)(2) (Supp.
2011) vests “exclusive jurisdiction over [such] actions”
in “[t]he district courts of the United States.”10 Section
227(g)(2)’s exclusivity prescription “reinforce[s] the conclu-
sion that [47 U.S. C. §227(b)(3)’s] silence . . . leaves the
jurisdictional grant of §1331 untouched. For where oth-
erwise applicable jurisdiction was meant to be excluded, it
was excluded expressly.” Verizon Md., 535 U.S., at 644;
——————
10 “How strange it would be,” the Seventh Circuit observed, “to make
federal courts the exclusive forum for suits by the states, while making
state courts the exclusive forum for suits by private plaintiffs.” Brill v.
Countrywide Home Loans, Inc., 427 F.3d 446, 451 (2005).
12 MIMS v. ARROW FINANCIAL SERVICES, LLC
Opinion of the Court
see ErieNet, 156 F.3d, at 522 (Alito, J., dissenting) (“[47
U.S. C. A. §227(g)(2) (Supp. 2011)] reveals that, while
drafting the TCPA, Congress knew full well how to grant
exclusive jurisdiction with mandatory language. The most
natural interpretation of Congress’ failure to use similar
language in [47 U.S. C. §]227(b)(3) is that Congress did
not intend to grant exclusive jurisdiction in that section.”);
Brill, 427 F.3d, at 451 (“[47 U.S. C. A. §227(g)(2) (Supp.
2011)] is explicit about exclusivity, while [47 U.S. C.]
§227(b)(3) is not; the natural inference is that the state
forum mentioned in §227(b)(3) is optional rather than
mandatory.”).11
Arrow urges that Congress would have had no reason to
provide for a private action “in an appropriate [state]
court,” §227(b)(3), if it did not mean to make the state
forum exclusive. Had Congress said nothing at all about
bringing private TCPA claims in state courts, Arrow ob-
serves, those courts would nevertheless have concurrent
——————
11 For TCPA actions brought by State Attorneys General, or
“an[other] official or agency designated by a State,” 47 U.S. C. A.
§227(g)(1) (Supp. 2011), Arrow points out, Congress specifically ad-
dressed venue, service of process, §227(g)(4), and potential conflicts
between federal and state enforcement efforts, §227(g)(7). No similar
prescriptions appear in the section on private actions, 47 U.S. C.
§227(b)(3), for this obvious reason:
“[As] the general rules governing venue and service of process in the
district courts are well established, see 28 U.S. C. §1391(b); Fed. Rules
Civ. Proc. 4, 4.1, there was no need for Congress to reiterate them in
section 227(b)(3). The fact that venue and service of process are dis-
cussed in [47 U.S. C. A. §227(g)(4) (Supp. 2011)] and not [47 U.S. C.
§]227(b)(3) simply indicates that Congress wished to make adjustments
to the general rules in the former section and not the latter. As for the
conflict provision that appears in section [47 U.S. C. A. §227(g) (Supp.
2011)] but not [47 U.S. C. §]227(b)(3), it is hardly surprising that
Congress would be concerned about agency conflicts in the section of
the TCPA dealing with official state enforcement efforts but not in the
section governing private lawsuits.” ErieNet, Inc. v. Velocity Net, Inc.,
156 F.3d 513, 523 (CA3 1998) (Alito, J., dissenting).
Cite as: 565 U. S. ____ (2012) 13
Opinion of the Court
jurisdiction. See supra, at 9. True enough, but Con-
gress had simultaneously provided for TCPA enforcement
actions by state authorities, 47 U.S. C. A. §227(g) (Supp.
2011), and had made federal district courts exclusively
competent in such cases, §227(g)(2). Congress may simply
have wanted to avoid any argument that in private ac-
tions, as in actions brought by State Attorneys General,
“federal jurisdiction is exclusive.” Brill, 427 F.3d, at 451
(emphasis deleted) (citing Yellow Freight, 494 U.S. 820
(holding, after 26 years of litigation, that claims under the
Civil Rights Act of 1964 may be resolved in state as well
as federal courts) and Tafflin, 493 U.S. 455 (holding, after
20 years of litigation, that claims under RICO may be
resolved in state as well as federal courts)). Moreover, by
providing that private actions may be brought in state
court “if otherwise permitted by the laws or rules of court
of [the] State,” 47 U.S. C. §227(b)(3), Congress arguably
gave States leeway they would otherwise lack to “decide
for [themselves] whether to entertain claims under the
[TCPA],” Brill, 427 F.3d, at 451. See Brief for Respondent
16 (Congress “le[ft] States free to decide what TCPA
claims to allow.”).12
Making state-court jurisdiction over §227(b)(3) claims
exclusive, Arrow further asserts, “fits hand in glove with
[Congress’] objective”: enabling States to control telemar-
keters whose interstate operations evaded state law. Id.,
at 15. Even so, we have observed, jurisdiction conferred
——————
12 The Supremacy Clause declares federal law the “supreme law of
the land,” and state courts must enforce it “in the absence of a valid
excuse.” Howlett v. Rose, 496 U.S. 356, 370, n. 16 (1990). “An excuse
that is inconsistent with or violates federal law is not a valid excuse:
The Supremacy Clause forbids state courts to dissociate themselves
from federal law because of disagreement with its content or a refusal
to recognize the superior authority of its source.” Id., at 371. Without
the “if otherwise permitted” language, 47 U.S. C. §227(b)(3), there is
little doubt that state courts would be obliged to hear TCPA claims.
See Testa v. Katt, 330 U.S. 386, 394 (1947).
14 MIMS v. ARROW FINANCIAL SERVICES, LLC
Opinion of the Court
by 28 U.S. C. §1331 should hold firm against “mere impli-
cation flowing from subsequent legislation.” Colorado
River Water Conservation Dist. v. United States, 424 U.S.
800, 808, 809, n. 15 (1976) (quoting Rosencrans v. United
States, 165 U.S. 257, 262 (1897)).
We are not persuaded, moreover, that Congress sought
only to fill a gap in the States’ enforcement capabilities.
Had Congress so limited its sights, it could have passed
a statute providing that out-of-state telemarketing calls
directed into a State would be subject to the laws of the
receiving State. Congress did not enact such a law. In-
stead, it enacted detailed, uniform, federal substantive
prescriptions and provided for a regulatory regime admin-
istered by a federal agency. See 47 U.S. C. §227. TCPA
liability thus depends on violation of a federal statutory
requirement or an FCC regulation, §§227(b)(3)(A), (c)(5),
not on a violation of any state substantive law.
The federal interest in regulating telemarketing to
“protec[t] the privacy of individuals” while “permit[ting]
legitimate [commercial] practices,” 105 Stat. 2394, note
following 47 U.S. C. §227 (Congressional Findings) (inter-
nal quotation marks omitted), is evident from the regu-
latory role Congress assigned to the FCC. See, e.g.,
§227(b)(2) (delegating to the FCC authority to exempt calls
from the Act’s reach and prohibit calls to businesses).
Congress’ design would be less well served if consumers
had to rely on “the laws or rules of court of a State,”
§227(b)(3), or the accident of diversity jurisdiction,13 to
——————
13 Although all courts of appeals to have considered the question have
held that the TCPA does not bar district courts from exercising diver-
sity jurisdiction under 28 U.S. C. §1332, see, e.g., Gottlieb v. Carnival
Corp., 436 F.3d 335 (CA2 2006), at oral argument, Arrow’s counsel
maintained that diversity jurisdiction “should go, too,” Tr. of Oral Arg.
39. Were we to accept Arrow’s positions that diversity and federal-
question jurisdiction are unavailable, and that state courts may refuse
to hear TCPA claims, residents of States that choose not to hear TCPA
Cite as: 565 U. S. ____ (2012) 15
Opinion of the Court
gain redress for TCPA violations.
Arrow emphasizes a statement made on the Senate floor
by Senator Hollings, the TCPA’s sponsor:
“Computerized calls are the scourge of modern civi-
lization. They wake us up in the morning; they in-
terrupt our dinner at night; they force the sick and
elderly out of bed; they hound us until we want to
rip the telephone right out of the wall.
. . . . .
“The substitute bill contains a private right-of-
action provision that will make it easier for consumers
to recover damages from receiving these computerized
calls. The provision would allow consumers to bring
an action in State court against any entity that vio-
lates the bill. The bill does not, because of constitu-
tional constraints, dictate to the States which court in
each State shall be the proper venue for such an ac-
tion, as this is a matter for State legislators to deter-
mine. Nevertheless, it is my hope that States will
make it as easy as possible for consumers to bring
such actions, preferably in small claims court. . . .
“Small claims court or a similar court would allow
the consumer to appear before the court without an
attorney. The amount of damages in this legislation
is set to be fair to both the consumer and the telemar-
keter. However, it would defeat the purposes of the
bill if the attorneys’ costs to consumers of bringing an
action were greater than the potential damages. I
thus expect that the States will act reasonably in
permitting their citizens to go to court to enforce this
bill.” 137 Cong. Rec. 30821–30822 (1991).
This statement does not bear the weight Arrow would
place on it.
——————
claims would have no forum in which to sue.
16 MIMS v. ARROW FINANCIAL SERVICES, LLC
Opinion of the Court
First, the views of a single legislator, even a bill’s spon-
sor, are not controlling. Consumer Product Safety Comm’n
v. GTE Sylvania, Inc., 447 U.S. 102, 118 (1980). Second,
Senator Hollings did not mention federal-court jurisdiction
or otherwise suggest that 47 U.S. C. §227(b)(3) is intend-
ed to divest federal courts of authority to hear TCPA
claims. Hollings no doubt believed that mine-run TCPA
claims would be pursued most expeditiously in state
small-claims court.14 But one cannot glean from his
statement any expectation that those courts, or state
courts generally, would have exclusive jurisdiction over
private actions alleging violations of the Act or of the
FCC’s implementing regulations. Third, even if we agreed
with Arrow that Senator Hollings expected private TCPA
actions to proceed solely in state courts, and even if other
supporters shared his view, that expectation would not
control our judgment on 28 U.S. C. §1331’s compass. Cf.
Yellow Freight, 494 U.S., at 826 (“persuasive showing
that most legislators, judges, and administrators . . .
involved in the enactment, amendment, enforcement, and
interpretation of Title VII expected that such litiga-
tion would be processed exclusively in federal courts”
did not overcome presumption of concurrent state-court
jurisdiction).
Among its arguments for state-court exclusivity, Arrow
raises a concern about the impact on federal courts were
we to uphold §1331 jurisdiction over private actions under
the TCPA. “[G]iven the enormous volume of telecommuni-
cations presenting potential claims,” Arrow projects, fed-
eral courts could be inundated by $500-per-violation TCPA
——————
14 The complaint in this very case, we note, could not have been
brought in small-claims court. Mims alleged some 12 calls, and sought
treble damages ($1,500) for each. See App. 9–14; Tr. of Oral Arg. 12.
The amount he sought to recover far exceeded the $5,000 ceiling on
claims a Florida small-claims court can adjudicate. See Fla. Small
Claims Rule 7.010(b) (rev. ed. 2011).
Cite as: 565 U. S. ____ (2012) 17
Opinion of the Court
claims. Brief for Respondent 33. “Moreover, if plaintiffs
are free to bring TCPA claims in federal court under
§1331, then defendants sued in state court would be equal-
ly free to remove those cases to federal court under 28
U.S. C. §1441.” Id., at 22–23. Indeed, Arrow suggests,
defendants could use removal as a mechanism to force
small-claims-court plaintiffs to abandon suit rather than
“figh[t] it out” in the “more expensive federal forum.” Id.,
at 23.
Arrow’s floodgates argument assumes “a shocking de-
gree of noncompliance” with the Act, Reply Brief 11, and
seems to us more imaginary than real. The current fed-
eral district court civil filing fee is $350. 28 U.S. C.
§1914(a). How likely is it that a party would bring a $500
claim in, or remove a $500 claim to, federal court? Lexis
and Westlaw searches turned up 65 TCPA claims removed
to federal district courts in Illinois, Indiana, and Wiscon-
sin since the Seventh Circuit held, in October 2005, that
the Act does not confer exclusive jurisdiction on state
courts. All 65 cases were class actions, not individual
cases removed from small-claims court.15 There were also
26 private TCPA claims brought initially in federal district
courts; of those, 24 were class actions.
IV
Nothing in the text, structure, purpose, or legislative
history of the TCPA calls for displacement of the federal-
question jurisdiction U. S. district courts ordinarily have
——————
15 When Congress wants to make federal claims instituted in state
court nonremovable, it says just that. See Breuer v. Jim’s Concrete of
Brevard, Inc., 538 U.S. 691, 696–697 (2003) (quoting, e.g., 28 U.S. C.
§1445(a) (“A civil action in any State court against a railroad or its
receivers or trustees, [arising under §§51–60 of Title 45,] may not be
removed to any district court of the United States.”) and 15 U.S. C.
§77v(a) (“[N]o case arising under this subchapter and brought in any
State court of competent jurisdiction shall be removed to any court of
the United States.”)).
18 MIMS v. ARROW FINANCIAL SERVICES, LLC
Opinion of the Court
under 28 U.S. C. §1331. In the absence of direction from
Congress stronger than any Arrow has advanced, we apply
the familiar default rule: Federal courts have §1331 juris-
diction over claims that arise under federal law. Because
federal law gives rise to the claim for relief Mims has
stated and specifies the substantive rules of decision, the
Eleventh Circuit erred in dismissing Mims’s case for lack
of subject-matter jurisdiction.
* * *
For the reasons stated, the judgment of the United
States Court of Appeals for the Eleventh Circuit is re-
versed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered | This case concerns enforcement, through private suits, of the Telephone Consumer Protection Act of 1991 (TCPA or Act), 47 U.S. C. Voluminous consumer com- plaints about abuses of telephone technology—for exam- ple, computerized calls dispatched to private homes— prompted Congress to pass the TCPA. Congress de- termined that federal legislation was needed because telemarketers, by operating interstate, were escaping state-law prohibitions on intrusive nuisance calls. The Act bans certain practices invasive of privacy and directs the Federal Communications Commission (FCC or Commission) to prescribe implementing regulations. It authorizes States to bring civil actions to enjoin prohibited practices and to recover damages on their residents’ behalf. The Commission must be notified of such suits and may inter- vene in them. Jurisdiction over state-initiated TCPA suits, Congress provided, lies exclusively in the U. S. district courts. Congress also provided for civil actions by private parties seeking redress for violations of the TCPA or of the Commission’s implementing regulations. 2 MIMS v. ARROW FINANCIAL SERVICES, LLC Opinion of the Court Petitioner Marcus D. Mims, complaining of multiple violations of the Act by respondent Arrow Financial Ser- vices, LLC (Arrow), a debt-collection agency, commenced an action for damages against Arrow in the U. S. District Court for the Southern District of Florida. Mims invoked the court’s “federal question” jurisdiction, i.e., its authority to adjudicate claims “arising under the laws of the United States,” 28 U.S. C. The District Court, affirmed by the U. S. Court of Appeals for the Eleventh Circuit, dismissed Mims’s complaint for want of subject- matter jurisdiction. Both courts relied on Congress’ speci- fication, in the TCPA, that a private per may seek redress for violations of the Act (or of the Commission’s regulations thereunder) “in an appropriate court of [a] State,” “if [such an action is] otherwise permitted by the laws or rules of court of [that] State.” 47 U.S. C. (c)(5). The question presented is whether Congress’ provision for private actions to enforce the TCPA renders state courts the exclusive arbiters of such actions. We have long recognized that “[a] suit arises under the law that creates the cause of action.” American Well Beyond doubt, the TCPA is a federal law that both creates the claim Mims has brought and supplies the substantive rules that will govern the case. We find no convincing rea to read into the TCPA’s permissive grant of jurisdiction to state courts any barrier to the U. S. district courts’ exercise of the general federal-question jurisdiction they have possessed since 1875. See Act of Mar. 3, 1875, ; 13D C. Wright, A. Miller, E. Cooper, & R. Freer, Federal Prac- tice and Procedure p. 163 (3d ed. 2008) (hereinafter Wright & Miller). We hold, therefore, that federal and state courts have concurrent jurisdiction over private suits arising under the TCPA. Cite as: 565 U. S. (2012) 3 Opinion of the Court I A In enacting the TCPA, Congress made several findings relevant here. “Unrestricted telemarketing,” Congress determined, “can be an intrusive invasion of privacy.” TCPA, note following 47 U.S. C. (Congressional Findings) (internal quotation marks omit- ted). In particular, Congress reported, “[m]any consumers are outraged over the proliferation of intrusive, nuisance [telemarketing] calls to their homes.” (internal quotation marks omitted). “[A]utomated or prerecorded telephone calls” made to private residences, Congress found, were rightly regarded by recipients as “an invasion of privacy.” Although over half the States had enacted statutes re- stricting telemarketing, Congress believed that federal law was needed because “telemarketers [could] evade [state-law] prohibitions through interstate operations.” See also S. Rep. No. 102–178, p. 3 (1991) (“[B]ecause States do not have jurisdiction over interstate calls[,] [m]any States have expressed a desire for Federal legislation”).1 Subject to exceptions not pertinent here, the TCPA prin- cipally outlaws four practices. First, the Act makes it unlawful to use an automatic telephone dialing system or an artificial or prerecorded voice message, without the prior express consent of the called party, to call any emer- gency telephone line, hospital patient, pager, cellular telephone, or other service for which the receiver is charged for the call. See 47 U.S. C. (b)(1)(A). Sec- —————— 1 In general, the Communications Act of 1934 grants to the Fed- eral Communications Commission (FCC or Commission) authority to regulate interstate telephone communications and reserves to the States authority to regulate intrastate telephone communications. See Louisiana Pub. Serv. 369–370 (1986). 4 MIMS v. ARROW FINANCIAL SERVICES, LLC Opinion of the Court ond, the TCPA forbids using artificial or prerecorded voice messages to call residential telephone lines with- out prior express consent. (b)(1)(B). Third, the Act proscribes sending unsolicited advertisements to fax ma- chines. (b)(1)(C). Fourth, it bans using automatic telephone dialing systems to engage two or more of a business’ telephone lines simultaneously. (b)(1)(D).2 The TCPA delegates authority to the FCC to ban ar- tificial and prerecorded voice calls to businesses, (b)(2)(A), and to exempt particular types of calls from the law’s requirements, §(b)(2)(B), (C). The Act also directs the FCC to prescribe regulations to protect the privacy of residential telephone subscribers, possibly through the creation of a national “do not call” system. (c).3 Congress provided complementary means of enforcing the Act. State Attorneys General may “bring a civil action on behalf of [State] residents,” if the Attorney General “has rea to believe that any per has engaged in a pattern or practice” of violating the TCPA or FCC regu- lations thereunder. 47 U.S. C. A. (g)(1) “The district courts of the United States have exclusive jurisdiction” over all TCPA actions brought by State At- torneys General. (g)(2). The Commission may inter- vene in such suits. (g)(3).4 —————— 2 In Congress amended the statute to prohibit an additional practice: the manipulation of caller-identification information. See Truth in Caller ID Act of 2009, Pub. L. 111–331, This legislation inserted a new subsection (e) into 47 U.S. C. and redesignated the former subsections (e), (f), and (g) as subsections (f), (g), and (h), respectively. While the new subsection (e) does not bear on this case and is not here discussed, our citations of subsection (g) refer to the current, redesignated statutory text. 3 The National Do Not Call Registry is currently managed by the Federal Trade Commission. See 15 U.S. C. ( ed., Supp. IV); (b)(1)(iii) 4 The TCPA envisions civil actions instituted by the Commission for Cite as: 565 U. S. (2012) 5 Opinion of the Court Title 47 U.S. C. (b)(3), captioned “Private right of action,” provides: “A per or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an ap- propriate court of that State— “(A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation, “(B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or “(C) both such actions. “If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.” A similar provision authorizes a private right of action for a violation of the FCC’s implementing regulations.5 —————— violations of the implementing regulations. See 47 U.S. C. A. (g)(7) The Commission may also seek forfeiture penalties for willful or repeated failure to comply with the Act or regulations. 47 U.S. C. ( ed. and Supp. IV), ( ed.). 5 Title 47 U.S. C. (c)(5), also captioned “Private right of action,” provides: “A per who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection may, if otherwise permit- ted by the laws or rules of court of a State bring in an appropriate court of that State— “(A) an action based on a violation of the regulations prescribed under this subsection to enjoin such violation, “(B) an action to recover for actual monetary loss from such a viola- tion, or to receive up to $500 in damages for each such violation, which- ever is greater, or “(C) both such actions.” 6 MIMS v. ARROW FINANCIAL SERVICES, LLC Opinion of the Court B Mims, a Florida resident, alleged that Arrow, seeking to collect a debt, repeatedly used an automatic telephone dialing system or prerecorded or artificial voice to call Mims’s cellular phone without his consent. Commencing suit in the U. S. District Court for the Southern District of Florida, Mims charged that Arrow “willfully or knowingly violated the TCPA.” App. 14. He sought declaratory relief, a permanent injunction, and damages. at 18– 19. The District Court held that it lacked subject-matter jurisdiction over Mims’s TCPA claim. Under Eleventh Circuit precedent, the District Court explained, federal- question jurisdiction under 28 U.S. C. was unavail- able “because Congress vested jurisdiction over [private actions under] the TCPA exclusively in state courts.” Civ. No. 09–22347 App. to Pet. for Cert. 4a–5a ). Adhering to Circuit precedent, the U. S. Court of Appeals for the Eleventh Circuit af- firmed. (quoting Nichol- –1288 (“Congress granted state courts exclusive jurisdiction over private actions under the [TCPA].”)). We granted certiorari, 564 U. S. to resolve a split among the Circuits as to whether Congress granted state courts exclusive jurisdiction over private actions brought under the TCPA. Compare (U. S. district courts lack federal-question jurisdiction over private TCPA actions), Foxhall Realty Law Offices, Nichol, –1288, Chair King, 514 (CA5 1997) and International Science & Tech- Cite as: 565 U. S. (2012) 7 Opinion of the Court nology Inst. v. Inacom Communications, Inc., 106 F.3d 1146, 1158 (CA4 1997) with (U. S. district courts have federal-question jurisdiction over private TCPA actions), and We now hold that Congress did not deprive federal courts of federal-question jurisdiction over private TCPA suits. II Federal courts, though “courts of limited jurisdiction,” Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994), in the main “have no more right to decline the exercise of jurisdiction which is given, then to usurp that which is not given.” (1821). Congress granted federal courts general federal- question jurisdiction in 1875. See Act of Mar. 3, 1875,6 As now codified, the law provides: “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S. C. The statute origi- nally included an amount-in-controversy requirement, set at $500. See Act of Mar. 3, 1875, Recog- nizing the responsibility of federal courts to decide claims, large or small, arising under federal law, Congress in 1980 eliminated the amount-in-controversy requirement in federal-question (but not diversity) cases. See Federal Question Jurisdictional Amendments Act of 1980, 94 Stat. 2369 (amending 28 U.S. C. ). See also H. R. Rep. —————— 6 Congress had previously granted general federal-question jurisdic- tion to federal courts, but the grant was short lived. See Steffel v. Thomp, 415 (describing Midnight Judges Act of 1801, repealed by Act of Mar. 8, 1802, 2 Stat. 132). 8 MIMS v. ARROW FINANCIAL SERVICES, LLC Opinion of the Court No. 96–1461, p. 17 Apart from deletion of the amount-in-controversy requirement, the general federal- question provision has remained essentially unchanged since 1875. See 13D Wright & Miller 163. Because federal law creates the right of action and provides the rules of decision, Mims’s TCPA claim, in 28 U.S. C. ’s words, plainly “aris[es] under” the “laws of the United States.” As already “[a] suit arises under the law that creates the cause of action.” American Well 241 U.S., at Al- though courts have described this formulation as “more useful for inclusion than for exclusion,” Merrell Dow Pharmaceuticals Thomp, 478 U.S. 804, 809, n. 5 (1986) (quoting T. B. Harms 827 (CA2 1964)), there is no serious debate that a federal- ly created claim for relief is generally a “sufficient con- dition for federal-question jurisdiction.” Grable & Sons Metal Products, Darue Engineering & Mfg., 545 U.S. 308, 3178 Arrow agrees that this action arises under federal law, see Tr. of Oral Arg. 27, but urges that Congress vested exclusive adjudicatory authority over private TCPA ac- —————— 7 At the time it was repealed, the amount-in-controversy requirement in federal-question cases had reached $10,000. See Act of July 25, 1958, Currently, the amount in controversy in diversity cases must exceed $75,000. See 28 U.S. C. 8 For a rare exception to the rule that a federal cause of action suffices to ground federal-question jurisdiction, see Shoshone Mining Co. v. Rutter, discussed in R. Fallon, J. Manning, D. Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System, 784–785 (6th ed. 2009). In Shoshone Mining, we held that a suit for a federal mining patent did not arise under federal law for jurisdictional purposes because “the right of possession” in contro- versy could be determined by “local rules or customs, or state statutes,” or “may present simply a question of fact,” Here, by contrast, the TCPA not only creates the claim for relief and designates the remedy; critically, the Act and regulations thereunder supply the governing substantive law. Cite as: 565 U. S. (2012) 9 Opinion of the Court tions in state courts. In cases “arising under” federal law, we note, there is a “deeply rooted presumption in favor of concurrent state court jurisdiction,” rebuttable if “Con- gress affirmatively ousts the state courts of jurisdiction over a particular federal claim.” Tafflin v. Levitt, 493 U.S. 455, 458–459 E.g., 28 U.S. C. (“The district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction”). The presumption of con- current state-court jurisdiction, we have recognized, can be overcome “by an explicit statutory directive, by unmis- takable implication from legislative history, or by a clear incompatibility between state-court jurisdiction and feder- al interests.” Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 478 (1981). Arrow readily acknowledges the presumption of con- current state-court jurisdiction, but maintains th8 U.S. C. creates no converse presumption in favor of federal-court jurisdiction. Instead, Arrow urges, the TCPA, a later, more specific statute, displaces an earlier, more general prescription. See Tr. of Oral Arg. 28–29; Brief for Respondent 31. Section 1331, our decisions indicate, is not swept away so easily. As stated earlier, see when federal law creates a private right of action and furnishes the substantive rules of decision, the claim arises under feder- al law, and district courts possess federal-question juris- diction under 9 That principle endures unless Congress divests federal courts of their adjudica- tory authority. See, e.g., Verizon Public Serv. Comm’n of 10 MIMS v. ARROW FINANCIAL SERVICES, LLC Opinion of the Court U. S. C. “divest[s] the district courts of their authority under 28 U.S. C. to review the [state agency’s] order for compliance with federal law.”); K mart Accordingly, the District Court retains jurisdiction over Mims’s complaint unless the TCPA, expressly or by fair implication, excludes federal-court adjudication. See Verizon ; (Jurisdiction over private TCPA actions “is proper under unless Congress enacted a partial repeal of in the TCPA.”). III Arrow’s arguments do not persuade us that Congress has eliminated jurisdiction over private actions under the TCPA. The language of the TCPA—“A per or entity may, if otherwise permitted by the laws or rules of court of a State, bring [an action] in an appropriate court of that State,” 47 U.S. C. (b)(3)—Arrow asserts, is uniquely state-court oriented. See Brief for Respondent 13. That may be, but “[i]t is a general rule that the grant of juris- diction to one court does not, of itself, imply that the juris- diction is to be exclusive.” United States v. Bank of New Cite as: 565 U. S. (2012) 11 Opinion of the Court York & Trust Co., Nothing in the permissive language of (b)(3) makes state-court jurisdiction exclusive, or otherwise purports to oust federal courts of their 28 U.S. C. jurisdiction over federal claims. See, e.g., Verizon 535 U.S., at 643 (“[N]othing in 47 U.S. C. purports to strip [] jurisdiction.”). Cf. Yellow System, Inc. v. Donnelly, (Title VII’s language— “[e]ach United States district court shall have jurisdic- tion of actions brought under this subchapter,” 42 U.S. C. §e–5(f)(3)—does not “ous[t] state courts of their pre- sumptive jurisdiction.” (internal quotation marks omit- ted)). Congress may indeed provide a track for a federal claim exclusive of See, e.g., 42 U.S. C. (“No action shall be brought under [] to recover on any claim arising under [Title II of the Social Security Act].”); Congress has done nothing of that sort here, however. Title 47 U.S. C. (b)(3) does not state that a private plaintiff may bring an action under the TCPA “only” in state court, or “exclusively” in state court. The absence of such a statement contrasts with the Act’s instruction on suits instituted by State Attorneys General. As earlier see 47 U.S. C. A. (g)(2) vests “exclusive jurisdiction over [such] actions” in “[t]he district courts of the United States.”10 Section 227(g)(2)’s exclusivity prescription “reinforce[s] the conclu- sion that [47 U.S. C. (b)(3)’s] silence leaves the jurisdictional grant of untouched. For where oth- erwise applicable jurisdiction was meant to be excluded, it was excluded expressly.” Verizon ; —————— 10 “How strange it would be,” the Seventh Circuit observed, “to make federal courts the exclusive forum for suits by the states, while making state courts the exclusive forum for suits by private plaintiffs.” v. Countrywide Home Loans, Inc., 12 MIMS v. ARROW FINANCIAL SERVICES, LLC Opinion of the Court see (“[47 U.S. C. A. (g)(2) ] reveals that, while drafting the TCPA, Congress knew full well how to grant exclusive jurisdiction with mandatory language. The most natural interpretation of Congress’ failure to use similar language in [47 U.S. C. is that Congress did not intend to grant exclusive jurisdiction in that section.”); 427 F.3d, 51 (“[47 U.S. C. A. (g)(2) ] is explicit about exclusivity, while [47 U.S. C.] (b)(3) is not; the natural inference is that the state forum mentioned in (b)(3) is optional rather than mandatory.”).11 Arrow urges that Congress would have had no rea to provide for a private action “in an appropriate [state] court,” (b)(3), if it did not mean to make the state forum exclusive. Had Congress said nothing at all about bringing private TCPA claims in state courts, Arrow ob- serves, those courts would nevertheless have concurrent —————— 11 For TCPA actions brought by State Attorneys General, or “an[other] official or agency designated by a State,” 47 U.S. C. A. (g)(1) Arrow points out, Congress specifically ad- dressed venue, service of process, (g)(4), and potential conflicts between federal and state enforcement efforts, (g)(7). No similar prescriptions appear in the section on private actions, 47 U.S. C. (b)(3), for this obvious rea: “[As] the general rules governing venue and service of process in the district courts are well established, see 28 U.S. C. Fed. Rules Civ. Proc. 4, 4.1, there was no need for Congress to reiterate them in section 227(b)(3). The fact that venue and service of process are dis- cussed in [47 U.S. C. A. (g)(4) ] and not [47 U.S. C. simply indicates that Congress wished to make adjustments to the general rules in the former section and not the latter. As for the conflict provision that appears in section [47 U.S. C. A. (g) ] but not [47 U.S. C. it is hardly surprising that Congress would be concerned about agency conflicts in the section of the TCPA dealing with official state enforcement efforts but not in the section governing private lawsuits.” Cite as: 565 U. S. (2012) 13 Opinion of the Court jurisdiction. See True enough, but Con- gress had simultaneously provided for TCPA enforcement actions by state authorities, 47 U.S. C. A. (g) and had made federal district courts exclusively competent in such cases, (g)(2). Congress may simply have wanted to avoid any argument that in private ac- tions, as in actions brought by State Attorneys General, “federal jurisdiction is exclusive.” 427 F.3d, 51 (emphasis deleted) (citing Yellow (holding, after 26 years of litigation, that claims under the Civil Rights Act of 1964 may be resolved in state as well as federal courts) and Tafflin, (holding, after 20 years of litigation, that claims under RICO may be resolved in state as well as federal courts)). Moreover, by providing that private actions may be brought in state court “if otherwise permitted by the laws or rules of court of [the] State,” 47 U.S. C. (b)(3), Congress arguably gave States leeway they would otherwise lack to “decide for [themselves] whether to entertain claims under the [TCPA],” 427 F.3d, 51. See Brief for Respondent 16 (Congress “le[ft] States free to decide what TCPA claims to allow.”).12 Making state-court jurisdiction over (b)(3) claims exclusive, Arrow further asserts, “fits hand in glove with [Congress’] objective”: enabling States to control telemar- keters whose interstate operations evaded state law. at 15. Even so, we have observed, jurisdiction conferred —————— 12 The Supremacy Clause declares federal law the “supreme law of the land,” and state courts must enforce it “in the absence of a valid excuse.” “An excuse that is inconsistent with or violates federal law is not a valid excuse: The Supremacy Clause forbids state courts to dissociate themselves from federal law because of disagreement with its content or a refusal to recognize the superior authority of its source.” Without the “if otherwise permitted” language, 47 U.S. C. (b)(3), there is little doubt that state courts would be obliged to hear TCPA claims. See 14 MIMS v. ARROW FINANCIAL SERVICES, LLC Opinion of the Court by 28 U.S. C. should hold firm against “mere impli- cation flowing from subsequent legislation.” Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 808, 809, n. 15 (1976) ). We are not persuaded, moreover, that Congress sought only to fill a gap in the States’ enforcement capabilities. Had Congress so limited its sights, it could have passed a statute providing that out-of-state telemarketing calls directed into a State would be subject to the laws of the receiving State. Congress did not enact such a law. In- stead, it enacted detailed, uniform, federal substantive prescriptions and provided for a regulatory regime admin- istered by a federal agency. See 47 U.S. C. TCPA liability thus depends on violation of a federal statutory requirement or an FCC regulation, §(b)(3)(A), (c)(5), not on a violation of any state substantive law. The federal interest in regulating telemarketing to “protec[t] the privacy of individuals” while “permit[ting] legitimate [commercial] practices,” note following 47 U.S. C. (Congressional Findings) (inter- nal quotation marks omitted), is evident from the regu- latory role Congress assigned to the FCC. See, e.g., (b)(2) (delegating to the FCC authority to exempt calls from the Act’s reach and prohibit calls to businesses). Congress’ design would be less well served if consumers had to rely on “the laws or rules of court of a State,” (b)(3), or the accident of diversity jurisdiction,13 to —————— 13 Although all courts of appeals to have considered the question have held that the TCPA does not bar district courts from exercising diver- sity jurisdiction under 28 U.S. C. see, e.g., at oral argument, Arrow’s counsel maintained that diversity jurisdiction “should go, too,” Tr. of Oral Arg. 39. Were we to accept Arrow’s positions that diversity and federal- question jurisdiction are unavailable, and that state courts may refuse to hear TCPA claims, residents of States that choose not to hear TCPA Cite as: 565 U. S. (2012) 15 Opinion of the Court gain redress for TCPA violations. Arrow emphasizes a statement made on the Senate floor by Senator Hollings, the TCPA’s sponsor: “Computerized calls are the scourge of modern civi- lization. They wake us up in the morning; they in- terrupt our dinner at night; they force the sick and elderly out of bed; they hound us until we want to rip the telephone right out of the wall. “The substitute bill contains a private right-of- action provision that will make it easier for consumers to recover damages from receiving these computerized calls. The provision would allow consumers to bring an action in State court against any entity that vio- lates the bill. The bill does not, because of constitu- tional constraints, dictate to the States which court in each State shall be the proper venue for such an ac- tion, as this is a matter for State legislators to deter- mine. Nevertheless, it is my hope that States will make it as easy as possible for consumers to bring such actions, preferably in small claims court. “Small claims court or a similar court would allow the consumer to appear before the court without an attorney. The amount of damages in this legislation is set to be fair to both the consumer and the telemar- keter. However, it would defeat the purposes of the bill if the attorneys’ costs to consumers of bringing an action were greater than the potential damages. I thus expect that the States will act reaably in permitting their citizens to go to court to enforce this bill.” 137 Cong. Rec. 30821–30822 (1991). This statement does not bear the weight Arrow would place on it. —————— claims would have no forum in which to sue. 16 MIMS v. ARROW FINANCIAL SERVICES, LLC Opinion of the Court First, the views of a single legislator, even a bill’s spon- sor, are not controlling. Consumer Product Safety Comm’n v. GTE Sylvania, Inc., U.S. 102, Second, Senator Hollings did not mention federal-court jurisdiction or otherwise suggest th7 U.S. C. (b)(3) is intend- ed to divest federal courts of authority to hear TCPA claims. Hollings no doubt believed that mine-run TCPA claims would be pursued most expeditiously in state small-claims court.14 But one cannot glean from his statement any expectation that those courts, or state courts generally, would have exclusive jurisdiction over private actions alleging violations of the Act or of the FCC’s implementing regulations. Third, even if we agreed with Arrow that Senator Hollings expected private TCPA actions to proceed solely in state courts, and even if other supporters shared his view, that expectation would not control our judgment on 28 U.S. C. ’s compass. Cf. Yellow 494 U.S., 26 (“persuasive showing that most legislators, judges, and administrators involved in the enactment, amendment, enforcement, and interpretation of Title VII expected that such litiga- tion would be processed exclusively in federal courts” did not overcome presumption of concurrent state-court jurisdiction). Among its arguments for state-court exclusivity, Arrow raises a concern about the impact on federal courts were we to uphold jurisdiction over private actions under the TCPA. “[G]iven the enormous volume of telecommuni- cations presenting potential claims,” Arrow projects, fed- eral courts could be inundated by $500-per-violation TCPA —————— 14 The complaint in this very case, we note, could not have been brought in small-claims court. Mims alleged some 12 calls, and sought treble damages ($1,500) for each. See App. 9–14; Tr. of Oral Arg. 12. The amount he sought to recover far exceeded the $5,000 ceiling on claims a Florida small-claims court can adjudicate. See Fla. Small Claims Rule 7.010(b) Cite as: 565 U. S. (2012) 17 Opinion of the Court claims. Brief for Respondent 33. “Moreover, if plaintiffs are free to bring TCPA claims in federal court under then defendants sued in state court would be equal- ly free to remove those cases to federal court under 28 U.S. C. 2–23. Indeed, Arrow suggests, defendants could use removal as a mechanism to force small-claims-court plaintiffs to abandon suit rather than “figh[t] it out” in the “more expensive federal forum.” 3. Arrow’s floodgates argument assumes “a shocking de- gree of noncompliance” with the Act, Reply Brief 11, and seems to us more imaginary than real. The current fed- eral district court civil filing fee is $350. 28 U.S. C. How likely is it that a party would bring a $500 claim in, or remove a $500 claim to, federal court? Lexis and Westlaw searches turned up 65 TCPA claims removed to federal district courts in Illinois, Indiana, and Wiscon- sin since the Seventh Circuit held, in October that the Act does not confer exclusive jurisdiction on state courts. All 65 cases were class actions, not individual cases removed from small-claims court.15 There were also 26 private TCPA claims brought initially in federal district courts; of those, 24 were class actions. IV Nothing in the text, structure, purpose, or legislative history of the TCPA calls for displacement of the federal- question jurisdiction U. S. district courts ordinarily have —————— 15 When Congress wants to make federal claims instituted in state court nonremovable, it says just that. See (quoting, e.g., 28 U.S. C. (“A civil action in any State court against a railroad or its receivers or trustees, [arising under of Title 45,] may not be removed to any district court of the United States.”) and 15 U.S. C. (“[N]o case arising under this subchapter and brought in any State court of competent jurisdiction shall be removed to any court of the United States.”)). 18 MIMS v. ARROW FINANCIAL SERVICES, LLC Opinion of the Court under 28 U.S. C. In the absence of direction from Congress stronger than any Arrow has advanced, we apply the familiar default rule: Federal courts have juris- diction over claims that arise under federal law. Because federal law gives rise to the claim for relief Mims has stated and specifies the substantive rules of decision, the Eleventh Circuit erred in dismissing Mims’s case for lack of subject-matter jurisdiction. * * * For the reas stated, the judgment of the United States Court of Appeals for the Eleventh Circuit is re- versed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered |
Justice Powell | majority | false | United States v. Loud Hawk | 1986-03-03T00:00:00 | null | https://www.courtlistener.com/opinion/111554/united-states-v-loud-hawk/ | https://www.courtlistener.com/api/rest/v3/clusters/111554/ | 1,986 | 1985-023 | 1 | 5 | 4 | In this case we must decide, first, whether the Speedy Trial Clause of the Sixth Amendment[1] applies to time during which respondents were neither under indictment nor subjected to any official restraint, and, second, whether certain delays occasioned by interlocutory appeals were properly weighed in assessing respondents' right to a speedy trial. A divided panel of the Court of Appeals for the Ninth Circuit weighed most of the 90 months from the time of respondents' arrests and initial indictment in November 1975 until the District Court's dismissal of the indictment in May 1983 towards respondents' claims under the Speedy Trial Clause. We conclude that the time that no indictment was outstanding against respondents should not weigh towards respondents' speedy trial claims. We also find that in this case the delay attributable to interlocutory appeals by the Government and respondents does not establish a violation of the Speedy Trial *305 Clause. Accordingly, we reverse the holding of the Court of Appeals that respondents were denied their right to a speedy trial.
I
In view of the nature of respondents' claim, we state the factual and procedural history of this case in some detail. On November 14, 1975, pursuant to a tip from the Federal Bureau of Investigation, Oregon state troopers stopped two vehicles in search of several federal fugitives.[2] After an exchange of gunfire and a motor chase, state troopers captured all but one of the respondents, Dennis Banks.[3] Both vehicles were locked and impounded while federal and state authorities obtained search warrants.
Searches of the vehicles over the next two days disclosed 350 pounds of dynamite,[4] 6 partially assembled time bombs, *306 2,600 rounds of ammunition, 150 blasting caps, 9 empty hand grenades, and miscellaneous firearms.[5] Oregon law enforcement officers, apparently unaware of the evidentiary consequences, adhered to their usual policy and destroyed the dynamite. A federal agent present at the destruction photographed the explosions. United States v. Loud Hawk, 628 F.2d 1139, 1142 (CA9 1979). State officials also preserved wrappers from the dynamite casings.
A federal grand jury indicted respondents on November 25, 1975, on charges of possessing firearms and explosives. Trial in the United States District Court for the District of Oregon was set for the week of February 9, 1976. On December 22, 1975, a grand jury returned a five-count superseding indictment. This indictment charged all respondents with three counts relating to possession and transportation in commerce of an unregistered destructive device (the dynamite counts) and two counts relating to unlawful possession of firearms (the firearms counts).
Two days later, respondents filed a motion to suppress all evidence concerning the dynamite, arguing that federal and state officials had intentionally and negligently destroyed the dynamite before the defense had the opportunity to examine it. After initially denying respondents' motion,[6] and after *307 two continuances at respondents' behest,[7] the District Court granted respondents' motion to suppress on March 31, 1976. App. to Pet. for Cert. 157a. Three weeks later, the Government appealed the suppression order,[8] and moved that trial on all counts be continued pending the outcome of the appeal. The District Court denied the Government's request for a continuance, and when the case was called for trial, the Government answered "not ready." Pursuant to Federal Rule of Criminal Procedure 48(b), the District Judge dismissed the indictment with prejudice. Six months had passed since the original indictment.
The Government immediately appealed the dismissal, and the two appeals were consolidated. The Court of Appeals *308 heard argument on October 15, 1976, and a divided panel affirmed in an unreported opinion on July 26, 1977. App. to Pet. for Cert. 88a-118a. On the Government's motion, the court voted on October 17, 1977, to hear the case en banc. On March 6, 1978, the Court of Appeals en banc remanded for findings of fact on whether federal officials participated in the destruction of the dynamite and whether respondents were prejudiced by its destruction. The court retained jurisdiction over the appeal pending the District Court's findings. The District Court issued its findings on August 23, 1978, and the case returned to the Court of Appeals.
On August 7, 1979, the Court of Appeals reversed the suppression order and directed that the dynamite counts be reinstated. United States v. Loud Hawk, 628 F. 2d, at 1150. The court also held that although the Government could have gone to trial on the firearms counts pending the appeal, the District Court erred in dismissing those counts with prejudice. Id., at 1151. The Court of Appeals denied respondents' petition for rehearing on October 1, 1979. Respondents petitioned for certiorari; we denied the petition on March 3, 1980. 445 U.S. 917. The mandate of the Court of Appeals issued on March 12, 1980, 46 months after the Government filed its notice of appeal from the dismissal of the indictment. Respondents were unconditionally released during that time.
Following remand, the District Court ordered the Government to reindict on the firearms charges.[9] Respondents filed a number of motions during June and July of 1980 in response *309 to the superseding indictment,[10] including a motion to dismiss for vindictive prosecution. On August 8, 1980, the District Court granted the vindictive prosecution motion as to KaMook Banks and denied it as to respondents Dennis Banks, Render, and Loud Hawk. Both sides appealed. Respondents remained free on their own recognizance during this appeal.
The appeals were consolidated, and the Court of Appeals ordered expedited consideration. The court heard argument on January 7, 1981, but did not issue its decision until July 29, 1982. The court sustained the Government's position on all issues. United States v. Banks, 682 F.2d 841. Respondents' petitions for rehearing were denied on October 5, 1982. Respondents again petitioned for certiorari, and we denied the petition on January 10, 1983. 459 U.S. 1117. The Court of Appeals' mandate issued on January 31, 1983, almost 29 months after the appeals were filed.
The District Court scheduled trial to begin on April 11, 1983. The Government sought and received a continuance until May 3, 1983, because of alleged difficulties in locating witnesses more than seven years after the arrests. Subsequently, the court on its own motion continued the trial date until May 23, 1983, and then again rescheduled the trial for June 13. The record in this Court does not reveal the reasons *310 for these latter two continuances. Defendants objected to each continuance.
On May 20, 1983, the District Court again dismissed the indictment, this time on the ground that respondents' Sixth Amendment right to a speedy trial had been violated. 564 F. Supp. 691. The Government appealed, and unsuccessfully urged the District Court to request that the Court of Appeals expedite the appeal. On its own motion the court treated the appeal as expedited, and heard argument on January 4, 1984. A divided panel affirmed on August 30, 1984. 741 F.2d 1184.[11] We granted certiorari, 471 U.S. 1014 (1985), and now reverse.
II
The Government argues that under United States v. MacDonald, 456 U.S. 1 (1982), the time during which defendants are neither under indictment nor subject to any restraint on their liberty should be excluded weighed not at all when considering a speedy trial claim.[12] Respondents contend that even during the time the charges against them were dismissed, the Government was actively pursuing its case and they continued to be subjected to the possibility that bail might be imposed. This possibility, according to respondents, is sufficient to warrant counting the time towards a speedy trial claim.
The Court has found that when no indictment is outstanding, only the "actual restraints imposed by arrest and holding to answer a criminal charge . . . engage the particular protections of the speedy trial provision of the Sixth Amendment." United States v. Marion, 404 U.S. 307, 320 (1971) *311 (emphasis added); see MacDonald, supra, at 9. As we stated in MacDonald: "The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges." 456 U.S., at 8.
During much of the litigation, respondents were neither under indictment nor subject to bail.[13] Further judicial proceedings would have been necessary to subject respondents to any actual restraints. Cf. Klopfer v. North Carolina, 386 U.S. 213 (1967). As we stated in MacDonald: "[W]ith no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending. After the charges against him have been dismissed, `a citizen suffers no restraints on his liberty and is [no longer] the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer.' " 456 U.S., at 9.
Respondents argue that the speedy trial guarantee should apply to this period because the Government's desire to prosecute them was a matter of public record. Public suspicion, however, is not sufficient to justify the delay in favor of a defendant's speedy trial claim. We find that after the District Court dismissed the indictment against respondents and after respondents were freed without restraint, they were "in the same position as any other subject of a criminal investigation." MacDonald, supra, at 8-9. See Marion, supra, at 309. The Speedy Trial Clause does not purport to protect a defendant from all effects flowing from a delay before trial. *312 The Clause does not, for example, limit the length of a pre-indictment criminal investigation even though "the [suspect's] knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life." 456 U.S., at 9.
Nor does the fact that respondents were ordered to appear at the evidentiary hearing held on remand in the District Court during the first appeal an appearance they waived constitute the sort of "actual restraint" required under our precedents as a basis for application of the Speedy Trial Clause. Finally, we are not persuaded that respondents' need for counsel while their case was technically dismissed supports their speedy trial claim. Although the retention of counsel is frequently an inconvenience and an expense, the Speedy Trial Clause's core concern is impairment of liberty; it does not shield a suspect or a defendant from every expense or inconvenience associated with criminal defense.
We therefore find that under the rule of MacDonald, when defendants are not incarcerated or subjected to other substantial restrictions on their liberty, a court should not weigh that time towards a claim under the Speedy Trial Clause.
III
The remaining issue is how to weigh the delay occasioned by an interlocutory appeal when the defendant is subject to indictment or restraint. As we have recognized, the Sixth Amendment's guarantee of a speedy trial "is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself." United States v. Ewell, 383 U.S. 116, 120 (1966). These safeguards may be as important to the accused when the delay is occasioned by an unduly long appellate process as when the delay is caused by a lapse between the initial arrest and the drawing of a proper indictment, Ewell, supra, at *313 118-119, or by continuances in the date of trial, Barker v. Wingo, 407 U.S. 514, 517-518 (1972).
At the same time, there are important public interests in the process of appellate review. The assurance that motions to suppress evidence or to dismiss an indictment are correctly decided through orderly appellate review safeguards both the rights of defendants and the "rights of public justice." Beavers v. Haubert, 198 U.S. 77, 87 (1905). The legislative history of 18 U.S. C. § 3731 "makes it clear that Congress intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit." United States v. Wilson, 420 U.S. 332, 337 (1975).
It is, of course, true that the interests served by appellate review may sometimes stand in opposition to the right to a speedy trial. But, as the Court observed in United States v. Ewell, supra, at 121:
"It has long been the rule that when a defendant obtains a reversal of a prior, unsatisfied conviction, he may be retried in the normal course of events. . . . [This rule] has been thought wise because it protects the societal interest in trying people accused of crime, rather than granting them immunization because of legal error at a previous trial, and because it enhances the probability that appellate courts will be vigilant to strike down previous convictions that are tainted with reversible error. . . . These policies, so carefully preserved in this Court's interpretation given the Double Jeopardy Clause, would be seriously undercut by [an] interpretation given the Speedy Trial Clause [that raised a Sixth Amendment obstacle to retrial following successful attack on conviction]."
In Barker, we adopted a four-part balancing test to determine whether a series of continuances infringed upon the defendant's right to a speedy trial. 407 U.S., at 530. That test assessed the "[l]ength of delay, the reason for the *314 delay, the defendant's assertion of his right, and prejudice to the defendant." Ibid (footnote omitted). The Barker test furnishes the flexibility to take account of the competing concerns of orderly appellate review on the one hand, and a speedy trial on the other. We therefore adopt this functional test to determine the extent to which appellate time consumed in the review of pretrial motions should weigh towards a defendant's speedy trial claim. Under this test, we conclude that in this case the delays do not justify the "unsatisfactorily severe remedy of dismissal." Id., at 522.
A
Barker's first, third, and fourth factors present no great difficulty in application. The first factor, the length of delay, defines a threshold in the inquiry: there must be a delay long enough to be "presumptively prejudicial." Id., at 530. Here, a 90-month delay in the trial of these serious charges is presumptively prejudicial and serves to trigger application of Barker's other factors. Ibid.
The third factor the extent to which respondents have asserted their speedy trial rights does not support their position. Although the Court of Appeals found that respondents have repeatedly moved for dismissal on speedy trial grounds, 741 F.2d, at 1192, that finding alone does not establish that respondents have appropriately asserted their rights. We held in Barker that such assertions from defendants are "entitled to strong evidentiary weight" in determining whether their rights to a speedy trial have been denied. 407 U.S., at 531-532. These assertions, however, must be viewed in the light of respondents' other conduct.
Here, respondents' speedy trial claims are reminiscent of Penelope's tapestry.[14] At the same time respondents were making a record of claims in the District Court for speedy trial, they consumed six months by filing indisputably frivolous petitions for rehearing and for certiorari after this *315 Court's decision in United States v. Hollywood Motor Car Co., 458 U.S. 263 (1982) (federal courts without jurisdiction to hear defendant's interlocutory appeal from denial of motion to dismiss indictment). They also filled the District Court's docket with repetitive and unsuccessful motions. See, e. g., n. 10, supra.
The Court of Appeals gave "little weight" to the fourth factor, prejudice to respondents. At most, the court recognized the possibility of "impairment of a fair trial that may well result from the absence or loss of memory of witnesses in this case." 741 F.2d, at 1193. See Barker, 407 U. S., at 532. That possibility of prejudice is not sufficient to support respondents' position that their speedy trial rights were violated. In this case, moreover, delay is a two-edged sword. It is the Government that bears the burden of proving its case beyond a reasonable doubt. The passage of time may make it difficult or impossible for the Government to carry this burden.
B
The flag all litigants seek to capture is the second factor, the reason for delay. In Barker, we held that "different weights should be assigned to different reasons." Id., at 531. While a "deliberate attempt to delay the trial in order to hamper the defense," would be weighed heavily against the Government, a delay from "overcrowded courts" as was the situation here would be weighed "less heavily." Ibid. Given the important public interests in appellate review, supra, at 313, it hardly need be said that an interlocutory appeal by the Government ordinarily is a valid reason that justifies delay. In assessing the purpose and reasonableness of such an appeal, courts may consider several factors. These include the strength of the Government's position on the appealed issue, the importance of the issue in the posture of the case, and in some cases the seriousness of the crime. United States v. Herman, 576 F.2d 1139, 1146 (CA5 1978) (Wisdom, J.). For example, a delay resulting from an appeal *316 would weigh heavily against the Government if the issue were clearly tangential or frivolous. Ibid. Moreover, the charged offense usually must be sufficiently serious to justify restraints that may be imposed on the defendant pending the outcome of the appeal. Ibid.
Under Barker, delays in bringing the case to trial caused by the Government's interlocutory appeal may be weighed in determining whether a defendant has suffered a violation of his rights to a speedy trial. It is clear in this case, however, that respondents have failed to show a reason for according these delays any effective weight towards their speedy trial claims. There is no showing of bad faith or dilatory purpose on the Government's part. The Government's position in each of the appeals was strong, and the reversals by the Court of Appeals are prima facie evidence of the reasonableness of the Government's action. Moreover, despite the seriousness of the charged offenses, the District Court chose not to subject respondents to any actual restraints pending the outcome of the appeals.
The only remaining question is the weight to be attributed to delays caused by respondents' interlocutory appeals. In that limited class of cases where a pretrial appeal by the defendant is appropriate, see, e. g., Hollywood Motor Car Co., supra, at 265-266, delays from such an appeal ordinarily will not weigh in favor of a defendant's speedy trial claims. A defendant with a meritorious appeal would bear the heavy burden of showing an unreasonable delay caused by the prosecution in that appeal, or a wholly unjustifiable delay by the appellate court. A defendant who resorts to an interlocutory appeal normally should not be able upon return to the district court to reap the reward of dismissal for failure to receive a speedy trial. As one Court of Appeals has noted in the context of a District Court's consideration of pretrial motions:
"Having sought the aid of the judicial process and realizing the deliberateness that a court employs in reaching a *317 decision, the defendants are not now able to criticize the very process which they so frequently called upon." United States v. Auerbach, 420 F.2d 921, 924 (CA5 1969), rehearing denied, 423 F.2d 676, cert. denied, 399 U.S. 905 (1970).
In the present case, respondents' appeal was allowable under the law of the Ninth Circuit before our decision in Hollywood Motor Car, supra. But we find that their position was so lacking in merit that the time consumed by this appeal should not weigh in support of respondents' speedy trial claim. Nor do we weigh the additional delay of six months resulting from respondents' frivolous action in seeking rehearing and certiorari toward respondents' speedy trial claim. See ibid., decided prior to these latter actions.
IV
We cannot hold, on the facts before us, that the delays asserted by respondents weigh sufficiently in support of their speedy trial claim to violate the Speedy Trial Clause. They do not justify the severe remedy of dismissing the indictment. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is reversed.
It is so ordered. | In this case we must decide, first, whether the Speedy Trial Clause of the Sixth Amendment[1] applies to time during which respondents were neither under indictment nor subjected to any official restraint, and, second, whether certain delays occasioned by interlocutory appeals were properly weighed in assessing respondents' right to a speedy A divided panel of the Court of Appeals for the Ninth Circuit weighed most of the 90 months from the time of respondents' arrests and initial indictment in November 1975 until the District Court's dismissal of the indictment in May 1983 towards respondents' claims under the Speedy Trial Clause. We conclude that the time that no indictment was outstanding against respondents should not weigh towards respondents' speedy trial claims. We also find that in this case the delay attributable to interlocutory appeals by the Government and respondents does not establish a violation of the Speedy Trial *305 Clause. Accordingly, we reverse the holding of the Court of Appeals that respondents were denied their right to a speedy I In view of the nature of respondents' claim, we state the factual and procedural history of this case in some detail. On November 14, 1975, pursuant to a tip from the Federal Bureau of Investigation, Oregon state troopers stopped two vehicles in search of several federal fugitives.[2] After an exchange of gunfire and a motor chase, state troopers captured all but one of the respondents, Dennis Banks.[3] Both vehicles were locked and impounded while federal and state authorities obtained search warrants. Searches of the vehicles over the next two days disclosed 350 pounds of dynamite,[4] 6 partially assembled time bombs, *306 2,600 rounds of ammunition, 150 blasting caps, 9 empty hand grenades, and miscellaneous firearms.[5] Oregon law enforcement officers, apparently unaware of the evidentiary consequences, adhered to their usual policy and destroyed the dynamite. A federal agent present at the destruction photographed the explosions. United State officials also preserved wrappers from the dynamite casings. A federal grand jury indicted respondents on November 25, 1975, on charges of possessing firearms and explosives. Trial in the United States District Court for the District of Oregon was set for the week of February 9, 1976. On December 22, 1975, a grand jury returned a five-count superseding indictment. This indictment charged all respondents with three counts relating to possession and transportation in commerce of an unregistered destructive device (the dynamite counts) and two counts relating to unlawful possession of firearms (the firearms counts). Two days later, respondents filed a motion to suppress all evidence concerning the dynamite, arguing that federal and state officials had intentionally and negligently destroyed the dynamite before the defense had the opportunity to examine it. After initially denying respondents' motion,[6] and after *307 two continuances at respondents' behest,[7] the District Court granted respondents' motion to suppress on March 31, 1976. App. to Pet. for Cert. 157a. Three weeks later, the Government appealed the suppression order,[8] and moved that trial on all counts be continued pending the outcome of the appeal. The District Court denied the Government's request for a continuance, and when the case was called for trial, the Government answered "not ready." Pursuant to Federal Rule of Criminal Procedure 48(b), the District Judge dismissed the indictment with prejudice. Six months had passed since the original indictment. The Government immediately appealed the dismissal, and the two appeals were consolidated. The Court of Appeals *308 heard argument on October 15, 1976, and a divided panel affirmed in an unreported opinion on July 26, 1977. App. to Pet. for Cert. 88a-118a. On the Government's motion, the court voted on October 17, 1977, to hear the case en banc. On March 6, the Court of Appeals en banc remanded for findings of fact on whether federal officials participated in the destruction of the dynamite and whether respondents were prejudiced by its destruction. The court retained jurisdiction over the appeal pending the District Court's findings. The District Court issued its findings on August 23, and the case returned to the Court of Appeals. On August 7, the Court of Appeals reversed the suppression order and directed that the dynamite counts be reinstated. United 628 F. 2d, at 1150. The court also held that although the Government could have gone to trial on the firearms counts pending the appeal, the District Court erred in dismissing those counts with prejudice. The Court of Appeals denied respondents' petition for rehearing on October 1, Respondents petitioned for certiorari; we denied the petition on March 3, 1980. The mandate of the Court of Appeals issued on March 12, 1980, 46 months after the Government filed its notice of appeal from the dismissal of the indictment. Respondents were unconditionally released during that time. Following remand, the District Court ordered the Government to reindict on the firearms charges.[9] Respondents filed a number of motions during June and July of 1980 in response *309 to the superseding indictment,[] including a motion to dismiss for vindictive prosecution. On August 8, 1980, the District Court granted the vindictive prosecution motion as to KaMook Banks and denied it as to respondents Dennis Banks, Render, and Loud Hawk. Both sides appealed. Respondents remained free on their own recognizance during this appeal. The appeals were consolidated, and the Court of Appeals ordered expedited consideration. The court heard argument on January 7, 1981, but did not issue its decision until July 29, 1982. The court sustained the Government's position on all issues. United Respondents' petitions for rehearing were denied on October 5, 1982. Respondents again petitioned for certiorari, and we denied the petition on January 1983. The Court of Appeals' mandate issued on January 31, 1983, almost 29 months after the appeals were filed. The District Court scheduled trial to begin on April 11, 1983. The Government sought and received a continuance until May 3, 1983, because of alleged difficulties in locating witnesses more than seven years after the arrests. Subsequently, the court on its own motion continued the trial date until May 23, 1983, and then again rescheduled the trial for June 13. The record in this Court does not reveal the reasons *3 for these latter two continuances. Defendants objected to each continuance. On May 20, 1983, the District Court again dismissed the indictment, this time on the ground that respondents' Sixth Amendment right to a speedy trial had been violated. The Government appealed, and unsuccessfully urged the District Court to request that the Court of Appeals expedite the appeal. On its own motion the court treated the appeal as expedited, and heard argument on January 4, 1984. A divided panel affirmed on August 30, 1984. and now reverse. II The Government argues that under United the time during which defendants are neither under indictment nor subject to any restraint on their liberty should be excluded weighed not at all when considering a speedy trial claim.[12] Respondents contend that even during the time the charges against them were dismissed, the Government was actively pursuing its case and they continued to be subjected to the possibility that bail might be imposed. This possibility, according to respondents, is sufficient to warrant counting the time towards a speedy trial claim. The Court has found that when no indictment is outstanding, only the "actual restraints imposed by arrest and holding to answer a criminal charge engage the particular protections of the speedy trial provision of the Sixth Amendment." United *311 (emphasis added); see As we stated in : "The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges." During much of the litigation, respondents were neither under indictment nor subject to bail.[13] Further judicial proceedings would have been necessary to subject respondents to any actual restraints. Cf. As we stated in : "[W]ith no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending. After the charges against him have been dismissed, `a citizen suffers no restraints on his liberty and is [no longer] the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer.' " 456 U.S., Respondents argue that the speedy trial guarantee should apply to this period because the Government's desire to prosecute them was a matter of public record. Public suspicion, however, is not sufficient to justify the delay in favor of a defendant's speedy trial claim. We find that after the District Court dismissed the indictment against respondents and after respondents were freed without restraint, they were "in the same position as any other subject of a criminal investigation." See The Speedy Trial Clause does not purport to protect a defendant from all effects flowing from a delay before *312 The Clause does not, for example, limit the length of a pre-indictment criminal investigation even though "the [suspect's] knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life." 456 U.S., Nor does the fact that respondents were ordered to appear at the evidentiary hearing held on remand in the District Court during the first appeal an appearance they waived constitute the sort of "actual restraint" required under our precedents as a basis for application of the Speedy Trial Clause. Finally, we are not persuaded that respondents' need for counsel while their case was technically dismissed supports their speedy trial claim. Although the retention of counsel is frequently an inconvenience and an expense, the Speedy Trial Clause's core concern is impairment of liberty; it does not shield a suspect or a defendant from every expense or inconvenience associated with criminal defense. We therefore find that under the rule of when defendants are not incarcerated or subjected to other substantial restrictions on their liberty, a court should not weigh that time towards a claim under the Speedy Trial Clause. III The remaining issue is how to weigh the delay occasioned by an interlocutory appeal when the defendant is subject to indictment or restraint. As we have recognized, the Sixth Amendment's guarantee of a speedy trial "is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself." United These safeguards may be as important to the accused when the delay is occasioned by an unduly long appellate process as when the delay is caused by a lapse between the initial arrest and the drawing of a proper indictment, at *313 118-119, or by continuances in the date of trial, At the same time, there are important public interests in the process of appellate The assurance that motions to suppress evidence or to dismiss an indictment are correctly decided through orderly appellate safeguards both the rights of defendants and the "rights of public justice." The legislative history of 18 U.S. C. 3731 "makes it clear that Congress intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit." United It is, of course, true that the interests served by appellate may sometimes stand in opposition to the right to a speedy But, as the Court observed in United at 121: "It has long been the rule that when a defendant obtains a reversal of a prior, unsatisfied conviction, he may be retried in the normal course of events. [This rule] has been thought wise because it protects the societal interest in trying people accused of crime, rather than granting them immunization because of legal error at a previous trial, and because it enhances the probability that appellate courts will be vigilant to strike down previous convictions that are tainted with reversible error. These policies, so carefully preserved in this Court's interpretation given the Double Jeopardy Clause, would be seriously undercut by [an] interpretation given the Speedy Trial Clause [that raised a Sixth Amendment obstacle to retrial following successful attack on conviction]." In we adopted a four-part balancing test to determine whether a series of continuances infringed upon the defendant's right to a speedy That test assessed the "[l]ength of delay, the reason for the *314 delay, the defendant's assertion of his right, and prejudice to the defendant." Ibid (footnote omitted). The test furnishes the flexibility to take account of the competing concerns of orderly appellate on the one hand, and a speedy trial on the other. We therefore adopt this functional test to determine the extent to which appellate time consumed in the of pretrial motions should weigh towards a defendant's speedy trial claim. Under this test, we conclude that in this case the delays do not justify the "unsatisfactorily severe remedy of dismissal." A 's first, third, and fourth factors present no great difficulty in application. The first factor, the length of delay, defines a threshold in the inquiry: there must be a delay long enough to be "presumptively prejudicial." Here, a 90-month delay in the trial of these serious charges is presumptively prejudicial and serves to trigger application of 's other factors. The third factor the extent to which respondents have asserted their speedy trial rights does not support their position. Although the Court of Appeals found that respondents have repeatedly moved for dismissal on speedy trial that finding alone does not establish that respondents have appropriately asserted their rights. We held in that such assertions from defendants are "entitled to strong evidentiary weight" in determining whether their rights to a speedy trial have been denied. -532. These assertions, however, must be viewed in the light of respondents' other conduct. Here, respondents' speedy trial claims are reminiscent of Penelope's tapestry.[14] At the same time respondents were making a record of claims in the District Court for speedy trial, they consumed six months by filing indisputably frivolous petitions for rehearing and for certiorari after this *315 Court's decision in United They also filled the District Court's docket with repetitive and unsuccessful motions. See, e. g., n. The Court of Appeals gave "little weight" to the fourth factor, prejudice to respondents. At most, the court recognized the possibility of "impairment of a fair trial that may well result from the absence or loss of memory of witnesses in this case." See That possibility of prejudice is not sufficient to support respondents' position that their speedy trial rights were violated. In this case, moreover, delay is a two-edged sword. It is the Government that bears the burden of proving its case beyond a reasonable doubt. The passage of time may make it difficult or impossible for the Government to carry this burden. B The flag all litigants seek to capture is the second factor, the reason for delay. In we held that "different weights should be assigned to different reasons." While a "deliberate attempt to delay the trial in order to hamper the defense," would be weighed heavily against the Government, a delay from "overcrowded courts" as was the situation here would be weighed "less heavily." Given the important public interests in appellate it hardly need be said that an interlocutory appeal by the Government ordinarily is a valid reason that justifies delay. In assessing the purpose and reasonableness of such an appeal, courts may consider several factors. These include the strength of the Government's position on the appealed issue, the importance of the issue in the posture of the case, and in some cases the seriousness of the crime. United For example, a delay resulting from an appeal *316 would weigh heavily against the Government if the issue were clearly tangential or frivolous. Moreover, the charged offense usually must be sufficiently serious to justify restraints that may be imposed on the defendant pending the outcome of the appeal. Under delays in bringing the case to trial caused by the Government's interlocutory appeal may be weighed in determining whether a defendant has suffered a violation of his rights to a speedy It is clear in this case, however, that respondents have failed to show a reason for according these delays any effective weight towards their speedy trial claims. There is no showing of bad faith or dilatory purpose on the Government's part. The Government's position in each of the appeals was strong, and the reversals by the Court of Appeals are prima facie evidence of the reasonableness of the Government's action. Moreover, despite the seriousness of the charged offenses, the District Court chose not to subject respondents to any actual restraints pending the outcome of the appeals. The only remaining question is the weight to be attributed to delays caused by respondents' interlocutory appeals. In that limited class of cases where a pretrial appeal by the defendant is appropriate, see, e. g., Hollywood Motor delays from such an appeal ordinarily will not weigh in favor of a defendant's speedy trial claims. A defendant with a meritorious appeal would bear the heavy burden of showing an unreasonable delay caused by the prosecution in that appeal, or a wholly unjustifiable delay by the appellate court. A defendant who resorts to an interlocutory appeal normally should not be able upon return to the district court to reap the reward of dismissal for failure to receive a speedy As one Court of Appeals has noted in the context of a District Court's consideration of pretrial motions: "Having sought the aid of the judicial process and realizing the deliberateness that a court employs in reaching a *317 decision, the defendants are not now able to criticize the very process which they so frequently called upon." United rehearing denied, In the present case, respondents' appeal was allowable under the law of the Ninth Circuit before our decision in Hollywood Motor But we find that their position was so lacking in merit that the time consumed by this appeal should not weigh in support of respondents' speedy trial claim. Nor do we weigh the additional delay of six months resulting from respondents' frivolous action in seeking rehearing and certiorari toward respondents' speedy trial claim. See ibid., decided prior to these latter actions. IV We cannot hold, on the facts before us, that the delays asserted by respondents weigh sufficiently in support of their speedy trial claim to violate the Speedy Trial Clause. They do not justify the severe remedy of dismissing the indictment. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is reversed. It is so ordered. |
Justice Thomas | concurring | false | Adoptive Couple v. Baby Girl | 2013-06-25T00:00:00 | null | https://www.courtlistener.com/opinion/2959741/adoptive-couple-v-baby-girl/ | https://www.courtlistener.com/api/rest/v3/clusters/2959741/ | 2,013 | null | null | null | null | I join the Court’s opinion in full but write separately
to explain why constitutional avoidance compels this out-
come. Each party in this case has put forward a plausible
interpretation of the relevant sections of the Indian Child
Welfare Act (ICWA). However, the interpretations offered
by respondent Birth Father and the United States raise
significant constitutional problems as applied to this
case. Because the Court’s decision avoids those problems,
I concur in its interpretation.
I
This case arises out of a contested state-court adoption
proceeding. Adoption proceedings are adjudicated in state
family courts across the country every day, and “domestic
relations” is “an area that has long been regarded as a
virtually exclusive province of the States.” Sosna v. Iowa,
419 U.S. 393, 404 (1975). Indeed, “[t]he whole subject of
the domestic relations of husband and wife, parent and
child, belongs to the laws of the States and not to the laws
of the United States.” In re Burrus, 136 U.S. 586, 593–
594 (1890). Nevertheless, when Adoptive Couple filed a
petition in South Carolina Family Court to finalize their
adoption of Baby Girl, Birth Father, who had relinquished
2 ADOPTIVE COUPLE v. BABY GIRL
THOMAS, J., concurring
his parental rights via a text message to Birth Mother,
claimed a federal right under the ICWA to block the adop-
tion and to obtain custody.
The ICWA establishes “federal standards that govern
state-court child custody proceedings involving Indian
children.” Ante, at 2. The ICWA defines “Indian child” as
“any unmarried person who is under age eighteen and is
either (a) a member of an Indian tribe or (b) is eligible
for membership in an Indian tribe and is the biological
child of a member of an Indian tribe.” 25 U.S. C. §1903(4).
As relevant, the ICWA defines “child custody proceeding,”
§1903(1), to include “adoptive placement,” which means
“the permanent placement of an Indian child for adoption,
including any action resulting in a final decree of adop-
tion,” §1903(1)(iv), and “termination of parental rights,”
which means “any action resulting in the termination of
the parent-child relationship,” §1903(1)(ii).
The ICWA restricts a state court’s ability to terminate
the parental rights of an Indian parent in two relevant
ways. Section 1912(f) prohibits a state court from involun-
tarily terminating parental rights “in the absence of a
determination, supported by evidence beyond a reasonable
doubt, including testimony of qualified expert witnesses,
that the continued custody of the child by the parent or
Indian custodian is likely to result in serious emotional or
physical damage to the child.” Section 1912(d) prohibits a
state court from terminating parental rights until the
court is satisfied “that active efforts have been made to
provide remedial services and rehabilitative programs
designed to prevent the breakup of the Indian family and
that these efforts have proved unsuccessful.” A third
provision creates specific placement preferences for the
adoption of Indian children, which favor placement with
Indians over other adoptive families. §1915(a). Operating
together, these requirements often lead to different out-
comes than would result under state law. That is precisely
Cite as: 570 U. S. ____ (2013) 3
THOMAS, J., concurring
what happened here. See ante, at 6 (“It is undisputed
that, had Baby Girl not been 3/256 Cherokee, Biological
Father would have had no right to object to her adoption
under South Carolina law”).
The ICWA recognizes States’ inherent “jurisdiction over
Indian child custody proceedings,” §1901(5), but asserts
that federal regulation is necessary because States “have
often failed to recognize the essential tribal relations of
Indian people and the cultural and social standards pre-
vailing in Indian communities and families,” ibid. However,
Congress may regulate areas of traditional state concern
only if the Constitution grants it such power. Admt. 10
(“The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are re-
served to the States respectively, or to the people”). The
threshold question, then, is whether the Constitution
grants Congress power to override state custody law
whenever an Indian is involved.
II
The ICWA asserts that the Indian Commerce Clause,
Art. I, §8, cl. 3, and “other constitutional authority” pro-
vides Congress with “plenary power over Indian affairs.”
§1901(1). The reference to “other constitutional authority”
is not illuminating, and I am aware of no other enumer-
ated power that could even arguably support Congress’
intrusion into this area of traditional state authority. See
Fletcher, The Supreme Court and Federal Indian Policy,
85 Neb. L. Rev. 121, 137 (2006) (“As a matter of federal
constitutional law, the Indian Commerce Clause grants
Congress the only explicit constitutional authority to deal
with Indian tribes”); Natelson, The Original Understand-
ing of the Indian Commerce Clause, 85 Denver U. L. Rev.
201, 210 (2007) (hereinafter Natelson) (evaluating, and
rejecting, other potential sources of authority supporting
congressional power over Indians). The assertion of ple-
4 ADOPTIVE COUPLE v. BABY GIRL
THOMAS, J., concurring
nary authority must, therefore, stand or fall on Congress’
power under the Indian Commerce Clause. Although this
Court has said that the “central function of the Indian
Commerce Clause is to provide Congress with plenary
power to legislate in the field of Indian affairs,” Cotton
Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989),
neither the text nor the original understanding of the
Clause supports Congress’ claim to such “plenary” power.
A
The Indian Commerce Clause gives Congress authority
“[t]o regulate Commerce . . . with the Indian tribes.”
Art. I, §8, cl. 3 (emphasis added). “At the time the original
Constitution was ratified, ‘commerce’ consisted of selling,
buying, and bartering, as well as transporting for these
purposes.” United States v. Lopez, 514 U.S. 549, 585
(1995) (THOMAS, J., concurring). See also 1 S. Johnson, A
Dictionary of the English Language 361 (4th rev. ed. 1773)
(reprint 1978) (defining commerce as “Intercourse; ex-
change of one thing for another; interchange of any thing;
trade; traffick”). “[W]hen Federalists and Anti-Federalists
discussed the Commerce Clause during the ratification
period, they often used trade (in its selling/bartering
sense) and commerce interchangeably.” Lopez, supra, at
586 (THOMAS, J., concurring). The term “commerce” did
not include economic activity such as “manufacturing and
agriculture,” ibid., let alone noneconomic activity such as
adoption of children.
Furthermore, the term “commerce with Indian tribes”
was invariably used during the time of the founding to
mean “ ‘trade with Indians.’ ” See, e.g., Natelson, 215–216,
and n. 97 (citing 18th-century sources); Report of Commit-
tee on Indian Affairs (Feb 20, 1787), in 32 Journals of the
Continental Congress 1774–1789, pp. 66, 68 (R. Hill ed.
1936) (hereinafter J. Cont’l Cong.) (using the phrase
“commerce with the Indians” to mean trade with the
Cite as: 570 U. S. ____ (2013) 5
THOMAS, J., concurring
Indians). And regulation of Indian commerce generally
referred to legal structures governing “the conduct of
the merchants engaged in the Indian trade, the nature of the
goods they sold, the prices charged, and similar matters.”
Natelson 216, and n. 99.
The Indian Commerce Clause contains an additional
textual limitation relevant to this case: Congress is given
the power to regulate Commerce “with the Indian tribes.”
The Clause does not give Congress the power to regulate
commerce with all Indian persons any more than the
Foreign Commerce Clause gives Congress the power to
regulate commerce with all foreign nationals traveling
within the United States. A straightforward reading of
the text, thus, confirms that Congress may only regulate
commercial interactions—“commerce”—taking place with
established Indian communities—“tribes.” That power is
far from “plenary.”
B
Congress’ assertion of “plenary power” over Indian
affairs is also inconsistent with the history of the Indian
Commerce Clause. At the time of the founding, the Clause
was understood to reserve to the States general police
powers with respect to Indians who were citizens of the
several States. The Clause instead conferred on Congress
the much narrower power to regulate trade with Indian
tribes—that is, Indians who had not been incorporated
into the body-politic of any State.
1
Before the Revolution, most Colonies adopted their own
regulations governing Indian trade. See Natelson 219,
and n. 121 (citing colonial laws). Such regulations were
necessary because colonial traders all too often abused
their Indian trading partners, through fraud, exorbitant
prices, extortion, and physical invasion of Indian territory,
6 ADOPTIVE COUPLE v. BABY GIRL
THOMAS, J., concurring
among other things. See 1 F. Prucha, The Great Father
18–20 (1984) (hereinafter Prucha); Natelson 220, and
n. 122. These abuses sometimes provoked violent Indian
retaliation. See Prucha 20. To mitigate these conflicts,
most Colonies extensively regulated traders engaged in
commerce with Indian tribes. See e.g., Ordinance to Regu-
late Indian Affairs, Statutes of South Carolina (Aug. 31,
1751), in 16 Early American Indian Documents: Treaties
and Laws, 1607–1789, pp. 331–334 (A. Vaughan and
D. Rosen eds. 1998).1 Over time, commercial regulation at
the colonial level proved largely ineffective, in part be-
cause “[t]here was no uniformity among the colonies, no
two sets of like regulations.” Prucha 21.
Recognizing the need for uniform regulation of trade
with the Indians, Benjamin Franklin proposed his own
“articles of confederation” to the Continental Congress on
July 21, 1775, which reflected his view that central control
over Indian affairs should predominate over local control.
2 J. Cont’l Cong. 195–199 (W. Ford ed. 1905). Franklin’s
proposal was not enacted, but in November 1775, Con-
gress empowered a committee to draft regulations for
the Indian trade. 3 id., at 364, 366. On July 12, 1776, the
committee submitted a draft of the Articles of Confedera-
tion to Congress, which incorporated many of Franklin’s
proposals. 5 id., at 545, 546, n. 1. The draft prohibited
States from waging offensive war against the Indians
without congressional authorization and granted Congress
——————
1 South Carolina, for example, required traders to be licensed, to be of
good moral character, and to post a bond. Ordinance to Regulate
Indian Affairs, in 16 Early American Indian Documents, at 331–334. A
potential applicant’s name was posted publicly before issuing the
license, so anyone with objections had an opportunity to raise them.
Id., at 332. Restrictions were placed on employing agents, id., at 333–
334, and names of potential agents had to be disclosed. Id., at 333.
Traders who violated these rules were subject to substantial penalties.
Id., at 331, 334.
Cite as: 570 U. S. ____ (2013) 7
THOMAS, J., concurring
the exclusive power to acquire land from the Indians out-
side state boundaries, once those boundaries had been es-
tablished. Id., at 549. This version also gave Congress
“the sole and exclusive Right and Power of . . . Regulating
the Trade, and managing all Affairs with the Indians.” Id.
at 550.
On August 20, 1776, the Committee of the Whole pre-
sented to Congress a revised draft, which provided Con-
gress with “the sole and exclusive right and power of . . .
regulating the trade, and managing all affairs with the
Indians.” Id., at 672, 681–682. Some delegates feared
that the Articles gave Congress excessive power to in-
terfere with States’ jurisdiction over affairs with Indians
residing within state boundaries. After further delibera-
tion, the final result was a clause that included a broad
grant of congressional authority with two significant
exceptions: “The United States in Congress assembled
shall also have the sole and exclusive right and power of
. . . regulating the trade and managing all affairs with the
Indians, not members of any of the States, provided that
the legislative right of any State within its own limits be
not infringed or violated.” Articles of Confederation, Art.
IX, cl. 4. As a result, Congress retained exclusive jurisdic-
tion over Indian affairs outside the borders of the States;
the States retained exclusive jurisdiction over relations
with Member-Indians;2 and Congress and the States “ex-
ercise[d] concurrent jurisdiction over transactions with
tribal Indians within state boundaries, but congressional
decisions would have to be in compliance with local law.”
Natelson 230. The drafting of the Articles of Confedera-
——————
2 Although Indians were generally considered “members” of a State if
they paid taxes or were citizens, see Natelson 230, the precise defini-
tion of the term was “not yet settled” at the time of the founding
and was “a question of frequent perplexity and contention in the fed-
eral councils,” The Federalist No. 42, p. 265 (C. Rossiter ed. 1961) (J.
Madison).
8 ADOPTIVE COUPLE v. BABY GIRL
THOMAS, J., concurring
tion reveals the delegates’ concern with protecting the
power of the States to regulate Indian persons who were
politically incorporated into the States. This concern
for state power reemerged during the drafting of the
Constitution.
2
The drafting history of the Constitutional Convention
also supports a limited construction of the Indian Com-
merce Clause. On July 24, 1787, the convention elected
a drafting committee—the Committee of Detail—and
charged it to “report a Constitution conformable to the Res-
olutions passed by the Convention.” 2 Records of the
Federal Convention of 1787, p.106 (M. Farrand rev. 1966)
(J. Madison). During the Committee’s deliberations, John
Rutledge, the chairman, suggested incorporating an In-
dian affairs power into the Constitution. Id., at 137, n. 6,
143. The first draft reported back to the convention,
however, provided Congress with authority “[t]o regulate
commerce with foreign nations, and among the several
States,” id., at 181 (Madison) (Aug. 6, 1787), but did not
include any specific Indian affairs clause. On August 18,
James Madison proposed that the Federal Government be
granted several additional powers, including the power
“[t]o regulate affairs with the Indians as well within as
without the limits of the U. States.” Id., at 324 (J. Madi-
son) (emphasis added). On August 22, Rutledge delivered
the Committee of Detail’s second report, which modified
Madison’s proposed clause. The Committee proposed to
add to Congress’ power “[t]o regulate commerce with
foreign nations, and among the several States” the words,
“and with Indians, within the Limits of any State, not
subject to the laws thereof.” Id., at 366–367 (Journal).
The Committee’s version, which echoed the Articles of
Confederation, was far narrower than Madison’s proposal.
On August 31, the revised draft was submitted to a Com-
Cite as: 570 U. S. ____ (2013) 9
THOMAS, J., concurring
mittee of Eleven for further action. Id., at 473 (Journal),
481 (J. Madison). That Committee recommended adding
to the Commerce Clause the phrase, “and with the Indian
tribes,” id., at 493, which the Convention ultimately
adopted.
It is, thus, clear that the Framers of the Constitution
were alert to the difference between the power to regulate
trade with the Indians and the power to regulate all In-
dian affairs. By limiting Congress’ power to the former, the
Framers declined to grant Congress the same broad pow-
ers over Indian affairs conferred by the Articles of Confed-
eration. See Prakash, Against Tribal Fungibility, 89
Cornell L. Rev. 1069, 1090 (2004).
During the ratification debates, opposition to the Indian
Commerce Clause was nearly nonexistent. See Natelson
248 (noting that Robert Yates, a New York Anti-Federalist
was “almost the only writer who objected to any part [of ]
of the Commerce Clause—a clear indication that its scope
was understood to be fairly narrow” (footnote omitted)).
Given the Anti-Federalists’ vehement opposition to the
Constitution’s other grants of power to the Federal Gov-
ernment, this silence is revealing. The ratifiers almost
certainly understood the Clause to confer a relatively
modest power on Congress—namely, the power to regulate
trade with Indian tribes living beyond state borders. And
this feature of the Constitution was welcomed by Federal-
ists and Anti-Federalists alike due to the considerable
interest in expanding trade with such Indian tribes. See,
e.g., The Federalist No. 42, at 265 (J. Madison) (praising
the Constitution for removing the obstacles that had
existed under the Articles of Confederation to federal
control over “trade with Indians” (emphasis added)); 3 J.
Elliot, The Debates in the Several State Conventions on
the Adoption of the Federal Constitution 580 (2d ed. 1863)
(Adam Stephens, at the Virginia ratifying convention,
June 23, 1788, describing the Indian tribes residing near
10 ADOPTIVE COUPLE v. BABY GIRL
THOMAS, J., concurring
the Mississippi and “the variety of articles which might be
obtained to advantage by trading with these people”); The
Federalist No. 24, at 158 (A. Hamilton) (arguing that
frontier garrisons would “be keys to the trade with the
Indian nations”); Brutus, (Letter) X, N. Y. J., Jan. 24,
1788, in 15 The Documentary History of the Ratification of
the Constitution 462, 465 (J. Kaminski & G. Saladino eds.
2012) (conceding that there must be a standing army for
some purposes, including “trade with Indians”). There is
little evidence that the ratifiers of the Constitution under-
stood the Indian Commerce Clause to confer anything
resembling plenary power over Indian affairs. See Natel-
son 247–250.
III
In light of the original understanding of the Indian
Commerce Clause, the constitutional problems that would
be created by application of the ICWA here are evident.
First, the statute deals with “child custody proceedings,”
§1903(1), not “commerce.” It was enacted in response to
concerns that “an alarmingly high percentage of Indian
families [were] broken up by the removal, often unwar-
ranted, of their children from them by nontribal public
and private agencies.” §1901(4). The perceived problem
was that many Indian children were “placed in non-Indian
foster and adoptive homes and institutions.” Ibid. This
problem, however, had nothing to do with commerce.
Second, the portions of the ICWA at issue here do not
regulate Indian tribes as tribes. Sections 1912(d) and (f ),
and §1915(a) apply to all child custody proceedings involv-
ing an Indian child, regardless of whether an Indian tribe
is involved. This case thus does not directly implicate
Congress’ power to “legislate in respect to Indian tribes.”
United States v. Lara, 541 U.S. 193, 200 (2004) (emphasis
added). Baby Girl was never domiciled on an Indian
Reservation, and the Cherokee Nation had no jurisdiction
Cite as: 570 U. S. ____ (2013) 11
THOMAS, J., concurring
over her. Cf. Mississippi Band of Choctaw Indians v.
Holyfield, 490 U.S. 30, 53–54 (1989) (holding that the
Indian Tribe had exclusive jurisdiction over child custody
proceedings, even though the children were born off the
reservation, because the children were “domiciled” on the
reservation for purposes of the ICWA). Although Birth
Father is a registered member of The Cherokee Nation, he
did not live on a reservation either. He was, thus, subject
to the laws of the State in which he resided (Oklahoma)
and of the State where his daughter resided during the
custody proceedings (South Carolina). Nothing in the In-
dian Commerce Clause permits Congress to enact spe-
cial laws applicable to Birth Father merely because of his
status as an Indian.3
Because adoption proceedings like this one involve
neither “commerce” nor “Indian tribes,” there is simply no
constitutional basis for Congress’ assertion of authority
over such proceedings. Also, the notion that Congress can
direct state courts to apply different rules of evidence and
procedure merely because a person of Indian descent is
involved raises absurd possibilities. Such plenary power
would allow Congress to dictate specific rules of criminal
procedure for state-court prosecutions against Indian
defendants. Likewise, it would allow Congress to substi-
tute federal law for state law when contract disputes
involve Indians. But the Constitution does not grant
Congress power to override state law whenever that law
——————
3 Petitioners and the guardian ad litem contend that applying the
ICWA to child custody proceedings on the basis of race implicates equal
protection concerns. See Brief for Petitioners 45 (arguing that the
statute would be unconstitutional “if unwed fathers with no preexisting
substantive parental rights receive a statutory preference based solely
on the Indian child’s race”); Brief for Respondent Guardian Ad Litem
48–49 (same). I need not address this argument because I am satisfied
that Congress lacks authority to regulate the child custody proceedings
in this case.
12 ADOPTIVE COUPLE v. BABY GIRL
THOMAS, J., concurring
happens to be applied to Indians. Accordingly, application
of the ICWA to these child custody proceedings would be
unconstitutional.
* * *
Because the Court’s plausible interpretation of the
relevant sections of the ICWA avoids these constitutional
problems, I concur.
Cite as: 570 U. S. ____ (2013) 1
BREYER, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–399
_________________
ADOPTIVE COUPLE, PETITIONERS v. BABY GIRL,
A MINOR CHILD UNDER THE AGE OF
FOURTEEN YEARS, ET AL. | I join the Court’s opinion in full but write separately to explain why constitutional avoidance compels this out- come. Each party in this case has put forward a plausible interpretation of the relevant sections of the Indian Child Welfare Act (ICWA). However, the interpretations offered by respondent Birth Father and the United States raise significant constitutional problems as applied to this case. Because the Court’s decision avoids those problems, I concur in its interpretation. I This case arises out of a contested state-court adoption proceeding. Adoption proceedings are adjudicated in state family courts across the country every day, and “domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States.” Indeed, “[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” In re Burrus, 593– 594 (1890). Nevertheless, when Adoptive Couple filed a petition in South Carolina Family Court to finalize their adoption of Baby Girl, Birth Father, who had relinquished 2 ADOPTIVE COUPLE v. BABY GIRL THOMAS, J., concurring his parental rights via a text message to Birth Mother, claimed a federal right under the ICWA to block the adop- tion and to obtain custody. The ICWA establishes “federal standards that govern state-court child custody proceedings involving Indian children.” Ante, at 2. The ICWA defines “Indian child” as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 U.S. C. As relevant, the ICWA defines “child custody proceeding,” to include “adoptive placement,” which means “the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adop- tion,” and “termination of parental rights,” which means “any action resulting in the termination of the parent-child relationship,” The ICWA restricts a state court’s ability to terminate the parental rights of an Indian parent in two relevant ways. Section 1912(f) prohibits a state court from involun- tarily terminating parental rights “in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” Section 1912(d) prohibits a state court from terminating parental rights until the court is satisfied “that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” A third provision creates specific placement preferences for the adoption of Indian children, which favor placement with Indians over other adoptive families. Operating together, these requirements often lead to different out- comes than would result under state law. That is precisely Cite as: 570 U. S. (2013) 3 THOMAS, J., concurring what happened here. See ante, at 6 (“It is undisputed that, had Baby Girl not been 3/256 Cherokee, Biological Father would have had no right to object to her adoption under South Carolina law”). The ICWA recognizes States’ inherent “jurisdiction over Indian child custody proceedings,” but asserts that federal regulation is necessary because States “have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards pre- vailing in Indian communities and families,” However, Congress may regulate areas of traditional state concern only if the Constitution grants it such power. Admt. 10 (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are re- served to the States respectively, or to the people”). The threshold question, then, is whether the Constitution grants Congress power to override state custody law whenever an Indian is involved. II The ICWA asserts that the Indian Commerce Clause, Art. I, cl. 3, and “other constitutional authority” pro- vides Congress with “plenary power over Indian affairs.” The reference to “other constitutional authority” is not illuminating, and I am aware of no other enumer- ated power that could even arguably support Congress’ intrusion into this area of traditional state authority. See Fletcher, The Supreme Court and Federal Indian Policy, (“As a matter of federal constitutional law, the Indian Commerce Clause grants Congress the only explicit constitutional authority to deal with Indian tribes”); Natelson, The Original Understand- ing of the Indian Commerce Clause, 85 Denver U. L. Rev. 201, 210 (7) (hereinafter Natelson) (evaluating, and rejecting, other potential sources of authority supporting congressional power over Indians). The assertion of ple- 4 ADOPTIVE COUPLE v. BABY GIRL THOMAS, J., concurring nary authority must, therefore, stand or fall on Congress’ power under the Indian Commerce Clause. Although this Court has said that the “central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs,” Cotton Petroleum neither the text nor the original understanding of the Clause supports Congress’ claim to such “plenary” power. A The Indian Commerce Clause gives Congress authority “[t]o regulate Commerce with the Indian tribes.” Art. I, cl. 3 (emphasis added). “At the time the original Constitution was ratified, ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes.” United (1995) (THOMAS, J., concurring). See also 1 S. Johnson, A Dictionary of the English Language 361 (4th rev. ed. 1773) (reprint 1978) (defining commerce as “Intercourse; ex- change of one thing for another; interchange of any thing; trade; traffick”). “[W]hen Federalists and Anti-Federalists discussed the Commerce Clause during the ratification period, they often used trade (in its selling/bartering sense) and commerce interchangeably.” at 586 (THOMAS, J., concurring). The term “commerce” did not include economic activity such as “manufacturing and agriculture,” let alone noneconomic activity such as adoption of children. Furthermore, the term “commerce with Indian tribes” was invariably used during the time of the founding to mean “ ‘trade with Indians.’ ” See, e.g., Natelson, 215–216, and n. 97 (citing 18th-century sources); Report of Commit- tee on Indian Affairs (Feb 20, 1787), in 32 Journals of the Continental Congress 1774–1789, pp. 66, 68 (R. Hill ed. 1936) (hereinafter J. Cont’l Cong.) (using the phrase “commerce with the Indians” to mean trade with the Cite as: 570 U. S. (2013) 5 THOMAS, J., concurring Indians). And regulation of Indian commerce generally referred to legal structures governing “the conduct of the merchants engaged in the Indian trade, the nature of the goods they sold, the prices charged, and similar matters.” Natelson 216, and n. 99. The Indian Commerce Clause contains an additional textual limitation relevant to this case: Congress is given the power to regulate Commerce “with the Indian tribes.” The Clause does not give Congress the power to regulate commerce with all Indian persons any more than the Foreign Commerce Clause gives Congress the power to regulate commerce with all foreign nationals traveling within the United States. A straightforward reading of the text, thus, confirms that Congress may only regulate commercial interactions—“commerce”—taking place with established Indian communities—“tribes.” That power is far from “plenary.” B Congress’ assertion of “plenary power” over Indian affairs is also inconsistent with the history of the Indian Commerce Clause. At the time of the founding, the Clause was understood to reserve to the States general police powers with respect to Indians who were citizens of the several States. The Clause instead conferred on Congress the much narrower power to regulate trade with Indian tribes—that is, Indians who had not been incorporated into the body-politic of any State. 1 Before the Revolution, most Colonies adopted their own regulations governing Indian trade. See Natelson 219, and n. 121 (citing colonial laws). Such regulations were necessary because colonial traders all too often abused their Indian trading partners, through fraud, exorbitant prices, extortion, and physical invasion of Indian territory, 6 ADOPTIVE COUPLE v. BABY GIRL THOMAS, J., concurring among other things. See 1 F. Prucha, The Great Father 18–20 (1984) (hereinafter Prucha); Natelson 220, and n. 122. These abuses sometimes provoked violent Indian retaliation. See Prucha 20. To mitigate these conflicts, most Colonies extensively regulated traders engaged in commerce with Indian tribes. See e.g., Ordinance to Regu- late Indian Affairs, Statutes of South Carolina (Aug. 31, 1751), in 16 Early American Indian Documents: Treaties and Laws, 1607–1789, pp. 331–334 (A. Vaughan and D. Rosen eds. 1998).1 Over time, commercial regulation at the colonial level proved largely ineffective, in part be- cause “[t]here was no uniformity among the colonies, no two sets of like regulations.” Prucha 21. Recognizing the need for uniform regulation of trade with the Indians, Benjamin Franklin proposed his own “articles of confederation” to the Continental Congress on July 21, 1775, which reflected his view that central control over Indian affairs should predominate over local control. 2 J. Cont’l Cong. 195–199 (W. Ford ed. 1905). Franklin’s proposal was not enacted, but in November 1775, Con- gress empowered a committee to draft regulations for the Indian trade. 3 On July 12, 1776, the committee submitted a draft of the Articles of Confedera- tion to Congress, which incorporated many of Franklin’s proposals. 5 The draft prohibited States from waging offensive war against the Indians without congressional authorization and granted Congress —————— 1 South Carolina, for example, required traders to be licensed, to be of good moral character, and to post a bond. Ordinance to Regulate Indian Affairs, in 16 Early American Indian Documents, at 331–334. A potential applicant’s name was posted publicly before issuing the license, so anyone with objections had an opportunity to raise them. Restrictions were placed on employing agents, – 334, and names of potential agents had to be disclosed. Traders who violated these rules were subject to substantial penalties. Cite as: 570 U. S. (2013) 7 THOMAS, J., concurring the exclusive power to acquire land from the Indians out- side state boundaries, once those boundaries had been es- tablished. This version also gave Congress “the sole and exclusive Right and Power of Regulating the Trade, and managing all Affairs with the Indians.” at 550. On August 20, 1776, the Committee of the Whole pre- sented to Congress a revised draft, which provided Con- gress with “the sole and exclusive right and power of regulating the trade, and managing all affairs with the Indians.” 681–682. Some delegates feared that the Articles gave Congress excessive power to in- terfere with States’ jurisdiction over affairs with Indians residing within state boundaries. After further delibera- tion, the final result was a clause that included a broad grant of congressional authority with two significant exceptions: “The United States in Congress assembled shall also have the sole and exclusive right and power of regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated.” Articles of Confederation, Art. IX, cl. 4. As a result, Congress retained exclusive jurisdic- tion over Indian affairs outside the borders of the States; the States retained exclusive jurisdiction over relations with Member-Indians;2 and Congress and the States “ex- ercise[d] concurrent jurisdiction over transactions with tribal Indians within state boundaries, but congressional decisions would have to be in compliance with local law.” Natelson 230. The drafting of the Articles of Confedera- —————— 2 Although Indians were generally considered “members” of a State if they paid taxes or were citizens, see Natelson 230, the precise defini- tion of the term was “not yet settled” at the time of the founding and was “a question of frequent perplexity and contention in the fed- eral councils,” The Federalist No. 42, p. 265 (C. Rossiter ed. 1961) (J. Madison). 8 ADOPTIVE COUPLE v. BABY GIRL THOMAS, J., concurring tion reveals the delegates’ concern with protecting the power of the States to regulate Indian persons who were politically incorporated into the States. This concern for state power reemerged during the drafting of the Constitution. 2 The drafting history of the Constitutional Convention also supports a limited construction of the Indian Com- merce Clause. On July 24, 1787, the convention elected a drafting committee—the Committee of Detail—and charged it to “report a Constitution conformable to the Res- olutions passed by the Convention.” 2 Records of the Federal Convention of 1787, p.106 (M. Farrand rev. 1966) (J. Madison). During the Committee’s deliberations, John Rutledge, the chairman, suggested incorporating an In- dian affairs power into the Constitution. at n. 6, 143. The first draft reported back to the convention, however, provided Congress with authority “[t]o regulate commerce with foreign nations, and among the several States,” (Aug. 6, 1787), but did not include any specific Indian affairs clause. On August 18, James Madison proposed that the Federal Government be granted several additional powers, including the power “[t]o regulate affairs with the Indians as well within as without the limits of the U. States.” (J. Madi- son) (emphasis added). On August 22, Rutledge delivered the Committee of Detail’s second report, which modified Madison’s proposed clause. The Committee proposed to add to Congress’ power “[t]o regulate commerce with foreign nations, and among the several States” the words, “and with Indians, within the Limits of any State, not subject to the laws thereof.” at 366–367 The Committee’s version, which echoed the Articles of Confederation, was far narrower than Madison’s proposal. On August 31, the revised draft was submitted to a Com- Cite as: 570 U. S. (2013) 9 THOMAS, J., concurring mittee of Eleven for further action. 481 (J. Madison). That Committee recommended adding to the Commerce Clause the phrase, “and with the Indian tribes,” which the Convention ultimately adopted. It is, thus, clear that the Framers of the Constitution were alert to the difference between the power to regulate trade with the Indians and the power to regulate all In- dian affairs. By limiting Congress’ power to the former, the Framers declined to grant Congress the same broad pow- ers over Indian affairs conferred by the Articles of Confed- eration. See Prakash, Against Tribal Fungibility, 89 Cornell L. Rev. 1069, 1090 During the ratification debates, opposition to the Indian Commerce Clause was nearly nonexistent. See Natelson 248 (noting that Robert Yates, a New York Anti-Federalist was “almost the only writer who objected to any part [of ] of the Commerce Clause—a clear indication that its scope was understood to be fairly narrow” (footnote omitted)). Given the Anti-Federalists’ vehement opposition to the Constitution’s other grants of power to the Federal Gov- ernment, this silence is revealing. The ratifiers almost certainly understood the Clause to confer a relatively modest power on Congress—namely, the power to regulate trade with Indian tribes living beyond state borders. And this feature of the Constitution was welcomed by Federal- ists and Anti-Federalists alike due to the considerable interest in expanding trade with such Indian tribes. See, e.g., The Federalist No. 42, at 265 (J. Madison) (praising the Constitution for removing the obstacles that had existed under the Articles of Confederation to federal control over “trade with Indians” (emphasis added)); 3 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 580 (2d ed. 1863) (Adam Stephens, at the Virginia ratifying convention, June 23, 1788, describing the Indian tribes residing near 10 ADOPTIVE COUPLE v. BABY GIRL THOMAS, J., concurring the Mississippi and “the variety of articles which might be obtained to advantage by trading with these people”); The Federalist No. 24, at 158 (A. Hamilton) (arguing that frontier garrisons would “be keys to the trade with the Indian nations”); Brutus, (Letter) X, N. Y. J., Jan. 24, 1788, in 15 The Documentary History of the Ratification of the Constitution 462, 465 (J. Kaminski & G. Saladino eds. 2012) (conceding that there must be a standing army for some purposes, including “trade with Indians”). There is little evidence that the ratifiers of the Constitution under- stood the Indian Commerce Clause to confer anything resembling plenary power over Indian affairs. See Natel- son 247–250. III In light of the original understanding of the Indian Commerce Clause, the constitutional problems that would be created by application of the ICWA here are evident. First, the statute deals with “child custody proceedings,” not “commerce.” It was enacted in response to concerns that “an alarmingly high percentage of Indian families [were] broken up by the removal, often unwar- ranted, of their children from them by nontribal public and private agencies.” The perceived problem was that many Indian children were “placed in non-Indian foster and adoptive homes and institutions.” This problem, however, had nothing to do with commerce. Second, the portions of the ICWA at issue here do not regulate Indian tribes as tribes. Sections 1912(d) and (f ), and apply to all child custody proceedings involv- ing an Indian child, regardless of whether an Indian tribe is involved. This case thus does not directly implicate Congress’ power to “legislate in respect to Indian tribes.” United (emphasis added). Baby Girl was never domiciled on an Indian Reservation, and the Cherokee Nation had no jurisdiction Cite as: 570 U. S. (2013) 11 THOMAS, J., concurring over her. Cf. Mississippi Band of Choctaw Indians v. Holyfield, (holding that the Indian Tribe had exclusive jurisdiction over child custody proceedings, even though the children were born off the reservation, because the children were “domiciled” on the reservation for purposes of the ICWA). Although Birth Father is a registered member of The Cherokee Nation, he did not live on a reservation either. He was, thus, subject to the laws of the State in which he resided (Oklahoma) and of the State where his daughter resided during the custody proceedings (South Carolina). Nothing in the In- dian Commerce Clause permits Congress to enact spe- cial laws applicable to Birth Father merely because of his status as an Indian.3 Because adoption proceedings like this one involve neither “commerce” nor “Indian tribes,” there is simply no constitutional basis for Congress’ assertion of authority over such proceedings. Also, the notion that Congress can direct state courts to apply different rules of evidence and procedure merely because a person of Indian descent is involved raises absurd possibilities. Such plenary power would allow Congress to dictate specific rules of criminal procedure for state-court prosecutions against Indian defendants. Likewise, it would allow Congress to substi- tute federal law for state law when contract disputes involve Indians. But the Constitution does not grant Congress power to override state law whenever that law —————— 3 Petitioners and the guardian ad litem contend that applying the ICWA to child custody proceedings on the basis of race implicates equal protection concerns. See Brief for Petitioners 45 (arguing that the statute would be unconstitutional “if unwed fathers with no preexisting substantive parental rights receive a statutory preference based solely on the Indian child’s race”); Brief for Respondent Guardian Ad Litem 48–49 (same). I need not address this argument because I am satisfied that Congress lacks authority to regulate the child custody proceedings in this case. 12 ADOPTIVE COUPLE v. BABY GIRL THOMAS, J., concurring happens to be applied to Indians. Accordingly, application of the ICWA to these child custody proceedings would be unconstitutional. * * * Because the Court’s plausible interpretation of the relevant sections of the ICWA avoids these constitutional problems, I concur. Cite as: 570 U. S. (2013) 1 BREYER, J., concurring SUPREME COURT OF THE UNITED STATES No. 12–399 ADOPTIVE COUPLE, PETITIONERS v. BABY GIRL, A MINOR CHILD UNDER THE AGE OF FOURTEEN YEARS, ET AL. |
Justice Thomas | concurring | false | Murphy v. National Collegiate Athletic Assn. | 2018-05-14T00:00:00 | null | https://www.courtlistener.com/opinion/4497655/murphy-v-national-collegiate-athletic-assn/ | https://www.courtlistener.com/api/rest/v3/clusters/4497655/ | 2,018 | 2017-022 | 1 | 7 | 2 | I join the Court’s opinion in its entirety. I write sepa-
rately, however, to express my growing discomfort with
our modern severability precedents.
I agree with the Court that the Professional and Ama-
teur Sports Protection Act (PASPA) exceeds Congress’
Article I authority to the extent it prohibits New Jersey
from “authoriz[ing]” or “licens[ing]” sports gambling, 28
U.S. C. §3702(1). Unlike the dissent, I do “doubt” that
Congress can prohibit sports gambling that does not cross
state lines. Post, at 2 (opinion of GINSBURG, J.); see Li-
cense Tax Cases, 5 Wall. 462, 470–471 (1867) (holding that
Congress has “no power” to regulate “the internal com-
merce or domestic trade of the States,” including the
intrastate sale of lottery tickets); United States v. Lopez,
2 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
THOMAS, J., concurring
514 U.S. 549, 587–601 (1995) (THOMAS, J., concurring)
(documenting why the Commerce Clause does not permit
Congress to regulate purely local activities that have a
substantial effect on interstate commerce). But even
assuming the Commerce Clause allows Congress to pro-
hibit intrastate sports gambling “directly,” it “does not
authorize Congress to regulate state governments’ regula-
tion of interstate commerce.” New York v. United States,
505 U.S. 144, 166 (1992). The Necessary and Proper
Clause does not give Congress this power either, as a law
is not “proper” if it “subvert[s] basic principles of federal-
ism and dual sovereignty.” Gonzales v. Raich, 545 U.S. 1,
65 (2005) (THOMAS, J., dissenting). Commandeering the
States, as PASPA does, subverts those principles. See
Printz v. United States, 521 U.S. 898, 923–924 (1997).
Because PASPA is at least partially unconstitutional,
our precedents instruct us to determine “which portions of
the . . . statute we must sever and excise.” United States
v. Booker, 543 U.S. 220, 258 (2005) (emphasis deleted).
The Court must make this severability determination by
asking a counterfactual question: “ ‘Would Congress still
have passed’ the valid sections ‘had it known’ about the
constitutional invalidity of the other portions of the stat-
ute?” Id., at 246 (quoting Denver Area Ed. Telecommuni-
cations Consortium, Inc. v. FCC, 518 U.S. 727, 767 (1996)
(plurality opinion)). I join the Court’s opinion because it
gives the best answer it can to this question, and no party
has asked us to apply a different test. But in a future
case, we should take another look at our severability
precedents.
Those precedents appear to be in tension with traditional
limits on judicial authority. Early American courts did
not have a severability doctrine. See Walsh, Partial Un-
constitutionality, 85 N. Y. U. L. Rev. 738, 769 (2010)
(Walsh). They recognized that the judicial power is, fun-
damentally, the power to render judgments in individual
Cite as: 584 U. S. ____ (2018) 3
THOMAS, J., concurring
cases. See id., at 755; Baude, The Judgment Power, 96
Geo. L. J. 1807, 1815 (2008). Judicial review was a by-
product of that process. See generally P. Hamburger, Law
and Judicial Duty (2008); Prakash & Yoo, The Origins of
Judicial Review, 70 U. Chi. L. Rev. 887 (2003). As Chief
Justice Marshall famously explained, “[i]t is emphatically
the province and duty of the judicial department to say
what the law is” because “[t]hose who apply the rule to
particular cases, must of necessity expound and interpret
that rule.” Marbury v. Madison, 1 Cranch 137, 177 (1803).
If a plaintiff relies on a statute but a defendant argues
that the statute conflicts with the Constitution, then
courts must resolve that dispute and, if they agree with
the defendant, follow the higher law of the Constitution.
See id., at 177–178; The Federalist No. 78, p. 467
(C. Rossiter ed. 1961) (A. Hamilton). Thus, when early
American courts determined that a statute was unconsti-
tutional, they would simply decline to enforce it in the case
before them. See Walsh 755–766. “[T]here was no ‘next
step’ in which courts inquired into whether the legislature
would have preferred no law at all to the constitutional
remainder.” Id., at 777.
Despite this historical practice, the Court’s modern
cases treat the severability doctrine as a “remedy” for
constitutional violations and ask which provisions of the
statute must be “excised.” See, e.g., Ayotte v. Planned
Parenthood of Northern New Eng., 546 U.S. 320, 329
(2006); Booker, supra, at 245; Alaska Airlines, Inc. v.
Brock, 480 U.S. 678, 686 (1987). This language cannot be
taken literally. Invalidating a statute is not a “remedy,”
like an injunction, a declaration, or damages. See Harri-
son, Severability, Remedies, and Constitutional Adjudica-
tion, 83 Geo. Wash. L. Rev. 56, 82–88 (2014) (Harrison).
Remedies “operate with respect to specific parties,” not “on
legal rules in the abstract.” Id., at 85; see also Massachu-
setts v. Mellon, 262 U.S. 447, 488 (1923) (explaining that
4 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
THOMAS, J., concurring
the power “to review and annul acts of Congress” is “little
more than the negative power to disregard an unconstitu-
tional enactment” and that “the court enjoins . . . not the
execution of the statute, but the acts of the official”). And
courts do not have the power to “excise” or “strike down”
statutes. See 39 Op. Atty. Gen. 22, 22–23 (1937) (“The
decisions are practically in accord in holding that the
courts have no power to repeal or abolish a statute”);
Harrison 82 (“[C]ourts do not make [nonseverable] provi-
sions inoperative . . . . Invalidation by courts is a figure of
speech”); Mitchell, The Writ-of-Erasure Fallacy, 104 Va.
L. Rev. (forthcoming 2018) (manuscript, at 4) (“The federal
courts have no authority to erase a duly enacted law from
the statute books”), online at https://papers.ssrn.com/sol3/
papers.cfm?abstract_id=3158038 (as last visited May 11,
2018).
Because courts cannot take a blue pencil to statutes, the
severability doctrine must be an exercise in statutory
interpretation. In other words, the severability doctrine
has courts decide how a statute operates once they con-
clude that part of it cannot be constitutionally enforced.
See Fallon, As-Applied and Facial Challenges and Third-
Party Standing, 113 Harv. L. Rev. 1321, 1333–1334
(2000); Harrison 88. But even under this view, the sever-
ability doctrine is still dubious for at least two reasons.
First, the severability doctrine does not follow basic
principles of statutory interpretation. Instead of requiring
courts to determine what a statute means, the severability
doctrine requires courts to make “a nebulous inquiry into
hypothetical congressional intent.” Booker, supra, at 320,
n. 7 (THOMAS, J., dissenting in part). It requires judges to
determine what Congress would have intended had it
known that part of its statute was unconstitutional.* But
——————
* The first court to engage in this counterfactual exploration of legis-
lative intent was the Massachusetts Supreme Judicial Court in Warren
Cite as: 584 U. S. ____ (2018) 5
THOMAS, J., concurring
it seems unlikely that the enacting Congress had any
intent on this question; Congress typically does not pass
statutes with the expectation that some part will later be
deemed unconstitutional. See Walsh 740–741; Stern,
Separability and Separability Clauses in the Supreme
Court, 51 Harv. L. Rev. 76, 98 (1937) (Stern). Without any
actual evidence of intent, the severability doctrine invites
courts to rely on their own views about what the best
statute would be. See Walsh 752–753; Stern 112–113.
More fundamentally, even if courts could discern Con-
gress’ hypothetical intentions, intentions do not count
unless they are enshrined in a text that makes it through
the constitutional processes of bicameralism and present-
ment. See Wyeth v. Levine, 555 U.S. 555, 586–588 (2009)
(THOMAS, J., concurring in judgment). Because we have
“ ‘a Government of laws, not of men,’ ” we are governed by
“legislated text,” not “legislators’ intentions”—and espe-
cially not legislators’ hypothetical intentions. Zuni Public
School Dist. No. 89 v. Department of Education, 550 U.S.
81, 119 (2007) (Scalia, J., dissenting). Yet hypothetical
intent is exactly what the severability doctrine turns on,
at least when Congress has not expressed its fallback
position in the text.
Second, the severability doctrine often requires courts to
weigh in on statutory provisions that no party has stand-
ing to challenge, bringing courts dangerously close to
issuing advisory opinions. See Stern 77; Lea, Situational
Severability, 103 Va. L. Rev. 735, 788–803 (2017) (Lea). If
one provision of a statute is deemed unconstitutional, the
severability doctrine places every other provision at risk of
——————
v. Mayor and Aldermen of Charlestown, 68 Mass. 84, 99 (1854). This
Court adopted the Warren formulation in the late 19th century, see
Allen v. Louisiana, 103 U.S. 80, 84 (1881), an era when statutory
interpretation privileged Congress’ unexpressed “intent” over the
enacted text, see, e.g., Church of Holy Trinity v. United States, 143
U.S. 457, 472 (1892); United States v. Moore, 95 U.S. 760, 763 (1878).
6 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
THOMAS, J., concurring
being declared nonseverable and thus inoperative; our
precedents do not ask whether the plaintiff has standing
to challenge those other provisions. See National Federa-
tion of Independent Business v. Sebelius, 567 U.S. 519,
696–697 (2012) (joint dissent) (citing, as an example,
Williams v. Standard Oil Co. of La., 278 U.S. 235, 242–
244 (1929)). True, the plaintiff had standing to challenge
the unconstitutional part of the statute. But the severa-
bility doctrine comes into play only after the court has
resolved that issue—typically the only live controversy
between the parties. In every other context, a plaintiff
must demonstrate standing for each part of the statute
that he wants to challenge. See Lea 789, 751, and nn. 79–
80 (citing, as examples, Davis v. Federal Election Comm’n,
554 U.S. 724, 733–734 (2008); DaimlerChrysler Corp. v.
Cuno, 547 U.S. 332, 346, 350–353 (2006)). The severabil-
ity doctrine is thus an unexplained exception to the nor-
mal rules of standing, as well as the separation-of-powers
principles that those rules protect. See Steel Co. v. Citi-
zens for Better Environment, 523 U.S. 83, 101 (1998).
In sum, our modern severability precedents are in ten-
sion with longstanding limits on the judicial power. And,
though no party in this case has asked us to reconsider
these precedents, at some point, it behooves us to do so.
Cite as: 584 U. S. ____ (2018) 1
BREYER, J., concurring
Opinioninofpart and, dissenting
BREYER J. in part
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 16–476 and 16–477
_________________
PHILIP D. MURPHY, GOVERNOR OF NEW
JERSEY, ET AL., PETITIONERS
16–476 v.
NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, ET AL.
NEW JERSEY THOROUGHBRED HORSEMEN’S
ASSOCIATION, INC., PETITIONER
16–477 v.
NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[May 14, 2018]
JUSTICE BREYER, concurring in part and dissenting in
part.
I agree with JUSTICE GINSBURG that 28 U.S. C.
§3702(2) is severable from the challenged portion of
§3702(1). The challenged part of subsection (1) prohibits a
State from “author[izing]” or “licens[ing]” sports gambling
schemes; subsection (2) prohibits individuals from “spon-
sor[ing], operat[ing], advertis[ing], or promot[ing]” sports
gambling schemes “pursuant to the law . . . of a govern-
mental entity.” The first says that a State cannot author-
ize sports gambling schemes under state law; the second
says that (just in case a State finds a way to do so) sports
gambling schemes that a State authorizes are unlawful
under federal law regardless. As JUSTICE GINSBURG
makes clear, the latter section can live comfortably on its
2 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN.
BREYER, J., concurring
Opinioninofpart and, dissenting
BREYER J. in part
own without the first.
Why would Congress enact both these provisions? The
obvious answer is that Congress wanted to “keep sports
gambling from spreading.” S. Rep. No. 102–248, pp. 4–6
(1991). It feared that widespread sports gambling would
“threate[n] to change the nature of sporting events from
wholesome entertainment for all ages to devices for gam-
bling.” Id., at 4. And it may have preferred that state
authorities enforce state law forbidding sports gambling
than require federal authorities to bring civil suits to
enforce federal law forbidding about the same thing.
Alternatively, Congress might have seen subsection (2) as
a backup, called into play if subsection (1)’s requirements,
directed to the States, turned out to be unconstitutional—
which, of course, is just what has happened. Neither of
these objectives is unreasonable.
So read, the two subsections both forbid sports gambling
but §3702(2) applies federal policy directly to individuals
while the challenged part of §3702(1) forces the States to
prohibit sports gambling schemes (thereby shifting the
burden of enforcing federal regulatory policy from the
Federal Government to state governments). Section
3702(2), addressed to individuals, standing alone seeks to
achieve Congress’ objective of halting the spread of sports
gambling schemes by “regulat[ing] interstate commerce
directly.” New York v. United States, 505 U.S. 144, 166
(1992). But the challenged part of subsection (1) seeks the
same end indirectly by “regulat[ing] state governments’
regulation of interstate commerce.” Ibid. And it does so
by addressing the States (not individuals) directly and
telling state legislatures what laws they must (or cannot)
enact. Under our precedent, the first provision (directly
and unconditionally telling States what laws they must
enact) is unconstitutional, but the second (directly telling
individuals what they cannot do) is not. See ibid.
As so interpreted, the statutes would make New Jersey’s
Cite as: 584 U. S. ____ (2018) 3
BREYER, J., concurring
Opinioninofpart and, dissenting
BREYER J. in part
victory here mostly Pyrrhic. But that is because the only
problem with the challenged part of §3702(1) lies in its
means, not its end. Congress has the constitutional power
to prohibit sports gambling schemes, and no party here
argues that there is any constitutional defect in §3702(2)’s
alternative means of doing so.
I consequently join JUSTICE GINSBURG’s dissenting
opinion in part, and all but Part VI–B of the Court’s
opinion.
Cite as: 584 U. S. ____ (2018) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 16–476 and 16–477
_________________
PHILIP D. MURPHY, GOVERNOR OF NEW
JERSEY, ET AL., PETITIONERS
16–476 v.
NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, ET AL.
NEW JERSEY THOROUGHBRED HORSEMEN’S
ASSOCIATION, INC., PETITIONER
16–477 v.
NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, ET AL. | I join the Court’s opinion in its entirety. I write sepa- rately, however, to express my growing discomfort with our modern severability precedents. I agree with the Court that the Professional and Ama- teur Sports Protection Act (PASPA) exceeds Congress’ Article I authority to the extent it prohibits New Jersey from “authoriz[ing]” or “licens[ing]” sports gambling, 28 U.S. C. Unlike the dissent, I do “doubt” that Congress can prohibit sports gambling that does not cross state lines. Post, at 2 (opinion of GINSBURG, J.); see Li- cense Tax Cases, (holding that Congress has “no power” to regulate “the internal com- merce or domestic trade of the States,” including the intrastate sale of lottery tickets); United States v. Lopez, 2 (documenting why the Commerce Clause does not permit Congress to regulate purely local activities that have a substantial effect on interstate commerce). But even assuming the Commerce Clause allows Congress to pro- hibit intrastate sports gambling “directly,” it “does not authorize Congress to regulate state governments’ regula- tion of interstate commerce.” New The Necessary and Proper Clause does not give Congress this power either, as a law is not “proper” if it “subvert[s] basic principles of federal- ism and dual sovereignty.” 65 (THOMAS, J., dissenting). Commandeering the States, as PASPA does, subverts those principles. See Because PASPA is at least partially unconstitutional, our precedents instruct us to determine “which portions of the statute we must sever and excise.” United States v. The Court must make this severability determination by asking a counterfactual question: “ ‘Would Congress still have passed’ the valid sections ‘had it known’ about the constitutional invalidity of the other portions of the stat- ute?” (plurality opinion)). I join the Court’s opinion because it gives the best answer it can to this question, and no party has asked us to apply a different test. But in a future case, we should take another look at our severability precedents. Those precedents appear to be in tension with traditional limits on judicial authority. Early American courts did not have a severability doctrine. See Walsh, Partial Un- constitutionality, 85 N. Y. U. L. Rev. 738, 769 (2010) (Walsh). They recognized that the judicial power is, fun- damentally, the power to render judgments in individual Cite as: 5 U. S. (2018) 3 THOMAS, J., concurring cases. See ; Baude, The Judgment Power, 96 Geo. L. J. 1807, 1815 Judicial review was a by- product of that process. See generally P. Hamburger, Law and Judicial Duty ; Prakash & Yoo, The Origins of Judicial Review, As Chief Justice Marshall famously explained, “[i]t is emphatically the province and duty of the judicial department to say what the law is” because “[t]hose who apply the rule to particular cases, must of necessity expound and interpret that rule.” If a plaintiff relies on a statute but a defendant argues that the statute conflicts with the Constitution, then courts must resolve that dispute and, if they agree with the defendant, follow the higher law of the Constitution. See at –178; The Federalist No. 78, p. 467 (C. Rossiter ed. 1961) (A. Hamilton). Thus, when early American courts determined that a statute was unconsti- tutional, they would simply decline to enforce it in the case before them. See Walsh 755–766. “[T]here was no ‘next step’ in which courts inquired into whether the legislature would have preferred no law at all to the constitutional remainder.” Despite this historical practice, the Court’s modern cases treat the severability doctrine as a “remedy” for constitutional violations and ask which provisions of the statute must be “excised.” See, e.g., ; ; Alaska Airlines, Inc. v. Brock, This language cannot be taken literally. Invalidating a statute is not a “remedy,” like an injunction, a declaration, or damages. See Harri- son, Severability, Remedies, and Constitutional Adjudica- tion, 82–88 (2014) (Harrison). Remedies “operate with respect to specific parties,” not “on legal rules in the abstract.” ; see also Massachu- (explaining that 4 the power “to review and annul acts of Congress” is “little more than the negative power to disregard an unconstitu- tional enactment” and that “the court enjoins not the execution of the statute, but the acts of the official”). And courts do not have the power to “excise” or “strike down” statutes. See 39 Op. Atty. Gen. 22, 22–23 (“The decisions are practically in accord in holding that the courts have no power to repeal or abolish a statute”); Harrison 82 (“[C]ourts do not make [nonseverable] provi- sions inoperative Invalidation by courts is a figure of speech”); Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. (forthcoming 2018) (manuscript, ) (“The federal courts have no authority to erase a duly enacted law from the statute books”), online at https://papers.ssrn.com/sol3/ papers.cfm?abstract_id=3158038 (as last visited May 11, 2018). Because courts cannot take a blue pencil to statutes, the severability doctrine must be an exercise in statutory interpretation. In other words, the severability doctrine has courts decide how a statute operates once they con- clude that part of it cannot be constitutionally enforced. See Fallon, As-Applied and Facial Challenges and Third- Party Standing, 1333–1334 (2000); Harrison 88. But even under this view, the sever- ability doctrine is still dubious for at least two reasons. First, the severability doctrine does not follow basic principles of statutory interpretation. Instead of requiring courts to determine what a statute means, the severability doctrine requires courts to make “a nebulous inquiry into hypothetical congressional intent.” n. 7 (THOMAS, J., dissenting in part). It requires judges to determine what Congress would have intended had it known that part of its statute was unconstitutional.* But —————— * The first court to engage in this counterfactual exploration of legis- lative intent was the Massachusetts Supreme Judicial Court in Warren Cite as: 5 U. S. (2018) 5 THOMAS, J., concurring it seems unlikely that the enacting Congress had any intent on this question; Congress typically does not pass statutes with the expectation that some part will later be deemed unconstitutional. See Walsh 740–741; Stern, Separability and Separability Clauses in the Supreme Court, Without any actual evidence of intent, the severability doctrine invites courts to rely on their own views about what the best statute would be. See Walsh 752–753; Stern 112–113. More fundamentally, even if courts could discern Con- gress’ hypothetical intentions, intentions do not count unless they are enshrined in a text that makes it through the constitutional processes of bicameralism and present- ment. See (THOMAS, J., concurring in judgment). Because we have “ ‘a Government of laws, not of men,’ ” we are governed by “legislated text,” not “legislators’ intentions”—and espe- cially not legislators’ hypothetical intentions. Zuni Public School Dist. No. 89 v. Department of Education, 550 U.S. 81, 119 (2007) (Scalia, J., dissenting). Yet hypothetical intent is exactly what the severability doctrine turns on, at least when Congress has not expressed its fallback position in the text. Second, the severability doctrine often requires courts to weigh in on statutory provisions that no party has stand- ing to challenge, bringing courts dangerously close to issuing advisory opinions. See Stern 77; Lea, Situational Severability, 788–803 (2017) (Lea). If one provision of a statute is deemed unconstitutional, the severability doctrine places every other provision at risk of —————— v. Mayor and Aldermen of Charlestown, This Court adopted the Warren formulation in the late 19th century, see an era when statutory interpretation privileged Congress’ unexpressed “intent” over the enacted text, see, e.g., Church of Holy Trinity v. United States, 143 U.S. 457, 472 (1892); United 6 being declared nonseverable and thus inoperative; our precedents do not ask whether the plaintiff has standing to challenge those other provisions. See National Federa- tion of Independent 696–697 (2012) (joint dissent) (citing, as an example, 242– 244 (1929)). True, the plaintiff had standing to challenge the unconstitutional part of the statute. But the severa- bility doctrine comes into play only after the court has resolved that issue—typically the only live controversy between the parties. In every other context, a plaintiff must demonstrate standing for each part of the statute that he wants to challenge. See Lea 789, 751, and nn. 79– 80 ; DaimlerChrysler Corp. v. Cuno, ). The severabil- ity doctrine is thus an unexplained exception to the nor- mal rules of standing, as well as the separation-of-powers principles that those rules protect. See Steel (19). In sum, our modern severability precedents are in ten- sion with longstanding limits on the judicial power. And, though no party in this case has asked us to reconsider these precedents, at some point, it behooves us to do so. Cite as: 5 U. S. (2018) 1 BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part SUPREME COURT OF THE UNITED STATES Nos. 16–476 and 16–477 PHILIP D. MURPHY, GOVERNOR OF NEW JERSEY, ET AL., PETITIONERS 16–476 v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ET AL. NEW JERSEY THOROUGHBRED HORSEMEN’S ASSOCIATION, INC., PETITIONER 16–477 v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT [May 14, 2018] JUSTICE BREYER, concurring in part and dissenting in part. I agree with JUSTICE GINSBURG that 28 U.S. C. is severable from the challenged portion of The challenged part of subsection (1) prohibits a State from “author[izing]” or “licens[ing]” sports gambling schemes; subsection (2) prohibits individuals from “spon- sor[ing], operat[ing], advertis[ing], or promot[ing]” sports gambling schemes “pursuant to the law of a govern- mental entity.” The first says that a State cannot author- ize sports gambling schemes under state law; the second says that (just in case a State finds a way to do so) sports gambling schemes that a State authorizes are unlawful under federal law regardless. As JUSTICE GINSBURG makes clear, the latter section can live comfortably on its 2 MURPHY v. NATIONAL COLLEGIATE ATHLETIC ASSN. BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part own without the first. Why would Congress enact both these provisions? The obvious answer is that Congress wanted to “keep sports gambling from spreading.” S. Rep. No. 102–248, pp. 4–6 (11). It feared that widespread sports gambling would “threate[n] to change the nature of sporting events from wholesome entertainment for all ages to devices for gam- bling.” And it may have preferred that state authorities enforce state law forbidding sports gambling than require federal authorities to bring civil suits to enforce federal law forbidding about the same thing. Alternatively, Congress might have seen subsection (2) as a backup, called into play if subsection (1)’s requirements, directed to the States, turned out to be unconstitutional— which, of course, is just what has happened. Neither of these objectives is unreasonable. So read, the two subsections both forbid sports gambling but applies federal policy directly to individuals while the challenged part of forces the States to prohibit sports gambling schemes (thereby shifting the burden of enforcing federal regulatory policy from the Federal Government to state governments). Section 3702(2), addressed to individuals, standing alone seeks to achieve Congress’ objective of halting the spread of sports gambling schemes by “regulat[ing] interstate commerce directly.” New But the challenged part of subsection (1) seeks the same end indirectly by “regulat[ing] state governments’ regulation of interstate commerce.” And it does so by addressing the States (not individuals) directly and telling state legislatures what laws they must (or cannot) enact. Under our precedent, the first provision (directly and unconditionally telling States what laws they must enact) is unconstitutional, but the second (directly telling individuals what they cannot do) is not. See As so interpreted, the statutes would make New Jersey’s Cite as: 5 U. S. (2018) 3 BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part victory here mostly Pyrrhic. But that is because the only problem with the challenged part of lies in its means, not its end. Congress has the constitutional power to prohibit sports gambling schemes, and no party here argues that there is any constitutional defect in ’s alternative means of doing so. I consequently join JUSTICE GINSBURG’s dissenting opinion in part, and all but Part VI–B of the Court’s opinion. Cite as: 5 U. S. (2018) 1 GINSBURG, J., dissenting SUPREME COURT OF THE UNITED STATES Nos. 16–476 and 16–477 PHILIP D. MURPHY, GOVERNOR OF NEW JERSEY, ET AL., PETITIONERS 16–476 v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ET AL. NEW JERSEY THOROUGHBRED HORSEMEN’S ASSOCIATION, INC., PETITIONER 16–477 v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ET AL. |
Justice Ginsburg | majority | false | Tellabs, Inc. v. Makor Issues & Rights, Ltd. | 2007-06-21T00:00:00 | null | https://www.courtlistener.com/opinion/145709/tellabs-inc-v-makor-issues-rights-ltd/ | https://www.courtlistener.com/api/rest/v3/clusters/145709/ | 2,007 | 2006-066 | 1 | 8 | 1 | This Court has long recognized that meritorious private actions to enforce federal antifraud securities laws are an essential supplement to criminal prosecutions and civil enforcement actions brought, respectively, by the Department of Justice and the Securities and Exchange Commission (SEC). See, e.g., Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 345, 125 S. Ct. 1627, 161 L. Ed. 2d 577 (2005); J.I. Case Co. v. Borak, 377 U.S. 426, 432, 84 S. Ct. 1555, 12 L. Ed. 2d 423 (1964). Private securities fraud actions, however, if not adequately contained, can be employed abusively to impose substantial costs on companies and individuals whose conduct conforms to the law. See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 81, 126 S. Ct. 1503, 164 L. Ed. 2d 179 (2006). As a check against abusive litigation by private parties, Congress enacted the Private Securities Litigation Reform Act of 1995 (PSLRA), 109 Stat. 737.
Exacting pleading requirements are among the control measures Congress included in the PSLRA. The Act requires plaintiffs to state with particularity both the facts constituting the alleged violation, and the facts evidencing scienter, i.e., the defendant's intention "to deceive, manipulate, or defraud." Ernst & Ernst v. Hochfelder, 425 U.S. 185, 194, and n. 12, 96 S. Ct. 1375, 47 L. Ed. 2d 668 (1976); see 15 U.S.C. § 78u-4(b)(1),(2). This case concerns the latter requirement. As set out in § 21D(b)(2) of the PSLRA, plaintiffs must "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." 15 U.S.C. § 78u-4(b)(2).
Congress left the key term "strong inference" undefined, and Courts of Appeals have divided on its meaning. In the case before us, the Court of Appeals for the Seventh Circuit held that the "strong inference" standard would be met if the complaint "allege[d] facts from which, if true, a reasonable person could infer that the defendant acted with the required intent." 437 F.3d 588, 602 (2006). That formulation, we conclude, does not capture the stricter demand Congress sought to convey in § 21D(b)(2). It does not suffice that a reasonable factfinder plausibly could infer from the complaint's allegations the requisite state of mind. Rather, to determine whether a complaint's scienter allegations can survive threshold inspection for sufficiency, a court governed by § 21D(b)(2) must engage in a comparative evaluation; it must consider, not only inferences urged by the plaintiff, as the Seventh Circuit did, but also competing inferences rationally drawn from the facts alleged. An inference of fraudulent intent may be plausible, yet less cogent than other, nonculpable explanations for the defendant's conduct. To qualify as "strong" within the intendment of § 21D(b)(2), we hold, an inference of scienter must be *2505 more than merely plausible or reasonable it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent.
I
Petitioner Tellabs, Inc., manufactures specialized equipment used in fiber optic networks. During the time period relevant to this case, petitioner Richard Notebaert was Tellabs' chief executive officer and president. Respondents (Shareholders) are persons who purchased Tellabs stock between December 11, 2000, and June 19, 2001. They accuse Tellabs and Notebaert (as well as several other Tellabs executives) of engaging in a scheme to deceive the investing public about the true value of Tellabs' stock. See 437 F.3d, at 591; App. 94-98.[1]
Beginning on December 11, 2000, the Shareholders allege, Notebaert (and by imputation Tellabs) "falsely reassured public investors, in a series of statements ... that Tellabs was continuing to enjoy strong demand for its products and earning record revenues," when, in fact, Notebaert knew the opposite was true. Id., at 94-95, 98. From December 2000 until the spring of 2001, the Shareholders claim, Notebaert knowingly misled the public in four ways. 437 F.3d, at 596. First, he made statements indicating that demand for Tellabs' flagship networking device, the TITAN 5500, was continuing to grow, when in fact demand for that product was waning. Id., at 596, 597. Second, Notebaert made statements indicating that the TITAN 6500, Tellabs' next-generation networking device, was available for delivery, and that demand for that product was strong and growing, when in truth the product was not ready for delivery and demand was weak. Id., at 596, 597-598. Third, he falsely represented Tellabs' financial results for the fourth quarter of 2000 (and, in connection with those results, condoned the practice of "channel stuffing," under which Tellabs flooded its customers with unwanted products). Id., at 596, 598. Fourth, Notebaert made a series of overstated revenue projections, when demand for the TITAN 5500 was drying up and production of the TITAN 6500 was behind schedule. Id., at 596, 598-599. Based on Notebaert's sunny assessments, the Shareholders contend, market analysts recommended that investors buy Tellabs' stock. See id., at 592.
The first public glimmer that business was not so healthy came in March 2001 when Tellabs modestly reduced its first quarter sales projections. Ibid. In the next months, Tellabs made progressively more cautious statements about its projected sales. On June 19, 2001, the last day of the class period, Tellabs disclosed that demand for the TITAN 5500 had significantly dropped. Id., at 593. Simultaneously, the company substantially lowered its revenue projections for the second quarter of 2001. The next day, the price of Tellabs stock, which had reached a high of $67 during the period, plunged to a low of $15.87. Ibid.
On December 3, 2002, the Shareholders filed a class action in the District Court for the Northern District of Illinois. Ibid. Their complaint stated, inter alia, that Tellabs and Notebaert had engaged in securities fraud in violation of § 10(b) of the Securities Exchange Act of 1934, 48 Stat. *2506 891, 15 U.S.C. § 78j(b), and SEC Rule 10b-5, 17 CFR § 240.10b-5 (2006), also that Notebaert was a "controlling person" under § 20(a) of the 1934 Act, 15 U.S.C. § 78t(a), and therefore derivatively liable for the company's fraudulent acts. See App. 98-101, 167-171. Tellabs moved to dismiss the complaint on the ground that the Shareholders had failed to plead their case with the particularity the PSLRA requires. The District Court agreed, and therefore dismissed the complaint without prejudice. App. to Pet. for Cert. 80a-117a; see Johnson v. Tellabs, Inc., 303 F. Supp. 2d 941, 945 (N.D.Ill.2004).
The Shareholders then amended their complaint, adding references to 27 confidential sources and making further, more specific, allegations concerning Notebaert's mental state. See 437 F.3d, at 594; App. 91-93, 152-160. The District Court again dismissed, this time with prejudice. 303 F.Supp.2d, at 971. The Shareholders had sufficiently pleaded that Notebaert's statements were misleading, the court determined, id., at 955-961, but they had insufficiently alleged that he acted with scienter, id., at 954-955, 961-969.
The Court of Appeals for the Seventh Circuit reversed in relevant part. 437 F.3d, at 591. Like the District Court, the Court of Appeals found that the Shareholders had pleaded the misleading character of Notebaert's statements with sufficient particularity. Id., at 595-600. Unlike the District Court, however, the Seventh Circuit concluded that the Shareholders had sufficiently alleged that Notebaert acted with the requisite state of mind. Id., at 603-605.
The Court of Appeals recognized that the PSLRA "unequivocally raise[d] the bar for pleading scienter" by requiring plaintiffs to "plea[d] sufficient facts to create a strong inference of scienter." Id., at 601 (internal quotation marks omitted). In evaluating whether that pleading standard is met, the Seventh Circuit said, "courts [should] examine all of the allegations in the complaint and then ... decide whether collectively they establish such an inference." Ibid. "[W]e will allow the complaint to survive," the court next and critically stated, "if it alleges facts from which, if true, a reasonable person could infer that the defendant acted with the required intent .... If a reasonable person could not draw such an inference from the alleged facts, the defendants are entitled to dismissal." Id., at 602.
In adopting its standard for the survival of a complaint, the Seventh Circuit explicitly rejected a stiffer standard adopted by the Sixth Circuit, i.e., that "plaintiffs are entitled only to the most plausible of competing inferences." Id., at 601, 602 (quoting Fidel v. Farley, 392 F.3d 220, 227 (C.A.6 2004)). The Sixth Circuit's standard, the court observed, because it involved an assessment of competing inferences, "could potentially infringe upon plaintiffs' Seventh Amendment rights." 437 F.3d, at 602. We granted certiorari to resolve the disagreement among the Circuits on whether, and to what extent, a court must consider competing inferences in determining whether a securities fraud complaint gives rise to a "strong inference" of scienter.[2] 549 U.S. ___, 127 S. Ct. 853, 166 L. Ed. 2d 681 (2007).
*2507 II
Section 10(b) of the Securities Exchange Act of 1934 forbids the "use or employ, in connection with the purchase or sale of any security ..., [of] any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [SEC] may prescribe as necessary or appropriate in the public interest or for the protection of investors." 15 U.S.C. § 78j(b). SEC Rule 10b-5 implements § 10(b) by declaring it unlawful:
"(a) To employ any device, scheme, or artifice to defraud,
"(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made ... not misleading, or
"(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security." 17 CFR § 240.10b-5.
Section 10(b), this Court has implied from the statute's text and purpose, affords a right of action to purchasers or sellers of securities injured by its violation. See, e.g., Dura Pharmaceuticals, 544 U.S., at 341, 125 S. Ct. 1627. See also id., at 345, 125 S. Ct. 1627 ("The securities statutes seek to maintain public confidence in the marketplace .... by deterring fraud, in part, through the availability of private securities fraud actions."); Borak, 377 U.S., at 432, 84 S. Ct. 1555 (private securities fraud actions provide "a most effective weapon in the enforcement" of securities laws and are "a necessary supplement to Commission action"). To establish liability under § 10(b) and Rule 10b-5, a private plaintiff must prove that the defendant acted with scienter, "a mental state embracing intent to deceive, manipulate, or defraud." Ernst & Ernst, 425 U.S., at 193-194, and n. 12, 96 S. Ct. 1375.[3]
In an ordinary civil action, the Federal Rules of Civil Procedure require only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2). Although the rule encourages brevity, the complaint must say enough to give the defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Dura Pharmaceuticals, 544 U.S., at 346, 125 S. Ct. 1627 (internal quotation marks omitted). Prior to the enactment of the PSLRA, the sufficiency of a complaint for securities fraud was governed not by Rule 8, but by the heightened pleading standard set forth in Rule 9(b). See Greenstone v. Cambex Corp., 975 F.2d 22, 25 (C.A.1 1992) (Breyer, J.) (collecting cases). Rule 9(b) applies to "all averments of fraud or mistake"; it requires that "the circumstances constituting fraud ... be stated with particularity" but provides that "[m]alice, intent, knowledge, and other condition of mind of a person, may be averred generally."
Courts of Appeals diverged on the character of the Rule 9(b) inquiry in § 10(b) cases: Could securities fraud plaintiffs allege the requisite mental state "simply by stating that scienter existed," In re GlenFed, Inc. Securities Litigation, 42 F.3d *2508 1541, 1546-1547 (C.A.9 1994) (en banc), or were they required to allege with particularity facts giving rise to an inference of scienter? Compare id., at 1546 ("We are not permitted to add new requirements to Rule 9(b) simply because we like the effects of doing so."), with, e.g., Greenstone, 975 F.2d, at 25 (were the law to permit a securities fraud complaint simply to allege scienter without supporting facts, "a complaint could evade too easily the `particularity' requirement in Rule 9(b)'s first sentence"). Circuits requiring plaintiffs to allege specific facts indicating scienter expressed that requirement variously. See 5A C. Wright & A. Miller, Federal Practice and Procedure § 1301.1, pp. 300-302 (3d ed.2004) (hereinafter Wright & Miller). The Second Circuit's formulation was the most stringent. Securities fraud plaintiffs in that Circuit were required to "specifically plead those [facts] which they assert give rise to a strong inference that the defendants had" the requisite state of mind. Ross v. A.H. Robins Co., 607 F.2d 545, 558 (1979) (emphasis added). The "strong inference" formulation was appropriate, the Second Circuit said, to ward off allegations of "fraud by hindsight." See, e.g., Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1129 (1994) (quoting Denny v. Barber, 576 F.2d 465, 470 (C.A.2 1978) (Friendly, J.)).
Setting a uniform pleading standard for § 10(b) actions was among Congress' objectives when it enacted the PSLRA. Designed to curb perceived abuses of the § 10(b) private action"nuisance filings, targeting of deep-pocket defendants, vexatious discovery requests and manipulation by class action lawyers," Dabit, 547 U.S., at 81, 126 S. Ct. 1503 (quoting H.R. Conf. Rep. No. 104-369, p. 31 (1995), U.S.Code Cong. & Admin.News 1995, p. 730 (hereinafter H.R. Conf. Rep.))the PSLRA installed both substantive and procedural controls.[4] Notably, Congress prescribed new procedures for the appointment of lead plaintiffs and lead counsel. This innovation aimed to increase the likelihood that institutional investorsparties more likely to balance the interests of the class with the long-term interests of the company would serve as lead plaintiffs. See id., at 33-34; S.Rep. No. 104-98, p. 11 (1995), U.S.Code Cong. & Admin.News 1995, pp. 679, 690. Congress also "limit[ed] recoverable damages and attorney's fees, provide[d] a `safe harbor' for forward-looking statements, ... mandate[d] imposition of sanctions for frivolous litigation, and authorize[d] a stay of discovery pending resolution of any motion to dismiss." Dabit, 547 U.S., at 81, 126 S. Ct. 1503. And in § 21D(b) of the PSLRA, Congress "impose[d] heightened pleading requirements in actions brought pursuant to § 10(b) and Rule 10b-5." Ibid.
Under the PSLRA's heightened pleading instructions, any private securities complaint alleging that the defendant made a false or misleading statement must: (1) "specify each statement alleged to have been misleading [and] the reason or reasons why the statement is misleading," 15 U.S.C. § 78u-4(b)(1); and (2) "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind," § 78u-4(b)(2). In the instant case, as earlier stated, see supra, at 2506, the District Court and the Seventh Circuit agreed that the Shareholders met the first of the two requirements: The complaint sufficiently *2509 specified Notebaert's alleged misleading statements and the reasons why the statements were misleading. 303 F.Supp.2d, at 955-961, 437 F.3d, at 596-600. But those courts disagreed on whether the Shareholders, as required by § 21D(b)(2), "state[d] with particularity facts giving rise to a strong inference that [Notebaert] acted with [scienter]," § 78u-4(b)(2). See supra, at 2506.
The "strong inference" standard "unequivocally raise[d] the bar for pleading scienter," 437 F.3d, at 601, and signaled Congress' purpose to promote greater uniformity among the Circuits, see H.R. Conf. Rep., p. 41. But "Congress did not ... throw much light on what facts ... suffice to create [a strong] inference," or on what "degree of imagination courts can use in divining whether" the requisite inference exists. 437 F.3d, at 601. While adopting the Second Circuit's "strong inference" standard, Congress did not codify that Circuit's case law interpreting the standard. See § 78u-4(b)(2). See also Brief for United States as Amicus Curiae 18. With no clear guide from Congress other than its "inten[tion] to strengthen existing pleading requirements," H.R. Conf. Rep., p. 41, Courts of Appeals have diverged again, this time in construing the term "strong inference." Among the uncertainties, should courts consider competing inferences in determining whether an inference of scienter is "strong"? See 437 F.3d, at 601-602 (collecting cases). Our task is to prescribe a workable construction of the "strong inference" standard, a reading geared to the PSLRA's twin goals: to curb frivolous, lawyer-driven litigation, while preserving investors' ability to recover on meritorious claims.
III
A
We establish the following prescriptions: First, faced with a Rule 12(b)(6) motion to dismiss a § 10(b) action, courts must, as with any motion to dismiss for failure to plead a claim on which relief can be granted, accept all factual allegations in the complaint as true. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164, 113 S. Ct. 1160, 122 L. Ed. 2d 517 (1993). On this point, the parties agree. See Reply Brief 8; Brief for Respondents 26; Brief for United States as Amicus Curiae 8, 20, 21.
Second, courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice. See 5B Wright & Miller § 1357 (3d ed.2004 and Supp.2007). The inquiry, as several Courts of Appeals have recognized, is whether all of the facts alleged, taken collectively, give rise to a strong inference of scienter, not whether any individual allegation, scrutinized in isolation, meets that standard. See, e.g., Abrams v. Baker Hughes Inc., 292 F.3d 424, 431 (C.A.5 2002); Gompper v. VISX, Inc., 298 F.3d 893, 897 (C.A.9 2002). See also Brief for United States as Amicus Curiae 25.
Third, in determining whether the pleaded facts give rise to a "strong" inference of scienter, the court must take into account plausible opposing inferences. The Seventh Circuit expressly declined to engage in such a comparative inquiry. A complaint could survive, that court said, as long as it "alleges facts from which, if true, a reasonable person could infer that the defendant acted with the required intent"; in other words, only "[i]f a reasonable person could not draw such an inference from *2510 the alleged facts" would the defendant prevail on a motion to dismiss. 437 F.3d, at 602. But in § 21D(b)(2), Congress did not merely require plaintiffs to "provide a factual basis for [their] scienter allegations," ibid. (quoting In re Cerner Corp. Securities Litigation, 425 F.3d 1079, 1084, 1085 (C.A.8 2005)), i.e., to allege facts from which an inference of scienter rationally could be drawn. Instead, Congress required plaintiffs to plead with particularity facts that give rise to a "strong"i.e., a powerful or cogentinference. See American Heritage Dictionary 1717 (4th ed.2000) (defining "strong" as "[p]ersuasive, effective, and cogent"); 16 Oxford English Dictionary 949 (2d ed.1989) (defining "strong" as "[p]owerful to demonstrate or convince" (definition 16b)); cf. 7 id., at 924 (defining "inference" as "a conclusion [drawn] from known or assumed facts or statements"; "reasoning from something known or assumed to something else which follows from it").
The strength of an inference cannot be decided in a vacuum. The inquiry is inherently comparative: How likely is it that one conclusion, as compared to others, follows from the underlying facts? To determine whether the plaintiff has alleged facts that give rise to the requisite "strong inference" of scienter, a court must consider plausible nonculpable explanations for the defendant's conduct, as well as inferences favoring the plaintiff. The inference that the defendant acted with scienter need not be irrefutable, i.e., of the "smoking-gun" genre, or even the "most plausible of competing inferences," Fidel, 392 F.3d, at 227 (quoting Helwig v. Vencor, Inc., 251 F.3d 540, 553 (C.A.6 2001) (en banc)). Recall in this regard that § 21D(b)'s pleading requirements are but one constraint among many the PSLRA installed to screen out frivolous suits, while allowing meritorious actions to move forward. See supra, at 2508, and n. 4. Yet the inference of scienter must be more than merely "reasonable" or "permissible"it must be cogent and compelling, thus strong in light of other explanations. A complaint will survive, we hold, only if a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged.[5]
*2511 B
Tellabs contends that when competing inferences are considered, Notebaert's evident lack of pecuniary motive will be dispositive. The Shareholders, Tellabs stresses, did not allege that Notebaert sold any shares during the class period. See Brief for Petitioners 50 ("The absence of any allegations of motive color all the other allegations putatively giving rise to an inference of scienter."). While it is true that motive can be a relevant consideration, and personal financial gain may weigh heavily in favor of a scienter inference, we agree with the Seventh Circuit that the absence of a motive allegation is not fatal. See 437 F.3d, at 601. As earlier stated, supra, at 2509-2510, allegations must be considered collectively; the significance that can be ascribed to an allegation of motive, or lack thereof, depends on the entirety of the complaint.
Tellabs also maintains that several of the Shareholders' allegations are too vague or ambiguous to contribute to a strong inference of scienter. For example, the Shareholders alleged that Tellabs flooded its customers with unwanted products, a practice known as "channel stuffing." See supra, at 2505. But they failed, Tellabs argues, to specify whether the channel stuffing allegedly known to Notebaert was the illegitimate kind (e.g., writing orders for products customers had not requested) or the legitimate kind (e.g., offering customers discounts as an incentive to buy). Brief for Petitioners 44-46; Reply Brief 8. See also id., at 8-9 (complaint lacks precise dates of reports critical to distinguish legitimate conduct from culpable conduct). But see 437 F.3d, at 598, 603-604 (pointing to multiple particulars alleged by the Shareholders, including specifications as to timing). We agree that omissions and ambiguities count against inferring scienter, for plaintiffs must "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." § 78u-4(b)(2). We reiterate, however, that the court's job is not to scrutinize each allegation in isolation but to assess all the allegations holistically. See supra, at 2509-2510; 437 F.3d, at 601. In sum, the reviewing court must ask: When the allegations are accepted as true and taken collectively, would a reasonable person deem the inference of scienter at least as strong as any opposing inference?[6]
IV
Accounting for its construction of § 21D(b)(2), the Seventh Circuit explained that the court "th[ought] it wis[e] to adopt an approach that [could not] be misunderstood as a usurpation of the jury's role." 437 F.3d, at 602. In our view, the Seventh Circuit's concern was undue.[7] A court's *2512 comparative assessment of plausible inferences, while constantly assuming the plaintiff's allegations to be true, we think it plain, does not impinge upon the Seventh Amendment right to jury trial.[8]
Congress, as creator of federal statutory claims, has power to prescribe what must be pleaded to state the claim, just as it has power to determine what must be proved to prevail on the merits. It is the federal lawmaker's prerogative, therefore, to allow, disallow, or shape the contours of including the pleading and proof requirements for § 10(b) private actions. No decision of this Court questions that authority in general, or suggests, in particular, that the Seventh Amendment inhibits Congress from establishing whatever pleading requirements it finds appropriate for federal statutory claims. Cf. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-513, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002); Leatherman, 507 U.S., at 168, 113 S. Ct. 1160 (both recognizing that heightened pleading requirements can be established by Federal Rule, citing Fed. Rule Civ. Proc. 9(b), which requires that fraud or mistake be pleaded with particularity).[9]
Our decision in Fidelity & Deposit Co. of Md. v. United States, 187 U.S. 315, 23 S. Ct. 120, 47 L. Ed. 194 (1902), is instructive. That case concerned a rule adopted by the Supreme Court of the District of Columbia in 1879 pursuant to rulemaking power delegated by Congress. The rule required defendants, in certain contract actions, to file an affidavit "specifically stating ..., in precise and distinct terms, the grounds of his defen[s]e." Id., at 318, 23 S. Ct. 120 (internal quotation marks omitted). The defendant's affidavit was found insufficient, and judgment was entered for the plaintiff, whose declaration and supporting affidavit had been found satisfactory. Ibid. This Court upheld the District's rule against the contention that it violated the Seventh Amendment. Id., at 320, 23 S. Ct. 120. Just as the purpose of § 21D(b) is to screen out frivolous complaints, the purpose of the prescription at issue in Fidelity & Deposit Co. was to "preserve the courts from frivolous defen[s]es," ibid. Explaining why the Seventh Amendment was not implicated, this Court said that the heightened pleading rule simply "prescribes the means of making an issue," and that, when "[t]he issue [was] made as prescribed, the right of trial by jury accrues." Ibid.; accord Ex parte Peterson, 253 U.S. 300, 310, 40 S. Ct. 543, 64 L. Ed. 919 (1920) (Brandeis, J.) (citing Fidelity & Deposit Co., and reiterating: "It does not infringe the constitutional right to a trial by jury [in a civil case], to require, with a view to formulating the issues, an oath by each party to the facts relied upon."). See also Walker v. New Mexico & Southern Pacific R. Co., 165 *2513 U.S. 593, 596, 17 S. Ct. 421, 41 L. Ed. 837 (1897) (Seventh Amendment "does not attempt to regulate matters of pleading").
In the instant case, provided that the Shareholders have satisfied the congressionally "prescribe[d] ... means of making an issue," Fidelity & Deposit Co., 187 U.S., at 320, 23 S. Ct. 120, the case will fall within the jury's authority to assess the credibility of witnesses, resolve any genuine issues of fact, and make the ultimate determination whether Notebaert and, by imputation, Tellabs acted with scienter. We emphasize, as well, that under our construction of the "strong inference" standard, a plaintiff is not forced to plead more than she would be required to prove at trial. A plaintiff alleging fraud in a § 10(b) action, we hold today, must plead facts rendering an inference of scienter at least as likely as any plausible opposing inference. At trial, she must then prove her case by a "preponderance of the evidence." Stated otherwise, she must demonstrate that it is more likely than not that the defendant acted with scienter. See Herman & MacLean v. Huddleston, 459 U.S. 375, 390, 103 S. Ct. 683, 74 L. Ed. 2d 548 (1983).
* * *
While we reject the Seventh Circuit's approach to § 21D(b)(2), we do not decide whether, under the standard we have described, see supra, at 2509-2511, the Shareholders' allegations warrant "a strong inference that [Notebaert and Tellabs] acted with the required state of mind," 15 U.S.C. § 78u-4(b)(2). Neither the District Court nor the Court of Appeals had the opportunity to consider the matter in light of the prescriptions we announce today. We therefore vacate the Seventh Circuit's judgment so that the case may be reexamined in accord with our construction of § 21D(b)(2).
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice SCALIA, concurring in the judgment. | This Court has long recognized that meritorious private actions to enforce federal antifraud securities laws are an essential supplement to criminal prosecutions and civil enforcement actions brought, respectively, by the Department of Justice and the Securities and Exchange Commission (SEC). See, e.g., Dura ; J.I. Case Private securities fraud actions, however, if not adequately contained, can be employed abusively to impose substantial costs on companies and individuals whose conduct conforms to the law. See Merrill Lynch, Pierce, Fenner & Smith As a check against abusive litigation by private parties, Congress enacted the Private Securities Litigation Reform Act of 1995 (PSLRA), Exacting pleading requirements are among the control measures Congress included in the PSLRA. The Act requires plaintiffs to state with particularity both the facts constituting the alleged violation, and the facts evidencing scienter, i.e., the defendant's intention "to deceive, manipulate, or defraud." & ; see 15 U.S.C. 78u-4(b)(1),(2). This case concerns the latter requirement. As set out in 21D(b)(2) of the PSLRA, plaintiffs must "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." 15 U.S.C. 78u-4(b)(2). Congress left the key term "strong inference" undefined, and Courts of Appeals have divided on its meaning. In the case before us, the Court of Appeals for the Seventh Circuit held that the "strong inference" standard would be met if the complaint "allege[d] facts from which, if true, a reasonable person could infer that the defendant acted with the required intent." That formulation, we conclude, does not capture the stricter demand Congress sought to convey in 21D(b)(2). It does not suffice that a reasonable factfinder plausibly could infer from the complaint's allegations the requisite state of mind. Rather, to determine whether a complaint's scienter allegations can survive threshold inspection for sufficiency, a court governed by 21D(b)(2) must engage in a comparative evaluation; it must consider, not only inferences urged by the plaintiff, as the Seventh Circuit did, but also competing inferences rationally drawn from the facts alleged. An inference of fraudulent intent may be plausible, yet less cogent than other, nonculpable explanations for the defendant's conduct. To qualify as "strong" within the intendment of 21D(b)(2), we hold, an inference of scienter must be *05 more than merely plausible or reasonable it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent. I Petitioner Tellabs, Inc., manufactures specialized equipment used in fiber optic networks. During the time period relevant to this case, petitioner Richard Notebaert was Tellabs' chief executive officer and president. Respondents (Shareholders) are persons who purchased Tellabs stock between December 11, 2000, and June 19, They accuse Tellabs and Notebaert (as well as several other Tellabs executives) of engaging in a scheme to deceive the investing public about the true value of Tellabs' stock. See ; App. 94-98.[1] Beginning on December 11, 2000, the Shareholders allege, Notebaert (and by imputation Tellabs) "falsely reassured public investors, in a series of statements that Tellabs was continuing to enjoy strong demand for its products and earning record revenues," when, in fact, Notebaert knew the opposite was true. From December 2000 until the spring of the Shareholders claim, Notebaert knowingly misled the public in four First, he made statements indicating that demand for Tellabs' flagship networking device, the TITAN 5500, was continuing to grow, when in fact demand for that product was waning. Second, Notebaert made statements indicating that the TITAN 6500, Tellabs' next-generation networking device, was available for delivery, and that demand for that product was strong and growing, when in truth the product was not ready for delivery and demand was weak. -598. Third, he falsely represented Tellabs' financial results for the fourth quarter of 2000 (and, in connection with those results, condoned the practice of "channel stuffing," under which Tellabs flooded its customers with unwanted products). Fourth, Notebaert made a series of over revenue projections, when demand for the TITAN 5500 was drying up and production of the TITAN 6500 was behind schedule. -599. Based on Notebaert's sunny assessments, the Shareholders contend, market analysts recommended that investors buy Tellabs' stock. See The first public glimmer that business was not so healthy came in March when Tellabs modestly reduced its first quarter sales projections. In the next months, Tellabs made progressively more cautious statements about its projected sales. On June 19, the last day of the class period, Tellabs disclosed that demand for the TITAN 5500 had significantly dropped. Simultaneously, the company substantially lowered its revenue projections for the second quarter of The next day, the price of Tellabs stock, which had reached a high of $67 during the period, plunged to a low of $15.87. On December 3, the Shareholders filed a class action in the District Court for the Northern District of Illinois. Their complaint inter alia, that Tellabs and Notebaert had engaged in securities fraud in violation of 10(b) of the Securities Exchange Act of 1934, 48 Stat. *06 891, 15 U.S.C. 78j(b), and SEC Rule 10b-5, 17 CFR 240.10b-5 also that Notebaert was a "controlling person" under 20(a) of the 1934 Act, 15 U.S.C. 78t(a), and therefore derivatively liable for the company's fraudulent acts. See App. 98-101, 167-171. Tellabs moved to dismiss the complaint on the ground that the Shareholders had failed to plead their case with the particularity the PSLRA requires. The District Court agreed, and therefore dismissed the complaint without App. to Pet. for Cert. 80a-117a; see The Shareholders then amended their complaint, adding references to 27 confidential sources and making further, more specific, allegations concerning Notebaert's mental state. See ; App. 91-93, 152-160. The District Court again dismissed, this time with The Shareholders had sufficiently pleaded that Notebaert's statements were misleading, the court determined, but they had insufficiently alleged that he acted with scienter, The Court of Appeals for the Seventh Circuit reversed in relevant Like the District Court, the Court of Appeals found that the Shareholders had pleaded the misleading character of Notebaert's statements with sufficient particularity. Unlike the District Court, however, the Seventh Circuit concluded that the Shareholders had sufficiently alleged that Notebaert acted with the requisite state of mind. The Court of Appeals recognized that the PSLRA "unequivocally raise[d] the bar for pleading scienter" by requiring plaintiffs to "plea[d] sufficient facts to create a strong inference of scienter." In evaluating whether that pleading standard is met, the Seventh Circuit said, "courts [should] examine all of the allegations in the complaint and then decide whether collectively they establish such an inference." "[W]e will allow the complaint to survive," the court next and critically "if it alleges facts from which, if true, a reasonable person could infer that the defendant acted with the required intent If a reasonable person could not draw such an inference from the alleged facts, the defendants are entitled to dismissal." at In adopting its standard for the survival of a complaint, the Seventh Circuit explicitly rejected a stiffer standard adopted by the Sixth Circuit, i.e., that "plaintiffs are entitled only to the most plausible of competing inferences." ). The Sixth Circuit's standard, the court observed, because it involved an assessment of competing inferences, "could potentially infringe upon plaintiffs' Seventh Amendment rights." 437 F.3d, at We granted certiorari to resolve the disagreement among the Circuits on whether, and to what extent, a court must consider competing inferences in determining whether a securities fraud complaint gives rise to a "strong inference" of scienter.[2] 549 U.S. 166 L. Ed. 2d 6 *07 II Section 10(b) of the Securities Exchange Act of 1934 forbids the "use or employ, in connection with the purchase or sale of any security, [of] any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [SEC] may prescribe as necessary or appropriate in the public interest or for the protection of investors." 15 U.S.C. 78j(b). SEC Rule 10b-5 implements 10(b) by declaring it unlawful: "(a) To employ any device, scheme, or artifice to defraud, "(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made not misleading, or "(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security." 17 CFR 240.10b-5. Section 10(b), this Court has implied from the statute's text and purpose, affords a right of action to purchasers or sellers of securities injured by its violation. See, e.g., Dura See also at ("The securities statutes seek to maintain public confidence in the marketplace by deterring fraud, in part, through the availability of private securities fraud actions."); 377 U.S., at (private securities fraud actions provide "a most effective weapon in the enforcement" of securities laws and are "a necessary supplement to Commission action"). To establish liability under 10(b) and Rule 10b-5, a private plaintiff must prove that the defendant acted with scienter, "a mental state embracing intent to deceive, manipulate, or defraud." & -, and n. 12,[3] In an ordinary civil action, the Federal Rules of Civil Procedure require only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2). Although the rule encourages brevity, the complaint must say enough to give the defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Dura Prior to the enactment of the PSLRA, the sufficiency of a complaint for securities fraud was governed not by Rule 8, but by the heightened pleading standard set forth in Rule 9(b). See Rule 9(b) applies to "all averments of fraud or mistake"; it requires that "the circumstances constituting fraud be with particularity" but provides that "[m]alice, intent, knowledge, and other condition of mind of a person, may be averred generally." Courts of Appeals diverged on the character of the Rule 9(b) inquiry in 10(b) cases: Could securities fraud plaintiffs allege the requisite mental state "simply by stating that scienter existed," In re GlenFed, Inc. Securities Litigation, 42 F.3d *08 1541, 1546-1547 or were they required to allege with particularity facts giving rise to an inference of scienter? Compare with, e.g., 975 F.2d, at Circuits requiring plaintiffs to allege specific facts indicating scienter expressed that requirement variously. See 5A C. Wright & A. Miller, Federal Practice and Procedure 1301.1, pp. 300-302 (hereinafter Wright & Miller). The Second Circuit's formulation was the most stringent. Securities fraud plaintiffs in that Circuit were required to "specifically plead those [facts] which they assert give rise to a strong inference that the defendants had" the requisite state of mind. The "strong inference" formulation was appropriate, the Second Circuit said, to ward off allegations of "fraud by hindsight." See, e.g., F.3d 1124, Setting a uniform pleading standard for 10(b) actions was among Congress' objectives when it enacted the PSLRA. Designed to curb perceived abuses of the 10(b) private action"nuisance filings, targeting of deep-pocket defendants, vexatious discovery requests and manipulation by class action lawyers," 547 U.S., at (quoting H.R. Conf. Rep. No. 104-369, p. 31 (1995), U.S.Code Cong. & Admin.News 1995, p. 730 (hereinafter H.R. Conf. Rep.))the PSLRA installed both substantive and procedural controls.[4] Notably, Congress prescribed new procedures for the appointment of lead plaintiffs and lead counsel. This innovation aimed to increase the likelihood that institutional investorsparties more likely to balance the interests of the class with the long-term interests of the company would serve as lead plaintiffs. See ; S.Rep. No. 104-98, p. 11 (1995), U.S.Code Cong. & Admin.News 1995, pp. 679, 690. Congress also "limit[ed] recoverable damages and attorney's fees, provide[d] a `safe harbor' for forward-looking statements, mandate[d] imposition of sanctions for frivolous litigation, and authorize[d] a stay of discovery pending resolution of any motion to dismiss." 547 U.S., at And in 21D(b) of the PSLRA, Congress "impose[d] heightened pleading requirements in actions brought pursuant to 10(b) and Rule 10b-5." Under the PSLRA's heightened pleading instructions, any private securities complaint alleging that the defendant made a false or misleading statement must: (1) "specify each statement alleged to have been misleading [and] the reason or reasons why the statement is misleading," 15 U.S.C. 78u-4(b)(1); and (2) "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind," 78u-4(b)(2). In the instant case, as earlier see at 06, the District Court and the Seventh Circuit agreed that the Shareholders met the first of the two requirements: The complaint sufficiently *09 specified Notebaert's alleged misleading statements and the reasons why the statements were 303 F.Supp.2d, -600. But those courts disagreed on whether the Shareholders, as required by 21D(b)(2), "state[d] with particularity facts giving rise to a strong inference that [Notebaert] acted with [scienter]," 78u-4(b)(2). See at 06. The "strong inference" standard "unequivocally raise[d] the bar for pleading scienter," 437 F.3d, and signaled Congress' purpose to promote greater uniformity among the Circuits, see H.R. Conf. Rep., p. 41. But "Congress did not throw much light on what facts suffice to create [a strong] inference," or on what "degree of imagination courts can use in divining whether" the requisite inference 437 F.3d, While adopting the Second Circuit's "strong inference" standard, Congress did not codify that Circuit's case law interpreting the standard. See 78u-4(b)(2). See also Brief for United States as Amicus Curiae 18. With no clear guide from Congress other than its "inten[tion] to strengthen existing pleading requirements," H.R. Conf. Rep., p. 41, Courts of Appeals have diverged again, this time in construing the term "strong inference." Among the uncertainties, should courts consider competing inferences in determining whether an inference of scienter is "strong"? See 437 F.3d, - Our task is to prescribe a workable construction of the "strong inference" standard, a reading geared to the PSLRA's twin goals: to curb frivolous, lawyer-driven litigation, while preserving investors' ability to recover on meritorious claims. III A We establish the following prescriptions: First, faced with a Rule 12(b)(6) motion to dismiss a 10(b) action, courts must, as with any motion to dismiss for failure to plead a claim on which relief can be granted, accept all factual allegations in the complaint as true. See On this point, the parties agree. See Reply Brief 8; Brief for Respondents 26; Brief for United States as Amicus Curiae 8, 20, 21. Second, courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice. See 5B Wright & Miller 1357 The inquiry, as several Courts of Appeals have recognized, is whether all of the facts alleged, taken collectively, give rise to a strong inference of scienter, not whether any individual allegation, scrutinized in isolation, meets that standard. See, e.g., ; See also Brief for United States as Amicus Curiae Third, in determining whether the pleaded facts give rise to a "strong" inference of scienter, the court must take into account plausible opposing inferences. The Seventh Circuit expressly declined to engage in such a comparative inquiry. A complaint could survive, that court said, as long as it "alleges facts from which, if true, a reasonable person could infer that the defendant acted with the required intent"; in other words, only "[i]f a reasonable person could not draw such an inference from *10 the alleged facts" would the defendant prevail on a motion to dismiss. 437 F.3d, at But in 21D(b)(2), Congress did not merely require plaintiffs to "provide a factual basis for [their] scienter allegations," ), i.e., to allege facts from which an inference of scienter rationally could be drawn. Instead, Congress required plaintiffs to plead with particularity facts that give rise to a "strong"i.e., a powerful or cogentinference. See American Heritage Dictionary 1717 (4th ed.2000) (defining "strong" as "[p]ersuasive, effective, and cogent"); 16 Oxford English Dictionary 949 (2d ed.1989) (defining "strong" as "[p]owerful to demonstrate or convince" (definition 16b)); cf. 7 The strength of an inference cannot be decided in a vacuum. The inquiry is inherently comparative: How likely is it that one conclusion, as compared to others, follows from the underlying facts? To determine whether the plaintiff has alleged facts that give rise to the requisite "strong inference" of scienter, a court must consider plausible nonculpable explanations for the defendant's conduct, as well as inferences favoring the plaintiff. The inference that the defendant acted with scienter need not be irrefutable, i.e., of the "smoking-gun" genre, or even the "most plausible of competing inferences," Fidel, 392 F.3d, at ). Recall in this regard that 21D(b)'s pleading requirements are but one constraint among many the PSLRA installed to screen out frivolous suits, while allowing meritorious actions to move forward. See at 08, and n. 4. Yet the inference of scienter must be more than merely "reasonable" or "permissible"it must be cogent and compelling, thus strong in light of other explanations. A complaint will survive, we hold, only if a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged.[5] *11 B Tellabs contends that when competing inferences are considered, Notebaert's evident lack of pecuniary motive will be dispositive. The Shareholders, Tellabs stresses, did not allege that Notebaert sold any shares during the class period. See Brief for Petitioners 50 ("The absence of any allegations of motive color all the other allegations putatively giving rise to an inference of scienter."). While it is true that motive can be a relevant consideration, and personal financial gain may weigh heavily in favor of a scienter inference, we agree with the Seventh Circuit that the absence of a motive allegation is not fatal. See 437 F.3d, As earlier at 09-10, allegations must be considered collectively; the significance that can be ascribed to an allegation of motive, or lack thereof, depends on the entirety of the complaint. Tellabs also maintains that several of the Shareholders' allegations are too vague or ambiguous to contribute to a strong inference of scienter. For example, the Shareholders alleged that Tellabs flooded its customers with unwanted products, a practice known as "channel stuffing." See at 05. But they failed, Tellabs argues, to specify whether the channel stuffing allegedly known to Notebaert was the illegitimate kind (e.g., writing orders for products customers had not requested) or the legitimate kind (e.g., offering customers discounts as an incentive to buy). Brief for Petitioners 44-46; Reply Brief 8. See also But see 603-604 We agree that omissions and ambiguities count against inferring scienter, for plaintiffs must "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." 78u-4(b)(2). We reiterate, however, that the court's job is not to scrutinize each allegation in isolation but to assess all the allegations holistically. See at 09-10; 437 F.3d, In sum, the reviewing court must ask: When the allegations are accepted as true and taken collectively, would a reasonable person deem the inference of scienter at least as strong as any opposing inference?[6] IV Accounting for its construction of 21D(b)(2), the Seventh Circuit explained that the court "th[ought] it wis[e] to adopt an approach that [could not] be misunderstood as a usurpation of the jury's role." 437 F.3d, at In our view, the Seventh Circuit's concern was undue.[7] A court's *12 comparative assessment of plausible inferences, while constantly assuming the plaintiff's allegations to be true, we think it plain, does not impinge upon the Seventh Amendment right to jury trial.[8] Congress, as creator of federal statutory claims, has power to prescribe what must be pleaded to state the claim, just as it has power to determine what must be proved to prevail on the merits. It is the federal lawmaker's prerogative, therefore, to allow, disallow, or shape the contours of including the pleading and proof requirements for 10(b) private actions. No decision of this Court questions that authority in general, or suggests, in particular, that the Seventh Amendment inhibits Congress from establishing whatever pleading requirements it finds appropriate for federal statutory claims. Cf. ; (both recognizing that heightened pleading requirements can be established by Federal Rule, citing Fed. Rule Civ. Proc. 9(b), which requires that fraud or mistake be pleaded with particularity).[9] Our decision in Fidelity & Deposit of 47 L. Ed. is instructive. That case concerned a rule adopted by the Supreme Court of the District of Columbia in 1879 pursuant to rulemaking power delegated by Congress. The rule required defendants, in certain contract actions, to file an affidavit "specifically stating, in precise and distinct terms, the grounds of his defen[s]e." The defendant's affidavit was found insufficient, and judgment was entered for the plaintiff, whose declaration and supporting affidavit had been found satisfactory. This Court upheld the District's rule against the contention that it violated the Seventh Amendment. Just as the purpose of 21D(b) is to screen out frivolous complaints, the purpose of the prescription at issue in Fidelity & Deposit was to "preserve the courts from frivolous defen[s]es," Explaining why the Seventh Amendment was not implicated, this Court said that the heightened pleading rule simply "prescribes the means of making an issue," and that, when "[t]he issue [was] made as prescribed, the right of trial by jury accrues." ; accord Ex parte Peterson, 3 U.S. 300, (citing Fidelity & Deposit and reiterating: "It does not infringe the constitutional right to a trial by jury [in a civil case], to require, with a view to formulating the issues, an oath by each party to the facts relied upon."). See also 13 U.S. 593, (1) In the instant case, provided that the Shareholders have satisfied the congressionally "prescribe[d] means of making an issue," Fidelity & Deposit 187 U.S., the case will fall within the jury's authority to assess the credibility of witnesses, resolve any genuine issues of fact, and make the ultimate determination whether Notebaert and, by imputation, Tellabs acted with scienter. We emphasize, as well, that under our construction of the "strong inference" standard, a plaintiff is not forced to plead more than she would be required to prove at trial. A plaintiff alleging fraud in a 10(b) action, we hold today, must plead facts rendering an inference of scienter at least as likely as any plausible opposing inference. At trial, she must then prove her case by a "preponderance of the evidence." Stated otherwise, she must demonstrate that it is more likely than not that the defendant acted with scienter. See Herman & * * * While we reject the Seventh Circuit's approach to 21D(b)(2), we do not decide whether, under the standard we have described, see at 09-11, the Shareholders' allegations warrant "a strong inference that [Notebaert and Tellabs] acted with the required state of mind," 15 U.S.C. 78u-4(b)(2). Neither the District Court nor the Court of Appeals had the opportunity to consider the matter in light of the prescriptions we announce today. We therefore vacate the Seventh Circuit's judgment so that the case may be reexamined in accord with our construction of 21D(b)(2). The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice SCALIA, concurring in the judgment. |
Justice Stevens | majority | false | Sheridan v. United States | 1988-06-24T00:00:00 | null | https://www.courtlistener.com/opinion/112131/sheridan-v-united-states/ | https://www.courtlistener.com/api/rest/v3/clusters/112131/ | 1,988 | 1987-141 | 1 | 6 | 3 | On February 6, 1982, an obviously intoxicated off-duty serviceman named Carr fired several rifle shots into an automobile being driven by petitioners on a public street near the *394 Bethesda Naval Hospital. Petitioners brought suit against the United States alleging that their injuries were caused by the Government's negligence in allowing Carr to leave the hospital with a loaded rifle in his possession. The District Court dismissed the action and the Court of Appeals affirmed on the ground that the claim is barred by the intentional tort exception to the Federal Tort Claims Act (FTCA or Act). The question we granted certiorari to decide is whether petitioners' claim is one "arising out of" an assault or battery within the meaning of 28 U.S. C. § 2680(h).[1]
I
When it granted the Government's motion to dismiss, the District Court accepted petitioners' version of the facts as alleged *395 in their complaint and as supplemented by discovery. That version may be briefly stated. After finishing his shift as a naval medical aide at the hospital, Carr consumed a large quantity of wine, rum, and other alcoholic beverages. He then packed some of his belongings, including a rifle and ammunition, into a uniform bag and left his quarters. Some time later, three naval corpsmen found him lying face down in a drunken stupor on the concrete floor of a hospital building. They attempted to take him to the emergency room, but he broke away, grabbing the bag and revealing the barrel of the rifle. At the sight of the rifle barrel, the corpsmen fled. They neither took further action to subdue Carr, nor alerted the appropriate authorities that he was heavily intoxicated and brandishing a weapon. Later that evening, Carr fired the shots that caused physical injury to one of the petitioners and property damage to their car.
The District Court began its legal analysis by noting the general rule that the Government is not liable for the intentional torts of its employees. The petitioners argued that the general rule was inapplicable because they were relying, not on the fact that Carr was a Government employee when he assaulted them, but rather on the negligence of other Government employees who failed to prevent his use of the rifle. The District Court assumed that the alleged negligence would have made the defendant liable under the law of Maryland, and also assumed that the Government would have been liable if Carr had not been a Government employee. Nevertheless, although stating that it was "sympathetic" to petitioners' claim, App. to Pet. for Cert. 26a, it concluded that Fourth Circuit precedents required dismissal because Carr "happens to be a government employee rather than a private citizen," id., at 23a.
The Court of Appeals affirmed. 823 F.2d 820 (CA4 1987). Like the District Court, it concluded that the Circuit's prior decisions in Hughes v. United States, 662 F.2d 219 (CA4 1981) (per curiam), and Thigpen v. United States, 800 F. 2d *396 393 (CA4 1986),[2] foreclosed the following argument advanced by petitioners:
"The Sheridans also argue that Carr's status as an enlisted naval man and, therefore, a government employee, should [be] irrelevant to the issue of the government's immunity vel non from liability for negligently failing to prevent the injury. They correctly assert that the shooting at the Sheridans' vehicle was not connected with Carr's job responsibility or duties as a government employee. The Sheridans further assert that if Carr had not been a government employee, a claim would undoubtedly lie against the government and § 2680(h) would be inapplicable. See Rogers v. United States, 397 F.2d 12 (4th Cir. 1968) (holding § 2680(h) inapplicable where probationer alleged that negligence by United States marshal allowed non-government employee to assault and torture probationer). They contend it is anomalous to deny their claim simply because the corpsmen were negligent in the handling of a government employee *397 rather than a private citizen." 823 F.2d, at 822 (footnotes omitted).
In dissent, Chief Judge Winter argued that cases involving alleged negligence in hiring or supervising Government employees are not applicable to a situation in which the basis for the Government's alleged liability has nothing to do with the assailant's employment status. He wrote:
"As the majority opinion concedes . . . , Hughes and Thigpen, as well as the other cases relied upon by the majority . . . , are all cases where the purported government negligence was premised solely on claims of negligent hiring and/or supervision. The same was true in United States v. Shearer, [473 U.S. 52 (1985)]. Such claims are essentially grounded in the doctrine of respondeat superior. In these cases, the government's liability arises, if at all, only because of the employment relationship. If the assailant were not a federal employee, there would be no independent basis for a suit against the government. It is in this situation that an allegation of government negligence can legitimately be seen as an effort to `circumvent' the § 2680(h) bar; it is just this situation where government liability is possible only because of the fortuity that the assailant happens to receive federal paychecks that § 2680(h) was designed to preclude. See Shearer, [473 U. S., at 54-57]; Hughes, 514 F. Supp. at 668, 669-70; Panella v. United States, 216 F.2d 622, 624 (2 Cir. 1954).
"On the other hand, where government liability is independent of the assailant's employment status, it is possible to discern two distinct torts: the intentional tort (assault and battery) and the government negligence that precipitated it. Where no reliance is placed on negligent supervision or respondeat superior principles, the cause of action against the government cannot really be said to `arise out of' the assault and battery; rather it is *398 based on the government's breach of a separate legal duty." Id., at 824 (footnote omitted).
The difference between the majority and the dissent in this case is reflected in conflicting decisions among the Circuits as well.[3] We therefore granted certiorari to resolve this important conflict. 484 U.S. 1024 (1988).
II
The FTCA gives federal district courts jurisdiction over claims against the United States for money damages "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S. C. § 1346(b). However, among other limitations, the Act also provides that this broad grant of jurisdiction "shall not apply to . . . [a]ny claim arising out of assault, battery" or other specified intentional torts. 28 U.S. C. § 2680(h).
The words "any claim arising out of" an assault or battery are unquestionably broad enough to bar all claims based entirely on an assault or battery. The import of these words is less clear, however, when they are applied to a claim arising out of two tortious acts, one of which is an assault or battery and the other of which is a mere act of negligence. Nonetheless, it is both settled and undisputed that in at least some situations the fact that an injury was directly caused by an assault or battery will not preclude liability against the Government for negligently allowing the assault to occur. Thus, *399 in United States v. Muniz, 374 U.S. 150 (1963), we held that a prisoner who was assaulted by other inmates could recover damages from the United States because prison officials were negligent in failing to prevent the assault that caused his injury.[4]
Two quite different theories might explain why Muniz' claim did not "arise out of" the assault that caused his injuries. First, it might be assumed that since he alleged an independent basis for tort liability namely, the negligence of the prison officials the claim did not arise solely, or even predominantly, out of the assault. Rather, the attention of the trier of fact is focused on the Government's negligent act or omission; the intentional commission is simply considered as part of the causal link leading to the injury. Under this view, the assailant's individual involvement would not give rise to Government liability, but antecedent negligence by Government agents could, provided of course that similar negligent conduct would support recovery under the law of the State where the incident occurred. See Note, Section 2680(h) of the Federal Tort Claims Act: Government Liability for the Negligent Failure to Prevent an Assault and Battery by a Federal Employee, 69 Geo. L. J. 803, 822-825 (1981) (advocating this view and collecting cases).
*400 In response to this theory, the Government argues that the "arising out of" language must be read broadly and that the Sheridans' negligence claim is accordingly barred, for in the absence of Carr's assault, there would be no claim. We need not resolve this dispute, however, because even accepting the Government's contention that when an intentional tort is a sine qua non of recovery the action "arises out of" that tort, we conclude that the exception does not bar recovery in this case. We thus rely exclusively on the second theory, which makes clear that the intentional tort exception is simply inapplicable to torts that fall outside the scope of § 1346(b)'s general waiver.
This second explanation for the Muniz holding, which is narrower but not necessarily inconsistent with the first, adopts Judge (later Justice) Harlan's reasoning in Panella v. United States, 216 F.2d 622 (CA2 1954). In that case, as in Muniz, a prisoner claimed that an assault by another inmate had been caused by the negligence of federal employees. After recognizing that the "immunity against claims arising out of assault and battery can literally be read to apply to assaults committed by persons other than government employees," id., at 624, his opinion concluded that § 2680(h) must be read against the rest of the Act. The exception should therefore be construed to apply only to claims that would otherwise be authorized by the basic waiver of sovereign immunity. Since an assault by a person who was not employed by the Government could not provide the basis for a claim under the FTCA, the exception could not apply to such an assault; rather, the exception only applies in cases arising out of assaults by federal employees.
In describing the coverage of the FTCA, Judge Harlan emphasized the statutory language that was critical to his analysis. As he explained, the Act covers actions for personal injuries "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment . . . (Italics supplied)." *401 Id., at 623. We need only move the emphasis to the next phrase "while acting within the scope of his office or employment" to apply his analysis to the assault and battery committed by the off-duty, inebriated enlisted man in this case. If nothing more was involved here than the conduct of Carr at the time he shot at petitioners, there would be no basis for imposing liability on the Government. The tortious conduct of an off-duty serviceman, not acting within the scope of his office or employment, does not in itself give rise to Government liability whether that conduct is intentional or merely negligent.
As alleged in this case, however, the negligence of other Government employees who allowed a foreseeable assault and battery to occur may furnish a basis for Government liability that is entirely independent of Carr's employment status. By voluntarily adopting regulations that prohibit the possession of firearms on the naval base and that require all personnel to report the presence of any such firearm,[5] and by further voluntarily undertaking to provide care to a person who was visibly drunk and visibly armed, the Government assumed responsibility to "perform [its] `good Samaritan' task in a careful manner." Indian Towing Co. v. United States, 350 U.S. 61, 65 (1955). The District Court and the Court of Appeals both assumed that petitioners' version of the facts would support recovery under Maryland law on a negligence theory if the naval hospital had been owned and operated by a private person. Although the Government now disputes this assumption, it is not our practice to re-examine a question of state law of that kind or, without good reason, to pass upon it in the first instance.[6] See Cort v. *402 Ash, 422 U.S. 66, 73, n. 6 (1975). On this assumption, it seems perfectly clear that the mere fact that Carr happened to be an off-duty federal employee should not provide a basis for protecting the Government from liability that would attach if Carr had been an unemployed civilian patient or visitor in the hospital. Indeed, in a case in which the employment status of the assailant has nothing to do with the basis for imposing liability on the Government, it would seem perverse to exonerate the Government because of the happenstance that Carr was on a federal payroll.[7]
*403 In a case of this kind,[8] the fact that Carr's behavior is characterized as an intentional assault rather than a negligent act is also quite irrelevant. If the Government has a duty to prevent a foreseeably dangerous individual from wandering about unattended, it would be odd to assume that Congress intended a breach of that duty to give rise to liability when the dangerous human instrument was merely negligent but not when he or she was malicious. In fact, the human characteristics of the dangerous instrument are also beside the point. For the theory of liability in this case is analogous to cases in which a person assumes control of a vicious animal, or perhaps an explosive device. Cf. Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928). Because neither Carr's employment status nor his state of mind has any bearing on the basis for petitioners' claim for money damages, the intentional tort exception to the FTCA is not applicable in this case.
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. | On February 6, 1982, an obviously intoxicated off-duty serviceman named Carr fired several rifle shots into an automobile being driven by petitioners on a public street near the *394 Bethesda Naval Hospital. Petitioners brought suit against the United States alleging that their injuries were caused by the Government's negligence in allowing Carr to leave the hospital with a loaded rifle in his possession. The District Court dismissed the action and the Court of Appeals affirmed on the ground that the claim is barred by the intentional tort exception to the Federal Tort Claims Act (FTCA or Act). The question we granted certiorari to decide is whether petitioners' claim is one "arising out of" an assault or battery within the meaning of 28 U.S. C. 2680(h).[1] I When it granted the Government's motion to dismiss, the District Court accepted petitioners' version of the facts as alleged *395 in their complaint and as supplemented by discovery. That version may be briefly stated. After finishing his shift as a naval medical aide at the hospital, Carr consumed a large quantity of wine, rum, and other alcoholic beverages. He then packed some of his belongings, including a rifle and ammunition, into a uniform bag and left his quarters. Some time later, three naval corpsmen found him lying face down in a drunken stupor on the concrete floor of a hospital building. They attempted to take him to the emergency room, but he broke away, grabbing the bag and revealing the barrel of the rifle. At the sight of the rifle barrel, the corpsmen fled. They neither took further action to subdue Carr, nor alerted the appropriate authorities that he was heavily intoxicated and brandishing a weapon. Later that evening, Carr fired the shots that caused physical injury to one of the petitioners and property damage to their car. The District Court began its legal analysis by noting the general rule that the Government is not liable for the intentional torts of its employees. The petitioners argued that the general rule was inapplicable because they were relying, not on the fact that Carr was a Government employee when he assaulted them, but rather on the negligence of other Government employees who failed to prevent his use of the rifle. The District Court assumed that the alleged negligence would have made the defendant liable under the law of Maryland, and also assumed that the Government would have been liable if Carr had not been a Government employee. Nevertheless, although stating that it was "sympathetic" to petitioners' claim, App. to Pet. for Cert. 26a, it concluded that Fourth Circuit precedents required dismissal because Carr "happens to be a government employee rather than a private citizen," at 23a. The Court of Appeals affirmed. Like the District Court, it concluded that the Circuit's prior decisions in and Thigpen v. United States, 800 F. 2d *396 393 (CA4 1986),[2] foreclosed the following argument advanced by petitioners: "The Sheridans also argue that Carr's status as an enlisted naval man and, therefore, a government employee, should [be] irrelevant to the issue of the government's immunity vel non from liability for negligently failing to prevent the injury. They correctly assert that the shooting at the Sheridans' vehicle was not connected with Carr's job responsibility or duties as a government employee. The Sheridans further assert that if Carr had not been a government employee, a claim would undoubtedly lie against the government and 2680(h) would be inapplicable. See (holding 2680(h) inapplicable where probationer alleged that negligence by United States marshal allowed non-government employee to assault and torture probationer). They contend it is anomalous to deny their claim simply because the corpsmen were negligent in the handling of a government employee *397 rather than a private citizen." In dissent, Chief Judge Winter argued that cases involving alleged negligence in hiring or supervising Government employees are not applicable to a situation in which the basis for the Government's alleged liability has nothing to do with the assailant's employment status. He wrote: "As the majority opinion concedes and Thigpen, as well as the other cases relied upon by the majority are all cases where the purported government negligence was premised solely on claims of negligent hiring and/or supervision. The same was true in United ]. Such claims are essentially grounded in the doctrine of respondeat superior. In these cases, the government's liability arises, if at all, only because of the employment relationship. If the assailant were not a federal employee, there would be no independent basis for a suit against the government. It is in this situation that an allegation of government negligence can legitimately be seen as an effort to `circumvent' the 2680(h) bar; it is just this situation where government liability is possible only because of the fortuity that the assailant happens to receive federal paychecks that 2680(h) was designed to preclude. See Shearer, [-57]; 669-70; "On the other hand, where government liability is independent of the assailant's employment status, it is possible to discern two distinct torts: the intentional tort (assault and battery) and the government negligence that precipitated it. Where no reliance is placed on negligent supervision or respondeat superior principles, the cause of action against the government cannot really be said to `arise out of' the assault and battery; rather it is *398 based on the government's breach of a separate legal duty." The difference between the majority and the dissent in this case is reflected in conflicting decisions among the Circuits as well.[3] We therefore granted certiorari to resolve this important conflict. II The FTCA gives federal district courts jurisdiction over claims against the United States for money damages "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S. C. 1346(b). However, among other limitations, the Act also provides that this broad grant of jurisdiction "shall not apply to [a]ny claim arising out of assault, battery" or other specified intentional torts. 28 U.S. C. 2680(h). The words "any claim arising out of" an assault or battery are unquestionably broad enough to bar all claims based entirely on an assault or battery. The import of these words is less clear, however, when they are applied to a claim arising out of two tortious acts, one of which is an assault or battery and the other of which is a mere act of negligence. Nonetheless, it is both settled and undisputed that in at least some situations the fact that an injury was directly caused by an assault or battery will not preclude liability against the Government for negligently allowing the assault to occur. Thus, *399 in United we held that a prisoner who was assaulted by other inmates could recover damages from the United States because prison officials were negligent in failing to prevent the assault that caused his injury.[4] Two quite different theories might explain why Muniz' claim did not "arise out of" the assault that caused his injuries. First, it might be assumed that since he alleged an independent basis for tort liability namely, the negligence of the prison officials the claim did not arise solely, or even predominantly, out of the assault. Rather, the attention of the trier of fact is focused on the Government's negligent act or omission; the intentional commission is simply considered as part of the causal link leading to the injury. Under this view, the assailant's individual involvement would not give rise to Government liability, but antecedent negligence by Government agents could, provided of course that similar negligent conduct would support recovery under the law of the State where the incident occurred. See Note, Section 2680(h) of the Federal Tort Claims Act: Government Liability for the Negligent Failure to Prevent an Assault and Battery by a Federal Employee, 69 Geo. L. J. 803, 822-825 (advocating this view and collecting cases). *400 In response to this theory, the Government argues that the "arising out of" language must be read broadly and that the Sheridans' negligence claim is accordingly barred, for in the absence of Carr's assault, there would be no claim. We need not resolve this dispute, however, because even accepting the Government's contention that when an intentional tort is a sine qua non of recovery the action "arises out of" that tort, we conclude that the exception does not bar recovery in this case. We thus rely exclusively on the second theory, which makes clear that the intentional tort exception is simply inapplicable to torts that fall outside the scope of 1346(b)'s general waiver. This second explanation for the Muniz holding, which is narrower but not necessarily inconsistent with the first, adopts Judge (later Justice) Harlan's reasoning in In that case, as in Muniz, a prisoner claimed that an assault by another inmate had been caused by the negligence of federal employees. After recognizing that the "immunity against claims arising out of assault and battery can literally be read to apply to assaults committed by persons other than government employees," at his opinion concluded that 2680(h) must be read against the rest of the Act. The exception should therefore be construed to apply only to claims that would otherwise be authorized by the basic waiver of sovereign immunity. Since an assault by a person who was not employed by the Government could not provide the basis for a claim under the FTCA, the exception could not apply to such an assault; rather, the exception only applies in cases arising out of assaults by federal employees. In describing the coverage of the FTCA, Judge Harlan emphasized the statutory language that was critical to his analysis. As he explained, the Act covers actions for personal injuries "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment (Italics supplied)." *401 We need only move the emphasis to the next phrase "while acting within the scope of his office or employment" to apply his analysis to the assault and battery committed by the off-duty, inebriated enlisted man in this case. If nothing more was involved here than the conduct of Carr at the time he shot at petitioners, there would be no basis for imposing liability on the Government. The tortious conduct of an off-duty serviceman, not acting within the scope of his office or employment, does not in itself give rise to Government liability whether that conduct is intentional or merely negligent. As alleged in this case, however, the negligence of other Government employees who allowed a foreseeable assault and battery to occur may furnish a basis for Government liability that is entirely independent of Carr's employment status. By voluntarily adopting regulations that prohibit the possession of firearms on the naval base and that require all personnel to report the presence of any such firearm,[5] and by further voluntarily undertaking to provide care to a person who was visibly drunk and visibly armed, the Government assumed responsibility to "perform [its] `good Samaritan' task in a careful manner." Indian Towing The District Court and the Court of Appeals both assumed that petitioners' version of the facts would support recovery under Maryland law on a negligence theory if the naval hospital had been owned and operated by a private person. Although the Government now disputes this assumption, it is not our practice to re-examine a question of state law of that kind or, without good reason, to pass upon it in the first instance.[6] See On this assumption, it seems perfectly clear that the mere fact that Carr happened to be an off-duty federal employee should not provide a basis for protecting the Government from liability that would attach if Carr had been an unemployed civilian patient or visitor in the hospital. Indeed, in a case in which the employment status of the assailant has nothing to do with the basis for imposing liability on the Government, it would seem perverse to exonerate the Government because of the happenstance that Carr was on a federal payroll.[7] *403 In a case of this kind,[8] the fact that Carr's behavior is characterized as an intentional assault rather than a negligent act is also quite irrelevant. If the Government has a duty to prevent a foreseeably dangerous individual from wandering about unattended, it would be odd to assume that Congress intended a breach of that duty to give rise to liability when the dangerous human instrument was merely negligent but not when he or she was malicious. In fact, the human characteristics of the dangerous instrument are also beside the point. For the theory of liability in this case is analogous to cases in which a person assumes control of a vicious animal, or perhaps an explosive device. Cf. Because neither Carr's employment status nor his state of mind has any bearing on the basis for petitioners' claim for money damages, the intentional tort exception to the FTCA is not applicable in this case. 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 Burger | concurring | false | Wardair Canada Inc. v. Florida Dept. of Revenue | 1986-06-18T00:00:00 | null | https://www.courtlistener.com/opinion/111709/wardair-canada-inc-v-florida-dept-of-revenue/ | https://www.courtlistener.com/api/rest/v3/clusters/111709/ | 1,986 | 1985-115 | 1 | 8 | 1 | The Court acknowledges in its discussion in Part II concerning the scope of the Federal Aviation Act that "not only is there no indication that Congress wished to preclude state sales taxation of airline fuel, but, to the contrary, the Act expressly permits States to impose such taxes." Ante, at 6. That being so I see no reason for the discussion in Part III.
While 49 U.S. C. App. § 1513(a) describes a number of state taxes which are prohibited, § 1513(b) expressly permits state "sales or use taxes on the sale of goods or services." The fuel tax challenged here is plainly a "sales or use ta[x] on the sale of goods" within the language of § 1513(b).
Remarkably, the Court nevertheless refuses to "rely on the existence of this section to answer the Commerce Clause issue raised here" because it believes it is "plausible that Congress never considered whether States should be permitted to impose sales taxes on foreign, as opposed to domestic, carriers." Ante, at 7 (emphasis added). Accordingly, the Court continues with an extended discussion of "the so-called dormant Commerce Clause," which applies to cases involving *14 areas where "the Federal Government has not affirmatively acted." Ibid. The plain language of § 1513(b) demonstrates, however, that there is nothing "dormant" here.
The conclusion the Court reaches in Part II is illuminated by the Court's curious failure to even mention any of the extensive legislative history or this Court's recent precedent concerning the enactment of § 1513, which followed our decision in Evansville-Vanderburgh Airport Authority Dist. v. Delta Airlines, Inc., 405 U.S. 707 (1972). In that case the Court upheld a $1-per-passenger "head tax" on all passengers boarding airplanes at the Evansville airport, after rejecting a Commerce Clause attack because the tax did not discriminate between interstate and intrastate commerce.
Congress reacted immediately to our decision by holding hearings on local taxation of air transportation. See Hearings on S. 2397 et al. before the Subcommittee on Aviation of the Senate Committee on Commerce, 92d Cong., 2d Sess., 129-198 (1972) (hereafter Senate Hearings); Hearings on H. R. 2337 et al. before the Subcommittee on Transportation and Aeronautics of the House Committee on Interstate and Foreign Commerce, 92d Cong., 2d Sess. (1972) (hereafter House Hearings). The result of these hearings was the enactment of § 7(a) of the Airport Development Acceleration Act of 1973, see Pub. L. 93-44, § 7(a), 87 Stat. 90, which added § 1113 to the Federal Aviation Act, and which is now codified, as amended, at 49 U.S. C. App. § 1513.
We subsequently addressed the scope of § 1513(a)'s prohibition when confronted with Hawaii's state tax on the gross income of airlines operating within that State. See Aloha Airlines, Inc. v. Director of Taxation, 464 U.S. 7 (1983). Reviewing the legislative history, the Court pointed out that § 1513 was enacted out of congressional concern that "the proliferation of local taxes burdened interstate air transportation." Id., at 9 (citing S. Rep. No. 93-12, pp. 17, 20-21 (1973), and H. R. Rep. No. 93-157, pp. 4-5 (1973)). We concluded unanimously that Hawaii's tax was expressly pre-empted *15 by the plain language of § 1513(a), 464 U.S., at 11, emphasizing that
"when a federal statute unambiguously forbids the States to impose a particular kind of tax on an industry affecting interstate commerce, courts need not look beyond the plain language of the federal statute to determine whether a state statute that imposes such a tax is pre-empted." Id., at 12 (footnote omitted).
In the course of our discussion of § 1513(a) we addressed the Hawaii Supreme Court's "professed confusion over the `paradox' between § 1513(a)'s prohibition on certain state taxes on air transportation and § 1513(b)'s reservation of the States' primary sources of revenue, such as property taxes, net income taxes, franchise taxes, and sales or use taxes." Id., at 12, n. 6. Our resolution of this "paradox" is enlightening:
"We find no paradox between § 1513(a) and § 1513(b). Section 1513(a) pre-empts a limited number of state taxes, including gross receipts taxes imposed on the sale of air transportation or the carriage of persons traveling in air commerce. Section 1513(b) clarifies Congress' view that the States are still free to impose on airlines and air carriers `taxes other than those enumerated in subsection (a),' such as property taxes, net income taxes, and franchise taxes. While neither the statute nor its legislative history explains exactly why Congress chose to distinguish between gross receipts taxes imposed on airlines and the taxes reserved in § 1513(b), the statute is quite clear that Congress chose to make the distinction, and the courts are obliged to honor this congressional choice." Ibid.
Careful review of the legislative history indicates that it is not entirely silent as to why Congress chose to make this particular distinction. The Senate's first proposal to *16 limit state taxation would have prohibited any state tax direct or indirect on air transportation. S. 3611, 92d Cong., 2d Sess. (1972); see also H. R. 2337, 92d Cong., 1st Sess. (1971) (similar prohibition). The States, however, complained loudly at the hearings that this sweeping provision would prohibit even unobjectionable taxes such as landing fees, fuel taxes, and sales taxes on food provided to airline passengers. E. g., House Hearings, at 91 (statement of John A. Nammack, Executive Vice President, National Association of State Aviation Officials). This broad interpretation was supported by officials from the Civil Aeronautics Board and the Federal Aviation Administration, who objected to any such broad prohibition because it would deprive local governments of funds necessary for maintenance of airports. Senate Hearings, at 138 (statement of Whitney Gillilland, Vice Chairman, CAB); id., at 140-141 (statement of Ronald W. Pulling, Acting Associate Administrator for Plans, FAA). In reply, Members of Congress assured these officials that the prohibition was intended to apply only to "head taxes" and the like, and that some clarification of the bill's intent would be in order. E. g., id., at 138, 151, 157 (statement of Sen. Cannon). See also House Hearings, at 99 (statement of Rep. Dingell); id., at 101 (statement of Rep. Harvey). The final bill enacting § 1513 therefore appears to be a compromise following careful consideration by Congress as to the permissible scope of state taxation in the area of air commerce.
Most relevant to the issue before us in this case is the fact that nowhere in that legislative history is there any indication that Congress intended to limit the applicability of § 1513(b) to state taxation of interstate air commerce while prohibiting taxation of foreign air commerce. To the contrary, Congress was fully aware that the bill would cover foreign air commerce, since both the State Department and the Senate's own Legislative Council advised Congress that "air commerce" as employed in the proposed bill encompassed foreign *17 and overseas air commerce. See Senate Hearings, at 136 (letter of David M. Abshire, Department of State); id., at 207 (memorandum of Peter W. LeRoux, Senior Counsel, Office of Legislative Council). Moreover, Congress discussed the effect of foreign "head taxes" if similar local taxes were barred. House Hearings, at 35-37.
The language of the Act bears this out. Section 1513(a)'s prohibition refers to certain taxes "on persons traveling in air commerce . . . or on the sale of air transportation." The Act defines "air commerce" as including "interstate, overseas, or foreign air commerce." 49 U.S. C. App. § 1301(4). Similarly, "air transportation" is defined as including "interstate, overseas, or foreign air transportation." § 1301(10). Under the plain language of § 1513, therefore, the Florida tax even in the area of foreign air commerce is expressly authorized by Congress.
Just as we need not look beyond the plain language "when a federal statute unambiguously forbids the States to impose a particular kind of tax on an industry affecting interstate commerce," Aloha Airlines, 464 U. S., at 12 (emphasis added), we need not look beyond the plain language of a federal statute which unambiguously authorizes the States to impose a particular kind of tax. Section 1513(b) authorizes state sales taxes on goods used in air commerce. While Congress has not explained exactly why it made the distinction between taxes prohibited under § 1513(a) and those permitted under § 1513(b), "Congress chose to make the distinction, and the courts are obliged to honor this congressional choice." 464 U.S., at 12, n. 6.
By refusing to decide this case solely on the express language of § 1513(b) and instead entering the cloudy waters of this Court's "dormant Commerce Clause" doctrine, the Court fails to honor the choice already pointedly made by Congress following its extensive consideration of the problem of state taxation in this area. | The Court acknowledges in its discussion in Part II concerning the scope of the Federal Aviation Act that "not only is there no indication that Congress wished to preclude state sales taxation of airline fuel, but, to the contrary, the Act expressly permits States to impose such taxes." Ante, at 6. That being so I see no reason for the discussion in Part III. While 49 U.S. C. App. 1513(a) describes a number of state taxes which are prohibited, 1513(b) expressly permits state "sales or use taxes on the sale of goods or services." The fuel tax challenged here is plainly a "sales or use ta[x] on the sale of goods" within the language of 1513(b). Remarkably, the Court nevertheless refuses to "rely on the existence of this section to answer the Commerce Clause issue raised here" because it believes it is "plausible that Congress never considered whether States should be permitted to impose sales taxes on foreign, as opposed to domestic, carriers." Ante, at 7 Accordingly, the Court continues with an extended discussion of "the so-called dormant Commerce Clause," which applies to cases involving *14 areas where "the Federal Government has not affirmatively acted." The plain language of 1513(b) demonstrates, however, that there is nothing "dormant" here. The conclusion the Court reaches in Part II is illuminated by the Court's curious failure to even mention any of the extensive legislative history or this Court's recent precedent concerning the enactment of 1513, which followed our decision in Evansville-Vanderburgh Airport Authority In that case the Court upheld a $1-per-passenger "head tax" on all passengers boarding airplanes at the Evansville airport, after rejecting a Commerce Clause attack because the tax did not discriminate between interstate and intrastate commerce. Congress reacted immediately to our decision by holding hearings on local taxation of air transportation. See Hearings on S. 2397 et al. before the Subcommittee on Aviation of the Senate Committee on Commerce, 92d Cong., 2d Sess., 129-198 (hereafter Senate Hearings); Hearings on H. R. 2337 et al. before the Subcommittee on Transportation and Aeronautics of the House Committee on Interstate and Foreign Commerce, 92d Cong., 2d Sess. (hereafter House Hearings). The result of these hearings was the enactment of 7(a) of the Airport Development Acceleration Act of 1973, see Pub. L. 93-44, 7(a), which added 1113 to the Federal Aviation Act, and which is now codified, as amended, at 49 U.S. C. App. 1513. We subsequently addressed the scope of 1513(a)'s prohibition when confronted with Hawaii's state tax on the gross income of airlines operating within that State. See Aloha Reviewing the legislative history, the Court pointed out that 1513 was enacted out of congressional concern that "the proliferation of local taxes burdened interstate air transportation." at 9 (citing S. Rep. No. 93-12, pp. 17, 20-21 (1973), and H. R. Rep. No. 93-157, pp. 4-5 (1973)). We concluded unanimously that Hawaii's tax was expressly pre-empted *15 by the plain language of 1513(a), emphasizing that "when a federal statute unambiguously forbids the States to impose a particular kind of tax on an industry affecting interstate commerce, courts need not look beyond the plain language of the federal statute to determine whether a state statute that imposes such a tax is pre-empted." In the course of our discussion of 1513(a) we addressed the Hawaii Supreme Court's "professed confusion over the `paradox' between 1513(a)'s prohibition on certain state taxes on air transportation and 1513(b)'s reservation of the States' primary sources of revenue, such as property taxes, net income taxes, franchise taxes, and sales or use taxes." n. 6. Our resolution of this "paradox" is enlightening: "We find no paradox between 1513(a) and 1513(b). Section 1513(a) pre-empts a limited number of state taxes, including gross receipts taxes imposed on the sale of air transportation or the carriage of persons traveling in air commerce. Section 1513(b) clarifies Congress' view that the States are still free to impose on airlines and air carriers `taxes other than those enumerated in subsection (a),' such as property taxes, net income taxes, and franchise taxes. While neither the statute nor its legislative history explains exactly why Congress chose to distinguish between gross receipts taxes imposed on airlines and the taxes reserved in 1513(b), the statute is quite clear that Congress chose to make the distinction, and the courts are obliged to honor this congressional choice." Careful review of the legislative history indicates that it is not entirely silent as to why Congress chose to make this particular distinction. The Senate's first proposal to *16 limit state taxation would have prohibited any state tax direct or indirect on air transportation. S. 3611, 92d Cong., 2d Sess. ; see also H. R. 2337, 92d Cong., 1st Sess. (1971) (similar prohibition). The States, however, complained loudly at the hearings that this sweeping provision would prohibit even unobjectionable taxes such as landing fees, fuel taxes, and sales taxes on food provided to airline passengers. E. g., House Hearings, at 91 (statement of John A. Nammack, Executive Vice President, National Association of State Aviation Officials). This broad interpretation was supported by officials from the Civil Aeronautics Board and the Federal Aviation Administration, who objected to any such broad prohibition because it would deprive local governments of funds necessary for maintenance of airports. Senate Hearings, at 138 (statement of Whitney Gillilland, Vice Chairman, CAB); In reply, Members of Congress assured these officials that the prohibition was intended to apply only to "head taxes" and the like, and that some clarification of the bill's intent would be in order. E. g., See also House Hearings, at 99 (statement of Rep. Dingell); The final bill enacting 1513 therefore appears to be a compromise following careful consideration by Congress as to the permissible scope of state taxation in the area of air commerce. Most relevant to the issue before us in this case is the fact that nowhere in that legislative history is there any indication that Congress intended to limit the applicability of 1513(b) to state taxation of interstate air commerce while prohibiting taxation of foreign air commerce. To the contrary, Congress was fully aware that the bill would cover foreign air commerce, since both the State Department and the Senate's own Legislative Council advised Congress that "air commerce" as employed in the proposed bill encompassed foreign *17 and overseas air commerce. See Senate Hearings, at 136 (letter of David M. Abshire, Department of State); Moreover, Congress discussed the effect of foreign "head taxes" if similar local taxes were barred. House Hearings, at 35-37. The language of the Act bears this out. Section 1513(a)'s prohibition refers to certain taxes "on persons traveling in air commerce or on the sale of air transportation." The Act defines "air commerce" as including "interstate, overseas, or foreign air commerce." 49 U.S. C. App. 1301(4). Similarly, "air transportation" is defined as including "interstate, overseas, or foreign air transportation." 1301(10). Under the plain language of 1513, therefore, the Florida tax even in the area of foreign air commerce is expressly authorized by Congress. Just as we need not look beyond the plain language "when a federal statute unambiguously forbids the States to impose a particular kind of tax on an industry affecting interstate commerce," Aloha 464 U. S., we need not look beyond the plain language of a federal statute which unambiguously authorizes the States to impose a particular kind of tax. Section 1513(b) authorizes state sales taxes on goods used in air commerce. While Congress has not explained exactly why it made the distinction between taxes prohibited under 1513(a) and those permitted under 1513(b), "Congress chose to make the distinction, and the courts are obliged to honor this congressional choice." 464 U.S., n. 6. By refusing to decide this case solely on the express language of 1513(b) and instead entering the cloudy waters of this Court's "dormant Commerce Clause" doctrine, the Court fails to honor the choice already pointedly made by Congress following its extensive consideration of the problem of state taxation in this area. |
Justice Rehnquist | dissenting | false | United States v. National Treasury Employees Union | 1995-02-22T00:00:00 | null | https://www.courtlistener.com/opinion/117898/united-states-v-national-treasury-employees-union/ | https://www.courtlistener.com/api/rest/v3/clusters/117898/ | 1,995 | 1994-024 | 2 | 6 | 3 | I believe that the Court's opinion is seriously flawed in two respects. First, its application of the First Amendment understates the weight that should be accorded to the governmental justifications for the honoraria ban and overstates the amount of speech that actually will be deterred. Second, its discussion of the impact of the statute that it strikes down is carefully limited to only a handful of the most appealing individual situations, but when it deals with the remedy it suddenly shifts gears and strikes down the statute as applied to the entire class of Executive Branch employees below grade GS-16. I therefore dissent.
I
In 1991, in the aftermath of recommendations by two distinguished commissions, Congress adopted its present ban *490 on the receipt of honoraria. Congress defined an "honorarium" as
"a payment of money or any thing of value for an appearance, speech or article (including a series of appearances, speeches, or articles if the subject matter is directly related to the individual's official duties or the payment is made because of the individual's status with the Government) by a Member, officer or employee, excluding, any actual and necessary travel expenses incurred by such individual (and one relative) to the extent that such expenses are paid or reimbursed by any other person, and the amount otherwise determined shall be reduced by the amount of any such expenses to the extent that such expenses are not paid or reimbursed." 5 U.S. C. App. § 505(3) (1988 ed., Supp. V).
The ban neither prohibits anyone from speaking or writing, nor does it penalize anyone who speaks or writes; the only stricture effected by the statute is a denial of compensation.
In Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105 (1991), we evaluated the constitutionality of New York's "Son of Sam" law, which regulated an accused or convicted criminal's receipt of income generated by works that described his crime. Id., at 108. We concluded that the law implicated First Amendment concerns because it "impose[d] a financial disincentive only on speech of a particular content." Id., at 116. Because the "Son of Sam" law was content based, we required the State to demonstrate that the regulation was necessary to serve a compelling state interest and was narrowly drawn to achieve that end. Id., at 118. We determined that the State had failed to meet its burden because the statute was overbroad. Id., at 123.
Unlike the law at issue in Simon & Schuster, the honoraria ban is neither content nor viewpoint based. Ante, at 468; cf. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989); *491 Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48 (1986). As a result, the ban does not raise the specter of Government control over the marketplace of ideas. Cf. Simon & Schuster, supra, at 116. To the extent that the honoraria ban implicates First Amendment concerns, the proper standard of review is found in our cases dealing with the Government's ability to regulate the First Amendment activities of its employees.
A public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment. See Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568 (1968); Connick v. Myers, 461 U.S. 138, 140 (1983). We have emphasized, however, that "the State's interests as an employer in regulating the speech of its employees `differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.' " Ibid. (quoting Pickering, supra, at 568). The proper resolution of these competing interests requires "`a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.' " 461 U.S., at 140 (quoting Pickering, supra, at 568). Just last Term, a plurality of the Court explained:
"The key to First Amendment analysis of government employment decisions, then, is this: The government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer. The government cannot restrict the speech of the public at large just in the name of efficiency. But where the government is employing someone for the very purpose of effectively achieving its goals, such restrictions may well be appropriate." Waters v. Churchill, 511 U.S. 661, 675 (1994).
*492 In conducting this balance, we consistently have given substantial weight to government employers' reasonable predictions of disruption, even when the speech involved was on a matter of public concern. Id., at 673-674 (plurality opinion). As we noted in Connick, "`the Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs.' " 461 U.S., at 151 (quoting Arnett v. Kennedy, 416 U.S. 134, 168 (1974) (Powell, J., concurring in part and concurring in result)).
These principles are reflected in our cases involving governmental restrictions on employees' rights to engage in partisan political activity.[1] In Public Workers v. Mitchell, 330 U.S. 75 (1947), we examined § 9(a) of the Hatch Act, which prohibited officers and employees in the Executive Branch of the Federal Government, with exceptions, from taking "`any active part in political management or in political campaigns.' " Id., at 78. We analyzed § 9(a)'s strictures as applied to the partisan political activities of an industrial employee at the United States Mint, and concluded that "[f]or regulation of employees it is not necessary that the act regulated be anything more than an act reasonably deemed by Congress to interfere with the efficiency of the public service." Id., at 101. Despite the fact that § 9(a) barred threemillion public employees from taking "effective part in campaigns that may bring about changes in their lives, their fortunes, and their happiness," id., at 107 (Black, J., dissenting), we held that if in Congress' judgment "efficiency may be best obtained by prohibiting active participation by classified *493 employees in politics as party officers or workers," there was no constitutional objection, id., at 99.
More than 25 years later, we again addressed the constitutionality of § 9(a) of the Hatch Act. In Civil Service Comm'n v. Letter Carriers, 413 U.S. 548 (1973), we "unhesitatingly reaffirm[ed] the Mitchell holding," id., at 556, because "neither the First Amendment nor any other provision of the Constitution invalidate[d] alaw barring this kind of partisan political conduct by federal employees," ibid. We applied the balancing approach set forth in Pickering to the Hatch Act's sweeping limitation on partisan political activity, and determined that the balance struck by Congress was "sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the Hatch Act." 413 U.S., at 564. We concluded that "[p]erhaps Congress at some time w[ould] come to a different view of the realities of political life and Government service," but we were in no position to dispute Congress' current view of the matter. Id., at 567.
Although protection of employees from pressure to perform political chores certainly was a concern of the Hatch Act, see ante, at 471, it was by no means the only, or even the most important, concern.[2] See Letter Carriers, supra, at 566. Rather, the Court recognized that a major thesis of the Hatch Act was that
"to serve this great end of Governmentthe impartial execution of the lawsit is essential that federal employees . . . not take formal positions in political parties, not undertake to play substantial roles in partisan political campaigns, and not run for office on partisan political tickets. Forbidding activities like these will reduce the *494 hazards to fair and effective government." 413 U.S., at 565.
The Court emphasized that "it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent." Ibid. Thus, the Hatch Act served as a safeguard to both the actual and perceived impartiality and effectiveness of the Federal Government. See Mitchell, supra, at 95-96; Letter Carriers, supra, at 564-567.
Applying these standards to the honoraria ban, I cannot say that the balance that Congress has struck between its interests and the interests of its employees to receive compensation for their First Amendment expression is unreasonable. Cf. Letter Carriers, supra, at 564; Pickering, 391 U. S., at 568.
The Court largely ignores the Government's foremost interestprevention of impropriety and the appearance of improprietyby focusing solely on the burdens of the statute as applied to several carefully selected Executive Branch employees whose situations present the application of the statute where the Government's interests are at their lowest ebb: a mail handler employed by the Postal Service who lectured on the Quaker religion; an aerospace engineer who lectured on black history; a microbiologist who reviewed dance performances; and a tax examiner who wrote articles about the environment. Ante, at 461-462. Undoubtedly these are members of the class, but they by no means represent the breadth of the class which includes all "`employee[s]' . . . below grade GS-16, whobut for 5 U.S. C. app. 501(b) would receive `honoraria', as defined in 5 U.S. C. app. 505(3)." App. 124-125. Nothing in the class certification limits the receipt of honoraria to the activities engaged in by the several employees discussed by the Court. See, e. g., *495 ante, at 463, n. 6. This artificially narrow prism of class members, however, is the focus of the Court's entire First Amendment discussion.
The class definition speaks of anyone who would receive an honorarium but for the statute. App. 124-125. An unknown number of these individuals would receive honoraria where there is a nexus between their speech and their Government employment. There is little doubt that Congress reasonably could conclude that its interests in preventing impropriety and the appearance of impropriety in the federal work force outweigh the employees' interests in receiving compensation for expression that has a nexus to their Government employment. Cf. Federal Election Comm'n v. National Right to Work Comm., 459 U.S. 197, 210 (1982) ("The governmental interest in preventing both actual corruption and the appearance of corruption of elected representatives has long been recognized").
The Court relies on cases involving restrictions on the speech of private actors to argue that the Government is required to produce "evidence of misconduct related to honoraria in the vast rank and file of federal employees below grade GS-16." Ante, at 472; ante, at 475-476, and n. 21.[3] The Court recognizes, however, that we "`have consistently given greater deference to government predictions of harm used to justify restriction of employee speech than to predictions of harm used to justify restrictions on the speech of the public at large.' " Ante, at 475, n. 21 (quoting Waters, 511 U. S., at 673 (plurality opinion)).
*496 Prior to enactment of the current honoraria ban, Congress was informed by two distinguished commissions that its previous limitations on honoraria were inadequate. The 1989 Quadrennial Commission recommended that "Congress enact legislation abolishing the practice of accepting honoraria in all three branches." Fairness for Our Public Servants: Report of the 1989 Commission on Executive, Legislative and Judicial Salaries vi (Dec. 1988). To Serve With Honor: Report of the President's Commission on Federal Ethics Law Reform (Mar. 1989) (hereinafter Wilkey Commission) echoed many of the Quadrennial Commission's concerns:
"We recognize that speeches by federal officials can help inform the public or particular groups and may encourage interchange between the public and private sectors. Nevertheless, we can see no justification for perpetuating the current system of honoraria. Hono- raria paid to officials can be a camouflage for efforts by individuals or entities to gain the officials' favor. The companies that pay honoraria and related travel expenses frequently deem these payments to be normal business expenses and likely believe that these payments enhance their access to public officials who receive them. . . .
"Although we are aware of no special problems associated with receipt of honoraria within the judiciary, the Commissionin the interest of alleviating abuses in the legislative branch and in applying equitable limitations across the governmentjoins the Quadrennial Commission in recommending the enactment of legislation to ban the receipt of honoraria by all officials and employees in all three branches of government." Id., at 35-36 (emphasis added).
The Wilkey Commission "recognize[d] that banning honoraria would have a substantial financial cost to many officials," id., at 36, but determined that "the current ailment is *497 a serious one and that this medicine is no more bitter than is needed to cure the patient," ibid. The Wilkey Commission also was aware that its recommendations covered not only high-level federal employees,[4] but it "regard[ed] the current state of affairs as to honoraria in particular as unacceptable in the extreme, and believe[d] that [the Government could not] wait until an unspecified date in the future to end this harmful practice." Id., at 38.[5]
The Court concedes that in light of the abuses of honoraria by its Members, Congress could reasonably assume that "payments of honoraria to judges or high-ranking officials in the Executive Branch might generate a similar appearance of improper influence," ante, at 473, but it concludes that Congress could not extend this presumption to federal employees *498 below grade GS-16. The theory underlying the Court's distinctionthat federal employees below grade GS-16 have negligible power to confer favors on those who might pay to hear them speak or to read their articlesis seriously flawed. Tax examiners, bank examiners, enforcement officials, or any number of federal employees have substantial power to confer favors even though their compensation level is below grade GS-16.
Furthermore, we rejected the same distinction in Public Workers v. Mitchell:
"There is a suggestion that administrative workers may be barred, constitutionally, from political management and political campaigns while the industrial workers may not be barred, constitutionally, without an act `narrowly and selectively drawn to define and punish the specific conduct.' . . . Congress has determined that the presence of government employees, whether industrial or administrative, in the ranks of political party workers is bad. Whatever differences there may be between administrative employees of the government and industrial workers in its employ are differences in detail so far as the constitutional power under review is concerned. Whether there are such differences and what weight to attach to them, are all matters of detail for Congress." 330 U.S., at 102.
Congress was not obliged to draw an infinitely filigreed statute to deal with every subtle distinction between various groups of employees. See Letter Carriers, 413 U. S., at 556; Mitchell, supra, at 99.
The Court dismisses the Hatch Act experience as irrelevant, because it aimed to protect employees' rights, notably their right to free expression, rather than to restrict those rights. Ante, at 471. This is, indeed, a strange characterization of § 9(a) of the Hatch Act. It prohibited officers *499 and employees in the Executive Branch of the Federal Government from taking "`any active part in political management or in political campaigns.' " Mitchell, supra, at 78. The penalty for violation was dismissal from office. 330 U.S., at 79. Since the right to participate in a political campaign is surely secured in the abstract by the First Amendment, see, e. g., Buckley v. Valeo, 424 U.S. 1, 15 (1976) (per
1, protected curiam),
it can hardly be said that the Act the rights of workers who wished to engage in partisan political activity. One of the purposes of the Act was assuredly to free employees who did not wish to become engaged in politics from requests by their superiors to contribute money or time, but to the extent the Act protected these employees it undoubtedly limited the First Amendment rights of those who did wish to take an active part in politics.
The Government's related concern regarding the difficulties that would attach in administering a case-by-case analysis of the propriety of particular honoraria also supports the honoraria ban's validity. As we emphasized in Waters, "[t]he government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer." 511 U.S., at 675. Congress reasonably determined that the prior ethics regime, which required these case-by-case determinations, was inadequate. See App. 257 ("[T]he current state of affairs as to honoraria [is] unacceptable in the extreme"). As a subsequent 1992 GAO Report confirmed, individual ethics officers and various agencies gave differing interpretations to the nexus requirement, and some "approved activities that were questionable as to the appropriateness of accepting compensation." GAO Report, at 9.
The Court observes that because a nexus limitation is retained for a series of speeches, it cannot be that difficult to enforce. Ante, at 474. The exception that the honoraria ban *500 makes for a "series of appearances, speeches, or articles," far from undermining the statute's basic purpose, demonstrates that Congress was sensitive to the need for inhibiting as little speech consistent with its responsibility of ensuring that its employees perform their duties impartially and that there is no appearance of impropriety. Reply Brief for United States 12-13. One is far less likely to undertake a "series" of speeches or articles without being paid than he is to make a single speech or write a single article without being paid. Congress reasonably could have concluded that the number of cases where an employee wished to deliver a "series" of speeches would be much smaller than the number of requests to give individual speeches or write individual articles.
Unlike our prototypical application of Pickering which normally involves a response to the content of employee speech, the honoraria ban prohibits no speech and is unrelated to the message or the viewpoint expressed by the Government employee.[6] Cf. Waters, supra, at 664-666 (plurality opinion) (analyzing termination of an employee based upon statements critical of the employer); Rankin v. McPherson, 483 U.S. 378, 381-382 (1987) (analyzing termination of an employee based upon a comment about an attempted assassination of President Reagan); Pickering, 391 U. S., at 564 (analyzing termination of an employee based upon a letter critical of the school board). Furthermore, the honoraria ban exempts from its prohibition travel and other expenses related *501 to employee speech. See 5 U.S. C. App. § 505(3) (1988 ed., Supp. V); 5 CFR § 2636.203 (1994). Because there is only a limited burden on respondents' First Amendment rights, Congress reasonably could have determined that its paramount interests in preventing impropriety and the appearance of impropriety in its work force justified the honoraria ban. See Civil Service Comm'n v. Letter Carriers, supra; Public Workers v. Mitchell, 330 U.S. 75 (1947).
There is a special irony to the Court's decision. In order to combat corruption and to regain the public's trust, the Court essentially requires Congress to resurrect a bureaucracy that it previously felt compelled to replace and to equip it with resources sufficient to conduct case-by-case determinations regarding the actual and apparent propriety of honoraria by all Executive Branch employees below grade GS-16. I believe that a proper application of the Pickering test to this content-neutral restriction on the receipt of compensation compels the conclusion that the honoraria ban is consistent with the First Amendment. See Civil Service Comm'n v. Letter Carriers, 413 U.S. 548 (1973).
II
One would expect, at the conclusion of its discussion in Parts IIV, for the Court to hold the statute inapplicable on First Amendment grounds to persons such as the postal worker who lectures on the Quaker religion, and others of similar ilk. But the Court in Part V, in what may fairly be described as an O. Henry ending, holds the statute inapplicable to the entire class before the Court: all Executive Branch employees below grade GS-16 who would receive honoraria but for the statute. Under the Court's "as applied" remedy, § 501(b) would not apply regardless of whether there was a nexus between the compensation and the individual's employment. Even if I agreed that application of the honoraria ban to expressive activity unrelated to an employee's Government *502 employment violated the First Amendment, I could not agree with the Court's remedy.[7]
In United States v. Grace, 461 U.S. 171 (1983), we analyzed the constitutionality of 40 U.S. C. § 13k (1982 ed.), as applied to the public sidewalks surrounding the Supreme Court. Section 13k prohibited, "among other things, the `display [of] any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement' in the United States Supreme Court building and on its grounds." 461 U.S., at 172-173 (quoting § 13k). We concluded that there was insufficient justification for § 13k's prohibition against carrying signs, banners, or devices on the public sidewalks surrounding the building. Id., at 183. As a remedy, we held that § 13k was "unconstitutional as applied to those sidewalks." Ibid.; see also Edenfield v. Fane, 507 U.S. 761, 763 (1993) (striking down a ban on solicitation by certified public accountants as applied to the "business context").
Although the Court limits its analysis to only those applications of the honoraria ban where there is no nexus between the honoraria and Government employment, the Court prohibits application of the honoraria ban to all Executive Branch employees below grade GS-16 even where there is a nexus between the honoraria and the employees' Government employment. Ante, at 479-480.[8] Even respondents acknowledge that the central aim of their litigation could "be achieved by a remedy similar to the one urged by the governmentby holding the ban invalid as applied to respondents' *503 writing and speaking activities, which have no nexus to their federal employment." Brief for Respondents 45-46.
Consistent with our approach in Grace , supra, if I were to conclude that § 501(b) violated the First Amendment, I would affirm the Court of Appeals only insofar as its judgment affirmed the injunction against the enforcement of § 501(b) as applied to Executive Branch employees below grade GS-16 who seek honoraria that are unrelated to their Government employment.
| I believe that the Court's opinion is seriously flawed in two respects. First, its application of the First Amendment understates the weight that should be accorded to the governmental justifications for the honoraria ban and overstates the amount of speech that actually will be deterred. Second, its discussion of the impact of the statute that it strikes down is carefully limited to only a handful of the most appealing individual situations, but when it deals with the remedy it suddenly shifts gears and strikes down the statute as applied to the entire class of Executive Branch employees below grade GS-16. I therefore dissent. I In 1991, in the aftermath of recommendations by two distinguished commissions, Congress adopted its present ban *490 on the receipt of honoraria. Congress defined an "honorarium" as "a payment of money or any thing of value for an appearance, speech or article (including a series of appearances, speeches, or articles if the subject matter is directly related to the individual's official duties or the payment is made because of the individual's status with the Government) by a Member, officer or employee, excluding, any actual and necessary travel expenses incurred by such individual (and one relative) to the extent that such expenses are paid or reimbursed by any other person, and the amount otherwise determined shall be reduced by the amount of any such expenses to the extent that such expenses are not paid or reimbursed." 5 U.S. C. App. 505(3) (1988 ed., Supp. V). The ban neither prohibits anyone from speaking or writing, nor does it penalize anyone who speaks or writes; the only stricture effected by the statute is a denial of compensation. In Simon & we evaluated the constitutionality of New York's "Son of Sam" law, which regulated an accused or convicted criminal's receipt of income generated by works that described his crime. We concluded that the law implicated First Amendment concerns because it "impose[d] a financial disincentive only on speech of a particular content." Because the "Son of Sam" law was content based, we required the State to demonstrate that the regulation was necessary to serve a compelling state interest and was narrowly drawn to achieve that end. We determined that the State had failed to meet its burden because the statute was overbroad. Unlike the law at issue in Simon & the honoraria ban is neither content nor viewpoint based. Ante, at 468; cf. ; *491 As a result, the ban does not raise the specter of Government control over the marketplace of ideas. Cf. Simon & To the extent that the honoraria ban implicates First Amendment concerns, the proper standard of review is found in our cases dealing with the Government's ability to regulate the First Amendment activities of its employees. A public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment. See ; We have emphasized, however, that "the State's interests as an employer in regulating the speech of its employees `differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.' " (quoting at ). The proper resolution of these competing interests requires "`a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.' " 461 U.S., at (quoting at ). Just last Term, a plurality of the Court explained: "The key to First Amendment analysis of government employment decisions, then, is this: The government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer. The government cannot restrict the speech of the public at large just in the name of efficiency. But where the government is employing someone for the very purpose of effectively achieving its goals, such restrictions may well be appropriate." *492 In conducting this balance, we consistently have given substantial weight to government employers' reasonable predictions of disruption, even when the speech involved was on a matter of public concern. As we noted in Connick, "`the Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs.' " ). These principles are reflected in our cases involving governmental restrictions on employees' rights to engage in partisan political activity.[1] In Public we examined 9(a) of the Hatch Act, which prohibited officers and employees in the Executive Branch of the Federal Government, with exceptions, from taking "`any active part in political management or in political campaigns.' " We analyzed 9(a)'s strictures as applied to the partisan political activities of an industrial employee at the United States Mint, and concluded that "[f]or regulation of employees it is not necessary that the act regulated be anything more than an act reasonably deemed by Congress to interfere with the efficiency of the public service." Despite the fact that 9(a) barred threemillion public employees from taking "effective part in campaigns that may bring about changes in their lives, their fortunes, and their happiness," we held that if in Congress' judgment "efficiency may be best obtained by prohibiting active participation by classified *493 employees in politics as party officers or workers," there was no constitutional objection, More than 25 years later, we again addressed the constitutionality of 9(a) of the Hatch Act. In Civil Service we "unhesitatingly reaffirm[ed] the holding," because "neither the First Amendment nor any other provision of the Constitution invalidate[d] alaw barring this kind of partisan political conduct by federal employees," We applied the balancing approach set forth in to the Hatch Act's sweeping limitation on partisan political activity, and determined that the balance struck by Congress was "sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the Hatch Act." We concluded that "[p]erhaps Congress at some time w[ould] come to a different view of the realities of political life and Government service," but we were in no position to dispute Congress' current view of the matter. Although protection of employees from pressure to perform political chores certainly was a concern of the Hatch Act, see ante, at 471, it was by no means the only, or even the most important, concern.[2] See Letter Rather, the Court recognized that a major thesis of the Hatch Act was that "to serve this great end of Governmentthe impartial execution of the lawsit is essential that federal employees not take formal positions in political parties, not undertake to play substantial roles in partisan political campaigns, and not run for office on partisan political tickets. Forbidding activities like these will reduce the *494 hazards to fair and effective government." The Court emphasized that "it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent." Thus, the Hatch Act served as a safeguard to both the actual and perceived impartiality and effectiveness of the Federal Government. See ; Letter Applying these standards to the honoraria ban, I cannot say that the balance that Congress has struck between its interests and the interests of its employees to receive compensation for their First Amendment expression is unreasonable. Cf. Letter ; 391 U. S., at The Court largely ignores the Government's foremost interestprevention of impropriety and the appearance of improprietyby focusing solely on the burdens of the statute as applied to several carefully selected Executive Branch employees whose situations present the application of the statute where the Government's interests are at their lowest ebb: a mail handler employed by the Postal Service who lectured on the Quaker religion; an aerospace engineer who lectured on black history; a microbiologist who reviewed dance performances; and a tax examiner who wrote articles about the environment. Ante, at 461-462. Undoubtedly these are members of the class, but they by no means represent the breadth of the class which includes all "`employee[s]' below grade GS-16, whobut for 5 U.S. C. app. 501(b) would receive `honoraria', as defined in 5 U.S. C. app. 505(3)." App. 124-125. Nothing in the class certification limits the receipt of honoraria to the activities engaged in by the several employees discussed by the Court. See, e. g., *495 ante, at 463, n. 6. This artificially narrow prism of class members, however, is the focus of the Court's entire First Amendment discussion. The class definition speaks of anyone who would receive an honorarium but for the statute. App. 124-125. An unknown number of these individuals would receive honoraria where there is a nexus between their speech and their Government employment. There is little doubt that Congress reasonably could conclude that its interests in preventing impropriety and the appearance of impropriety in the federal work force outweigh the employees' interests in receiving compensation for expression that has a nexus to their Government employment. Cf. Federal Election The Court relies on cases involving restrictions on the speech of private actors to argue that the Government is required to produce "evidence of misconduct related to honoraria in the vast rank and file of federal employees below grade GS-16." Ante, at 472; ante, at 475-476, and n. 21.[3] The Court recognizes, however, that we "`have consistently given greater deference to government predictions of harm used to justify restriction of employee speech than to predictions of harm used to justify restrictions on the speech of the public at large.' " Ante, at 475, n. 21 (quoting ). *496 Prior to enactment of the current honoraria ban, Congress was informed by two distinguished commissions that its previous limitations on honoraria were inadequate. The 1989 Quadrennial Commission recommended that "Congress enact legislation abolishing the practice of accepting honoraria in all three branches." Fairness for Our Public Servants: Report of the 1989 Commission on Executive, Legislative and Judicial Salaries vi (Dec. 1988). To Serve With Honor: Report of the President's Commission on Federal Ethics Law Reform (hereinafter Wilkey Commission) echoed many of the Quadrennial Commission's concerns: "We recognize that speeches by federal officials can help inform the public or particular groups and may encourage interchange between the public and private sectors. Nevertheless, we can see no justification for perpetuating the current system of honoraria. Hono- raria paid to officials can be a camouflage for efforts by individuals or entities to gain the officials' favor. The companies that pay honoraria and related travel expenses frequently deem these payments to be normal business expenses and likely believe that these payments enhance their access to public officials who receive them. "Although we are aware of no special problems associated with receipt of honoraria within the judiciary, the Commissionin the interest of alleviating abuses in the legislative branch and in applying equitable limitations across the governmentjoins the Quadrennial Commission in recommending the enactment of legislation to ban the receipt of honoraria by all officials and employees in all three branches of government." The Wilkey Commission "recognize[d] that banning honoraria would have a substantial financial cost to many officials," but determined that "the current ailment is *497 a serious one and that this medicine is no more bitter than is needed to cure the patient," The Wilkey Commission also was aware that its recommendations covered not only high-level federal employees,[4] but it "regard[ed] the current state of affairs as to honoraria in particular as unacceptable in the extreme, and believe[d] that [the Government could not] wait until an unspecified date in the future to end this harmful practice."[5] The Court concedes that in light of the abuses of honoraria by its Members, Congress could reasonably assume that "payments of honoraria to judges or high-ranking officials in the Executive Branch might generate a similar appearance of improper influence," ante, at 473, but it concludes that Congress could not extend this presumption to federal employees *498 below grade GS-16. The theory underlying the Court's distinctionthat federal employees below grade GS-16 have negligible power to confer favors on those who might pay to hear them speak or to read their articlesis seriously flawed. Tax examiners, bank examiners, enforcement officials, or any number of federal employees have substantial power to confer favors even though their compensation level is below grade GS-16. Furthermore, we rejected the same distinction in Public : "There is a suggestion that administrative workers may be barred, constitutionally, from political management and political campaigns while the industrial workers may not be barred, constitutionally, without an act `narrowly and selectively drawn to define and punish the specific conduct.' Congress has determined that the presence of government employees, whether industrial or administrative, in the ranks of political party workers is bad. Whatever differences there may be between administrative employees of the government and industrial workers in its employ are differences in detail so far as the constitutional power under review is concerned. Whether there are such differences and what weight to attach to them, are all matters of detail for Congress." Congress was not obliged to draw an infinitely filigreed statute to deal with every subtle distinction between various groups of employees. See Letter 413 U. S., ; The Court dismisses the Hatch Act experience as irrelevant, because it aimed to protect employees' rights, notably their right to free expression, rather than to restrict those rights. Ante, at 471. This is, indeed, a strange characterization of 9(a) of the Hatch Act. It prohibited officers *499 and employees in the Executive Branch of the Federal Government from taking "`any active part in political management or in political campaigns.' " The penalty for violation was dismissal from Since the right to participate in a political campaign is surely secured in the abstract by the First Amendment, see, e. g., (per 1, protected curiam), it can hardly be said that the Act the rights of workers who wished to engage in partisan political activity. One of the purposes of the Act was assuredly to free employees who did not wish to become engaged in politics from requests by their superiors to contribute money or time, but to the extent the Act protected these employees it undoubtedly limited the First Amendment rights of those who did wish to take an active part in politics. The Government's related concern regarding the difficulties that would attach in administering a case-by-case analysis of the propriety of particular honoraria also supports the honoraria ban's validity. As we emphasized in "[t]he government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer." 511 U.S., at Congress reasonably determined that the prior ethics regime, which required these case-by-case determinations, was inadequate. See App. 257 ("[T]he current state of affairs as to honoraria [is] unacceptable in the extreme"). As a subsequent 1992 GAO Report confirmed, individual ethics officers and various agencies gave differing interpretations to the nexus requirement, and some "approved activities that were questionable as to the appropriateness of accepting compensation." GAO Report, at 9. The Court observes that because a nexus limitation is retained for a series of speeches, it cannot be that difficult to enforce. Ante, at 474. The exception that the honoraria ban *500 makes for a "series of appearances, speeches, or articles," far from undermining the statute's basic purpose, demonstrates that Congress was sensitive to the need for inhibiting as little speech consistent with its responsibility of ensuring that its employees perform their duties impartially and that there is no appearance of impropriety. Reply Brief for United States 12-13. One is far less likely to undertake a "series" of speeches or articles without being paid than he is to make a single speech or write a single article without being paid. Congress reasonably could have concluded that the number of cases where an employee wished to deliver a "series" of speeches would be much smaller than the number of requests to give individual speeches or write individual articles. Unlike our prototypical application of which normally involves a response to the content of employee speech, the honoraria ban prohibits no speech and is unrelated to the message or the viewpoint expressed by the Government employee.[6] Cf. (analyzing termination of an employee based upon statements critical of the employer); ; 391 U. S., Furthermore, the honoraria ban exempts from its prohibition travel and other expenses related *501 to employee speech. See 5 U.S. C. App. 505(3) (1988 ed., Supp. V); 5 CFR 2636.203 Because there is only a limited burden on respondents' First Amendment rights, Congress reasonably could have determined that its paramount interests in preventing impropriety and the appearance of impropriety in its work force justified the honoraria ban. See Civil Service Public There is a special irony to the Court's decision. In order to combat corruption and to regain the public's trust, the Court essentially requires Congress to resurrect a bureaucracy that it previously felt compelled to replace and to equip it with resources sufficient to conduct case-by-case determinations regarding the actual and apparent propriety of honoraria by all Executive Branch employees below grade GS-16. I believe that a proper application of the test to this content-neutral restriction on the receipt of compensation compels the conclusion that the honoraria ban is consistent with the First Amendment. See Civil Service II One would expect, at the conclusion of its discussion in Parts IIV, for the Court to hold the statute inapplicable on First Amendment grounds to persons such as the postal worker who lectures on the Quaker religion, and others of similar ilk. But the Court in Part V, in what may fairly be described as an O. Henry ending, holds the statute inapplicable to the entire class before the Court: all Executive Branch employees below grade GS-16 who would receive honoraria but for the statute. Under the Court's "as applied" remedy, 501(b) would not apply regardless of whether there was a nexus between the compensation and the individual's employment. Even if I agreed that application of the honoraria ban to expressive activity unrelated to an employee's Government *502 employment violated the First Amendment, I could not agree with the Court's remedy.[7] In United we analyzed the constitutionality of 40 U.S. C. 13k (1982 ed.), as applied to the public sidewalks surrounding the Supreme Court. Section 13k prohibited, "among other things, the `display [of] any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement' in the United States Supreme Court building and on its grounds." -173 (quoting 13k). We concluded that there was insufficient justification for 13k's prohibition against carrying signs, banners, or devices on the public sidewalks surrounding the building. As a remedy, we held that 13k was "unconstitutional as applied to those sidewalks." ; see also Although the Court limits its analysis to only those applications of the honoraria ban where there is no nexus between the honoraria and Government employment, the Court prohibits application of the honoraria ban to all Executive Branch employees below grade GS-16 even where there is a nexus between the honoraria and the employees' Government employment. Ante, at 479-480.[8] Even respondents acknowledge that the central aim of their litigation could "be achieved by a remedy similar to the one urged by the governmentby holding the ban invalid as applied to respondents' *503 writing and speaking activities, which have no nexus to their federal employment." Brief for Respondents 45-46. Consistent with our approach in Grace if I were to conclude that 501(b) violated the First Amendment, I would affirm the Court of Appeals only insofar as its judgment affirmed the injunction against the enforcement of 501(b) as applied to Executive Branch employees below grade GS-16 who seek honoraria that are unrelated to their Government employment. |
Justice Thomas | majority | false | Florida v. White | 1999-05-17T00:00:00 | null | https://www.courtlistener.com/opinion/118287/florida-v-white/ | https://www.courtlistener.com/api/rest/v3/clusters/118287/ | 1,999 | 1998-055 | 1 | 7 | 2 | The Florida Contraband Forfeiture Act provides that certain forms of contraband, including motor vehicles used in violation of the Act's provisions, may be seized and potentially forfeited. In this case, we must decide whether the Fourth Amendment requires the police to obtain a warrant before seizing an automobile from a public place when they have probable cause to believe that it is forfeitable contraband. We hold that it does not.
I
On three occasions in July and August 1993, police officers observed respondent Tyvessel Tyvorus White using his car to deliver cocaine, and thereby developed probable cause to believe that his car was subject to forfeiture under the Florida Contraband Forfeiture Act (Act), Fla. Stat. § 932.701 et seq. (1997).[1] Several months later, the police arrested respondent at his place of employment on charges unrelated to the drug transactions observed in July and August 1993. At the same time, the arresting officers, without securing a warrant, seized respondent's automobile in accordance with the provisions of the Act. See § 932.703(2)(a).[2] They seized the *562 vehicle solely because they believed that it was forfeitable under the Act. During a subsequent inventory search, the police found two pieces of crack cocaine in the ashtray. Based on the discovery of the cocaine, respondent was charged with possession of a controlled substance in violation of Florida law.
At histrial on the possession charge, respondent filed a motion to suppress the evidence discovered during the inventory search. He argued that the warrantless seizure of his car violated the Fourth Amendment, thereby making the cocaine the "fruit of the poisonous tree." The trial court initially reserved ruling on respondent's motion, but later denied it after the jury returned a guilty verdict. On appeal, the Florida First District Court of Appeal affirmed. 680 So. 2d 550 (1996). Adopting the position of a majority of state and federal courts to have considered the question, the court rejected respondent's argument that the Fourth Amendment required the police to secure a warrant prior to seizing his vehicle. Id., at 554. Because the Florida Supreme Court and this Court had not directly addressed the issue, the court certified to the Florida Supreme Court the question whether, absent exigent circumstances, the warrantless seizure of an automobile under the Act violated the Fourth Amendment. Id., at 555.
In a divided opinion, the Florida Supreme Court answered the certified question in the affirmative, quashed the First District Court of Appeal's opinion, and remanded. 710 So. 2d 949, 955 (1998). The majority of the court concluded that, absent exigent circumstances, the Fourth Amendment requires the police to obtain a warrant prior to seizing property *563 that has been used in violation of the Act. Ibid. According to the court, the fact that the police develop probable cause to believe that such a violation occurred does not, standing alone, justify a warrantless seizure. The court expressly rejected the holding of the Eleventh Circuit, see United States v. Valdes, 876 F.2d 1554 (1989), and the majority of other Federal Circuits to have addressed the same issue in the context of the federal civil forfeiture law, 21 U.S. C. § 881, which is similar to Florida's. See United States v. Decker, 19 F.3d 287 (CA6 1994) (per curiam); United States v. Pace, 898 F.2d 1218, 1241 (CA7 1990); United States v. One 1978 Mercedes Benz, 711 F.2d 1297 (CA5 1983); United States v. Kemp, 690 F.2d 397 (CA4 1982); United States v. Bush, 647 F.2d 357 (CA3 1981). But see United States v. Dixon, 1 F.3d 1080 (CA10 1993); United States v. Lasanta, 978 F.2d 1300 (CA2 1992); United States v.Linn, 880 F.2d 209 (CA9 1989). We granted certiorari, 525 U.S. 1000 (1998), and now reverse.
II
The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," and further provides that "no Warrants shall issue, but upon probable cause." U. S. Const., Amdt. 4. In deciding whether a challenged governmental action violates the Amendment, we have taken care to inquire whether the action was regarded as an unlawful search and seizure when the Amendment was framed. See Wyoming v. Houghton, ante, at 299; Carroll v. United States, 267 U.S. 132, 149 (1925) ("The Fourth Amendment is to be construed in light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens").
In Carroll, we held that when federal officers have probable cause to believe that an automobile contains contraband, *564 the Fourth Amendment does not require them to obtain a warrant prior to searching the car for and seizing the contraband. Our holding was rooted in federal law enforcement practice at the time of the adoption of the Fourth Amendment. Specifically, we looked to laws of the First, Second, and Fourth Congresses that authorized federal officers to conduct warrantless searches of ships and to seize concealed goods subject to duties. Id., at 150-151 (citing Act of July 31, 1789, §§ 24, 29, 1 Stat. 43; Act of Aug. 4, 1790, § 50, 1 Stat. 170; Act of Feb. 18, 1793, § 27, 1 Stat. 315; Act of Mar. 2, 1799, §§ 68-70, 1 Stat. 677, 678). These enactments led us to conclude that "contemporaneously with the adoption of the Fourth Amendment," Congress distinguished "the necessity for a search warrant between goods subject to forfeiture, when concealed in a dwelling house or similar place, and like goods in course of transportation and concealed in a movable vessel where they readily could be put out of reach of a search warrant." 267 U.S., at 151.
The Florida Supreme Court recognized that under Carroll, the police could search respondent's car, without obtaining a warrant, if they had probable cause to believe that it contained contraband. The court, however, rejected the argument that the warrantless seizure of respondent's vehicle itself also was appropriate under Carroll and its progeny. It reasoned that "[t]here is a vast difference between permitting the immediate search of a movable automobile based on actual knowledge that it then contains contraband [and] the discretionary seizure of a citizen's automobile based upon a belief that it may have been used at some time in the past to assist in illegal activity." 710 So. 2d, at 953. We disagree.
The principles underlying the rule in Carroll and the founding-era statutes upon which they are based fully support the conclusion that the warrantless seizure of respondent's car did not violate the Fourth Amendment. Although, as the Florida Supreme Court observed, the police lacked *565 probable cause to believe that respondent's car contained contraband, see 710 So. 2d, at 953, they certainly had probable cause to believe that the vehicle itself was contraband under Florida law.[3] Recognition of the need to seize readily movable contraband before it is spirited away undoubtedly underlies the early federal laws relied upon in Carroll. See 267 U.S., at 150-152; see also California v. Carney, 471 U.S. 386, 390 (1985); South Dakota v. Opperman, 428 U.S. 364, 367 (1976). This need is equally weighty when the automobile, as opposed to its contents, is the contraband that the police seek to secure.[4] Furthermore, the early federal statutes that we looked to in Carroll, like the Florida Contraband Forfeiture Act, authorized the warrantless seizure of both goods subject to duties and the ships upon which those goods were concealed. See, e. g., 1 Stat. 43, 46; 1 Stat. 170, 174; 1 Stat. 677, 678, 692.
In addition to the special considerations recognized in the context of movable items, our Fourth Amendment jurisprudence has consistently accorded law enforcement officials greater latitude in exercising their duties in public places. For example, although a warrant presumptively is required for a felony arrest in a suspect's home, the Fourth Amendment permits warrantless arrests in public places where an officer has probable cause to believe that a felony has occurred. See United States v. Watson, 423 U.S. 411, 416-424 (1976). In explaining this rule, we have drawn upon the established *566 "distinction between a warrantless seizure in an open area and such a seizure on private premises." Payton v. New York, 445 U.S. 573, 587 (1980); see also id., at 586-587 ("It is also well settled that objects such as weapons or contraband found in a public place may be seized by the police without a warrant"). The principle that underlies Watson extends to the seizure at issue in this case. Indeed, the facts of this case are nearly indistinguishable from those in G. M. Leasing Corp. v. United States, 429 U.S. 338 (1977). There, we considered whether federal agents violated the Fourth Amendment by failing to secure a warrant prior to seizing automobiles in partial satisfaction of income tax assessments. Id., at 351. We concluded that they did not, reasoning that "[t]he seizures of the automobiles in this case took place on public streets, parking lots, or other open places, and did not involve any invasion of privacy." Ibid. Here, because the police seized respondent's vehicle from a public arearespondent's employer's parking lotthe warrantless seizure also did not involve any invasion of respondent's privacy. Based on the relevant history and our prior precedent, we therefore conclude that the Fourth Amendment did not require a warrant to seize respondent's automobile in these circumstances.
The judgment of the Florida Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion.
It is so ordered. | The Florida Contraband Forfeiture Act provides that certain forms of contraband, including motor vehicles used in violation of the Act's provisions, may be seized and potentially forfeited. In this case, we must decide whether the Fourth Amendment requires the police to obtain a warrant before seizing an automobile from a public place when they have probable cause to believe that it is forfeitable contraband. We hold that it does not. I On three occasions in July and August police officers observed respondent Tyvessel Tyvorus White using his car to deliver cocaine, and thereby developed probable cause to believe that his car was subject to forfeiture under the Florida Contraband Forfeiture Act (Act), et seq. (1997).[1] Several months later, the police arrested respondent at his place of employment on charges unrelated to the drug transactions observed in July and August At the same time, the arresting officers, without securing a warrant, seized respondent's automobile in accordance with the provisions of the Act. See 932.703(2)(a).[2] They seized the *562 vehicle solely because they believed that it was forfeitable under the Act. During a subsequent inventory search, the police found two pieces of crack cocaine in the ashtray. Based on the discovery of the cocaine, respondent was charged with possession of a controlled substance in violation of Florida law. At histrial on the possession charge, respondent filed a motion to suppress the evidence discovered during the inventory search. He argued that the warrantless seizure of his car violated the Fourth Amendment, thereby making the cocaine the "fruit of the poisonous tree." The trial court initially reserved ruling on respondent's motion, but later denied it after the jury returned a guilty verdict. On appeal, the Florida First District Court of Appeal affirmed. Adopting the position of a majority of state and federal courts to have considered the question, the court rejected respondent's argument that the Fourth Amendment required the police to secure a warrant prior to seizing his vehicle. Because the Florida Supreme Court and this Court had not directly addressed the issue, the court certified to the Florida Supreme Court the question whether, absent exigent circumstances, the warrantless seizure of an automobile under the Act violated the Fourth Amendment. In a divided opinion, the Florida Supreme Court answered the certified question in the affirmative, quashed the First District Court of Appeal's opinion, and remanded. The majority of the court concluded that, absent exigent circumstances, the Fourth Amendment requires the police to obtain a warrant prior to seizing property *563 that has been used in violation of the Act. According to the court, the fact that the police develop probable cause to believe that such a violation occurred does not, standing alone, justify a warrantless seizure. The court expressly rejected the holding of the Eleventh Circuit, see United and the majority of other Federal Circuits to have addressed the same issue in the context of the federal civil forfeiture law, 21 U.S. C. 881, which is similar to Florida's. See United ; United ; United ; United ; United But see United ; United ; United States v.Linn, We granted certiorari, and now reverse. II The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," and further provides that "no Warrants shall issue, but upon probable cause." U. S. Const., Amdt. 4. In deciding whether a challenged governmental action violates the Amendment, we have taken care to inquire whether the action was regarded as an unlawful search and seizure when the Amendment was framed. See Wyoming v. Houghton, ante, at 299; In Carroll, we held that when federal officers have probable cause to believe that an automobile contains contraband, *564 the Fourth Amendment does not require them to obtain a warrant prior to searching the car for and seizing the contraband. Our holding was rooted in federal law enforcement practice at the time of the adoption of the Fourth Amendment. Specifically, we looked to laws of the First, Second, and Fourth Congresses that authorized federal officers to conduct warrantless searches of ships and to seize concealed goods subject to duties. at 150-151 (citing Act of July 31, 1789, 24, 29, ; Act of Aug. 4, 1790, 50, ; Act of Feb. 18, 1793, 27, ; Act of Mar. 2, 1799, 68-70, 678). These enactments led us to conclude that "contemporaneously with the adoption of the Fourth Amendment," Congress distinguished "the necessity for a search warrant between goods subject to forfeiture, when concealed in a dwelling house or similar place, and like goods in course of transportation and concealed in a movable vessel where they readily could be put out of reach of a search warrant." The Florida Supreme Court recognized that under Carroll, the police could search respondent's car, without obtaining a warrant, if they had probable cause to believe that it contained contraband. The court, however, rejected the argument that the warrantless seizure of respondent's vehicle itself also was appropriate under Carroll and its progeny. It reasoned that "[t]here is a vast difference between permitting the immediate search of a movable automobile based on actual knowledge that it then contains contraband [and] the discretionary seizure of a citizen's automobile based upon a belief that it may have been used at some time in the past to assist in illegal activity." We disagree. The principles underlying the rule in Carroll and the founding-era statutes upon which they are based fully support the conclusion that the warrantless seizure of respondent's car did not violate the Fourth Amendment. Although, as the Florida Supreme Court observed, the police lacked *565 probable cause to believe that respondent's car contained contraband, see they certainly had probable cause to believe that the vehicle itself was contraband under Florida law.[3] Recognition of the need to seize readily movable contraband before it is spirited away undoubtedly underlies the early federal laws relied upon in Carroll. See -152; see also ; South This need is equally weighty when the automobile, as opposed to its contents, is the contraband that the police seek to secure.[4] Furthermore, the early federal statutes that we looked to in Carroll, like the Florida Contraband Forfeiture Act, authorized the warrantless seizure of both goods subject to duties and the ships upon which those goods were concealed. See, e. g., 46; 174; 678, 692. In addition to the special considerations recognized in the context of movable items, our Fourth Amendment jurisprudence has consistently accorded law enforcement officials greater latitude in exercising their duties in public places. For example, although a warrant presumptively is required for a felony arrest in a suspect's home, the Fourth Amendment permits warrantless arrests in public places where an officer has probable cause to believe that a felony has occurred. See United In explaining this rule, we have drawn upon the established *566 "distinction between a warrantless seizure in an open area and such a seizure on private premises." ; see also at 586- The principle that underlies Watson extends to the seizure at issue in this case. Indeed, the facts of this case are nearly indistinguishable from those in G. M. Leasing There, we considered whether federal agents violated the Fourth Amendment by failing to secure a warrant prior to seizing automobiles in partial satisfaction of income tax assessments. We concluded that they did not, reasoning that "[t]he seizures of the automobiles in this case took place on public streets, parking lots, or other open places, and did not involve any invasion of privacy." Here, because the police seized respondent's vehicle from a public arearespondent's employer's parking lotthe warrantless seizure also did not involve any invasion of respondent's privacy. Based on the relevant history and our prior precedent, we therefore conclude that the Fourth Amendment did not require a warrant to seize respondent's automobile in these circumstances. The judgment of the Florida Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered. |
Justice Blackmun | second_dissenting | false | Florida v. Riley | 1989-04-03T00:00:00 | null | https://www.courtlistener.com/opinion/112175/florida-v-riley/ | https://www.courtlistener.com/api/rest/v3/clusters/112175/ | 1,989 | 1988-025 | 1 | 5 | 4 | The question before the Court is whether the helicopter surveillance over Riley's property constituted a "search" within the meaning of the Fourth Amendment. Like JUSTICE BRENNAN, JUSTICE MARSHALL, JUSTICE STEVENS, and JUSTICE O'CONNOR, I believe that answering this question depends upon whether Riley has a "reasonable expectation of privacy" that no such surveillance would occur, and does not depend upon the fact that the helicopter was flying at a lawful altitude under FAA regulations. A majority of this Court thus agrees to at least this much.
The inquiry then becomes how to determine whether Riley's expectation was a reasonable one. JUSTICE BRENNAN, the two Justices who have joined him, and JUSTICE O'CONNOR all believe that the reasonableness of Riley's expectation depends, in large measure, on the frequency of nonpolice helicopter flights at an altitude of 400 feet. Again, I agree.
How is this factual issue to be decided? JUSTICE BRENNAN suggests that we may resolve it ourselves without any evidence in the record on this point. I am wary of this approach. While I, too, suspect that for most American communities it is a rare event when nonpolice helicopters fly over one's curtilage at an altitude of 400 feet, I am not convinced that we should establish a per se rule for the entire Nation based on judicial suspicion alone. See Coffin, Judicial Balancing, 63 N. Y. U. L. Rev. 16, 37 (1988).
But we need not abandon our judicial intuition entirely. The opinions of both JUSTICE BRENNAN and JUSTICE O'CONNOR, by their use of "cf." citations, implicitly recognize that none of our prior decisions tells us who has the burden of proving whether Riley's expectation of privacy was reasonable. In the absence of precedent on the point, it is appropriate for us to take into account our estimation of the *468 frequency of nonpolice helicopter flights. See 4 W. LaFave, Search and Seizure § 11.2(b), p. 228 (2d ed. 1987) (burdens of proof relevant to Fourth Amendment issues may be based on a judicial estimate of the probabilities involved). Thus, because I believe that private helicopters rarely fly over curtilages at an altitude of 400 feet, I would impose upon the prosecution the burden of proving contrary facts necessary to show that Riley lacked a reasonable expectation of privacy. Indeed, I would establish this burden of proof for any helicopter surveillance case in which the flight occurred below 1,000 feet in other words, for any aerial surveillance case not governed by the Court's decision in California v. Ciraolo, 476 U.S. 207 (1986).
In this case, the prosecution did not meet this burden of proof, as JUSTICE BRENNAN notes. This failure should compel a finding that a Fourth Amendment search occurred. But because our prior cases gave the parties little guidance on the burden of proof issue, I would remand this case to allow the prosecution an opportunity to meet this burden.
The order of this Court, however, is not to remand the case in this manner. Rather, because JUSTICE O'CONNOR would impose the burden of proof on Riley and because she would not allow Riley an opportunity to meet this burden, she joins the plurality's view that no Fourth Amendment search occurred. The judgment of the Court, therefore, is to reverse outright on the Fourth Amendment issue. Accordingly, for the reasons set forth above, I respectfully dissent.
| The question before the Court is whether the helicopter surveillance over Riley's property constituted a "search" within the meaning of the Fourth Amendment. Like JUSTICE BRENNAN, JUSTICE MARSHALL, JUSTICE STEVENS, and JUSTICE O'CONNOR, I believe that answering this question depends upon whether Riley has a "reasonable expectation of privacy" that no such surveillance would occur, and does not depend upon the fact that the helicopter was flying at a lawful altitude under FAA regulations. A majority of this Court thus agrees to at least this much. The inquiry then becomes how to determine whether Riley's expectation was a reasonable one. JUSTICE BRENNAN, the two Justices who have joined him, and JUSTICE O'CONNOR all believe that the reasonableness of Riley's expectation depends, in large measure, on the frequency of nonpolice helicopter flights at an altitude of 400 feet. Again, I agree. How is this factual issue to be decided? JUSTICE BRENNAN suggests that we may resolve it ourselves without any evidence in the record on this point. I am wary of this approach. While I, too, suspect that for most American communities it is a rare event when nonpolice helicopters fly over one's curtilage at an altitude of 400 feet, I am not convinced that we should establish a per se rule for the entire Nation based on judicial suspicion alone. See Coffin, Judicial Balancing, 63 N. Y. U. L. Rev. 16, 37 (1988). But we need not abandon our judicial intuition entirely. The opinions of both JUSTICE BRENNAN and JUSTICE O'CONNOR, by their use of "cf." citations, implicitly recognize that none of our prior decisions tells us who has the burden of proving whether Riley's expectation of privacy was reasonable. In the absence of precedent on the point, it is appropriate for us to take into account our estimation of the *468 frequency of nonpolice helicopter flights. See 4 W. LaFave, Search and Seizure 11.2(b), p. 228 (2d ed. 1987) (burdens of proof relevant to Fourth Amendment issues may be based on a judicial estimate of the probabilities involved). Thus, because I believe that private helicopters rarely fly over curtilages at an altitude of 400 feet, I would impose upon the prosecution the burden of proving contrary facts necessary to show that Riley lacked a reasonable expectation of privacy. Indeed, I would establish this burden of proof for any helicopter surveillance case in which the flight occurred below 1,000 feet in other words, for any aerial surveillance case not governed by the Court's decision in In this case, the prosecution did not meet this burden of proof, as JUSTICE BRENNAN notes. This failure should compel a finding that a Fourth Amendment search occurred. But because our prior cases gave the parties little guidance on the burden of proof issue, I would remand this case to allow the prosecution an opportunity to meet this burden. The order of this Court, however, is not to remand the case in this manner. Rather, because JUSTICE O'CONNOR would impose the burden of proof on Riley and because she would not allow Riley an opportunity to meet this burden, she joins the plurality's view that no Fourth Amendment search occurred. The judgment of the Court, therefore, is to reverse outright on the Fourth Amendment issue. Accordingly, for the reasons set forth above, I respectfully dissent. |
Justice Ginsburg | second_dissenting | false | John R. Sand & Gravel Co. v. United States | 2008-01-08T00:00:00 | null | https://www.courtlistener.com/opinion/145838/john-r-sand-gravel-co-v-united-states/ | https://www.courtlistener.com/api/rest/v3/clusters/145838/ | 2,008 | 2007-010 | 1 | 7 | 2 | I agree that adhering to Kendall, Finn, and Soriano is irreconcilable with the reasoning and result in Irwin, and therefore join Justice STEVENS' dissent. I write separately to explain why I would regard this case as an appropriate occasion to revisit those precedents even if we had not already "directly overrule[d]" them. Cf. Irwin v. Department of Veterans Affairs, 498 U.S. 89, 98, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990) (White, J., concurring in part and concurring in judgment).
Stare decisis is an important, but not an inflexible, doctrine in our law. See Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, *760 405, 52 S. Ct. 443, 76 L. Ed. 815 (1932) (Brandeis, J., dissenting) ("Stare decisis is not . . . a universal, inexorable command."). The policies underlying the doctrinestability and predictabilityare at their strongest when the Court is asked to change its mind, though nothing else of significance has changed. See Powell, Stare Decisis and Judicial Restraint, 47 Wash. & Lee L.Rev. 281, 286-287 (1990). As to the matter before us, our perception of the office of a time limit on suits against the Government has changed significantly since the decisions relied upon by the Court. We have recognized that "the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States," Irwin, 498 U.S., at 95-96, 111 S. Ct. 453, and that "limitations principles should generally apply to the Government in the same way that they apply to private parties," Franconia Associates v. United States, 536 U.S. 129, 145, 122 S. Ct. 1993, 153 L. Ed. 2d 132 (2002) (internal quotation marks omitted). See also Scarborough v. Principi, 541 U.S. 401, 420-422, 124 S. Ct. 1856, 158 L. Ed. 2d 674 (2004). It damages the coherence of the law if we cling to outworn precedent at odds with later, more enlightened decisions.
I surely do not suggest that overruling is routinely in order whenever a majority disagrees with a past decision, and I acknowledge that "[c]onsiderations of stare decisis have special force in the area of statutory interpretation," Patterson v. McLean Credit Union, 491 U.S. 164, 172, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989). But concerns we have previously found sufficiently weighty to justify revisiting a statutory precedent counsel strongly in favor of doing so here. First, overruling Kendall v. United States, 107 U.S. 123, 2 S. Ct. 277, 27 L. Ed. 437 (1883), Finn v. United States, 123 U.S. 227, 8 S. Ct. 82, 31 L. Ed. 128 (1887), and Soriano v. United States, 352 U.S. 270, 77 S. Ct. 269, 1 L. Ed. 2d 306 (1957), would, as the Court concedes, see ante, at 756, "achieve a uniform interpretation of similar statutory language," Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (1989). Second, we have recognized the propriety of revisiting a decision when "intervening development of the law" has "removed or weakened [its] conceptual underpinnings." Patterson, 491 U.S., at 173, 109 S. Ct. 2363. Irwin and Franconianot to mention our recent efforts to apply the term "jurisdictional" with greater precision, see, e.g., Arbaugh v. Y & H Corp., 546 U.S. 500, 515-516, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 (2006)have left no tenable basis for Kendall and its progeny.
Third, it is altogether appropriate to overrule a precedent that has become "a positive detriment to coherence and consistency in the law." Patterson, 491 U.S., at 173, 109 S. Ct. 2363. The inconsistency between the Kendall line and Irwin is a source of both theoretical incoherence and practical confusion. For example, 28 U.S.C. § 2401(a) contains a time limit materially identical to the one in § 2501. Courts of Appeals have divided on the question whether § 2401(a)'s limit is "jurisdictional." Compare Center for Biological Diversity v. Hamilton, 453 F.3d 1331, 1334 (C.A.11 2006) (per curiam), with Cedars-Sinai Medical Center v. Shalala, 125 F.3d 765, 770 (C.A.9 1997). See also Harris v. Federal Aviation Admin., 353 F.3d 1006, 1013, n. 7 (C.A.D.C.2004) (recognizing that Irwin may have undermined Circuit precedent holding that § 2401(a) is "jurisdictional"). Today's decision hardly assists lower courts endeavoring to answer this question. While holding that the language in § 2501 is "jurisdictional," the Court also implies that Irwin governs the *761 interpretation of all statutes we have not yet construedincluding, presumably, the identically worded § 2401. See ante, at 756.
Moreover, as the Court implicitly concedes, see ante, at 756-757, the strongest reason to adhere to precedent provides no support for the Kendall-Finn-Soriano line. "Stare decisis has added force when the legislature, in the public sphere, and citizens, in the private realm, have acted in reliance on a previous decision, for in this instance overruling the decision would dislodge settled rights and expectations or require an extensive legislative response." Hilton v. South Carolina Public Railways Comm'n, 502 U.S. 197, 202, 112 S. Ct. 560, 116 L. Ed. 2d 560 (1991). The Government, however, makes no claim that either private citizens or Congress have relied upon the "jurisdictional" status of § 2501. There are thus strong reasons to abandonand notably slim reasons to adhere tothe anachronistic interpretation of § 2501 adopted in Kendall.
Several times, in recent Terms, the Court has discarded statutory decisions rendered infirm by what a majority considered to be better informed opinion. See, e.g., Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. ___, ___, 127 S. Ct. 2705, 2725, 168 L. Ed. 2d 623 (2007) (overruling Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S. Ct. 376, 55 L. Ed. 502 (1911)); Bowles v. Russell, 551 U.S. ___, ___, 127 S. Ct. 2360, 2366-67, 168 L. Ed. 2d 96 (2007) (overruling Thompson v. INS, 375 U.S. 384, 84 S. Ct. 397, 11 L. Ed. 2d 404 (1964) (per curiam), and Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S. Ct. 283, 9 L. Ed. 2d 261 (1962) (per curiam)); Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U.S. 28, 42-43, 126 S. Ct. 1281, 164 L. Ed. 2d 26 (2006) (overruling, inter alia, Morton Salt Co. v. G.S. Suppiger Co., 314 U.S. 488, 62 S. Ct. 402, 86 L. Ed. 363 (1942)); Hohn v. United States, 524 U.S. 236, 253, 118 S. Ct. 1969, 141 L. Ed. 2d 242 (1998) (overruling House v. Mayo, 324 U.S. 42, 65 S. Ct. 517, 89 L. Ed. 739 (1945) (per curiam)). In light of these overrulings, the Court's decision to adhere to Kendall, Finn, and Soriano while offering nothing to justify their reasoning or resultsis, to say the least, perplexing. After today's decision, one will need a crystal ball to predict when this Court will reject, and when it will cling to, its prior decisions interpreting legislative texts.
I would reverse the judgment rendered by the Federal Circuit majority. In accord with dissenting Judge Newman, I would hold that the Court of Appeals had no warrant to declare the petitioner's action time barred.
| I agree that adhering to Kendall, Finn, and Soriano is irreconcilable with the reasoning and result in Irwin, and therefore join Justice STEVENS' dissent. I write separately to explain why I would regard this case as an appropriate occasion to revisit those precedents even if we had not already "directly overrule[d]" them. Cf. Stare decisis is an important, but not an inflexible, doctrine in our law. See ("Stare decisis is not a universal, inexorable command."). The policies underlying the doctrinestability and predictabilityare at their strongest when the Court is asked to change its mind, though nothing else of significance has changed. See Powell, Stare Decisis and Judicial Restraint, 47 Wash. & Lee L.Rev. 281, 286-287 As to the matter before us, our perception of the office of a time limit on suits against the Government has changed significantly since the decisions relied upon by the Court. We have recognized that "the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States," Irwin, 4 U.S., at 95-96, See also It damages the coherence of the law if we cling to outworn precedent at odds with later, more enlightened decisions. I surely do not suggest that overruling is routinely in order whenever a majority disagrees with a past decision, and I acknowledge that "[c]onsiderations of stare decisis have special force in the area of statutory interpretation," (19). But concerns we have previously found sufficiently weighty to justify revisiting a statutory precedent counsel strongly in favor of doing so here. First, overruling and would, as the Court concedes, see ante, at 756, "achieve a uniform interpretation of similar statutory language," Rodriguez de (19). Second, we have recognized the propriety of revisiting a decision when "intervening development of the law" has "removed or weakened [its] conceptual underpinnings." have left no tenable basis for Kendall and its progeny. Third, it is altogether appropriate to overrule a precedent that has become "a positive detriment to coherence and consistency in the law." The inconsistency between the Kendall line and Irwin is a source of both theoretical incoherence and practical confusion. For example, (a) contains a time limit materially identical to the one in 2501. Courts of Appeals have divided on the question whether 2401(a)'s limit is "jurisdictional." Compare Center for Biological with Cedars-Sinai Medical See also (recognizing that Irwin may have undermined Circuit precedent holding that 2401(a) is "jurisdictional"). Today's decision hardly assists lower courts endeavoring to answer this question. While holding that the language in 2501 is "jurisdictional," the Court also implies that Irwin governs the *761 interpretation of all statutes we have not yet construedincluding, presumably, the identically worded 2401. See ante, at 756. Moreover, as the Court implicitly concedes, see ante, at 756-757, the strongest reason to adhere to precedent provides no support for the Kendall-Finn-Soriano line. "Stare decisis has added force when the legislature, in the public sphere, and citizens, in the private realm, have acted in reliance on a previous decision, for in this instance overruling the decision would dislodge settled rights and expectations or require an extensive legislative response." The Government, however, makes no claim that either private citizens or Congress have relied upon the "jurisdictional" status of 2501. There are thus strong reasons to abandonand notably slim reasons to adhere tothe anachronistic interpretation of 2501 adopted in Kendall. Several times, in recent Terms, the Court has discarded statutory decisions rendered infirm by what a majority considered to be better informed opinion. See, e.g., Leegin Creative Leather Products, ; and Harris Truck Lines, ); Illinois Tool Works ; (19) ). In light of these overrulings, the Court's decision to adhere to Kendall, Finn, and Soriano while offering nothing to justify their reasoning or resultsis, to say the least, perplexing. After today's decision, one will need a crystal ball to predict when this Court will reject, and when it will cling to, its prior decisions interpreting legislative texts. I would reverse the judgment rendered by the Federal Circuit majority. In accord with dissenting Judge Newman, I would hold that the Court of Appeals had no warrant to declare the petitioner's action time barred. |
Justice O'Connor | concurring | false | United States v. Carlton | 1994-06-13T00:00:00 | null | https://www.courtlistener.com/opinion/117846/united-states-v-carlton/ | https://www.courtlistener.com/api/rest/v3/clusters/117846/ | 1,994 | 1993-067 | 2 | 9 | 0 | The unamended 26 U.S. C. § 2057, which allowed taxpayers to reduce the taxable estate by buying securities and reselling them to employee stock ownership plans (ESOP's), made it possible to avoid estate taxes by structuring transactions in a certain way. But the tax laws contain many such provisions. See, e. g., 26 U.S. C. § 2055 (allowing deductions from taxable estate for transfers to the government, charities, and religious organizations). And § 2057 was only the latest in a series of congressional efforts to promote ESOP's by providing tax incentives. See, e. g., 26 U.S. C. § 133 (partial income tax exclusion for interest paid to banks on ESOP loans); 26 U.S. C. § 1042 (allowing certain taxpayers to defer capital gains taxes on sale of securities to ESOP's).
Thus, although respondent Carlton may have made a "purely tax-motivated stock transfe[r]," ante, at 32, I do not understand the Court to express any normative disapproval of this course of action. As executor of Willametta Day's estate, it was entirely appropriate for Carlton to seek to reduce the estate taxes. And like all taxpayers, Carlton was entitled to structure the estate's affairs to comply with the tax laws while minimizing tax liability. As Learned Hand observed with characteristic acerbity:
*36 "[A] transaction, otherwise within an exception of the tax law, does not lose its immunity, because it is actuated by a desire to avoid, or, if one choose, to evade, taxation. Any one may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one's taxes. Therefore, if what was done here, was what was intended by [the statute], it is of no consequence that it was all an elaborate scheme to get rid of [estate] taxes, as it certainly was." Helvering v. Gregory, 69 F.2d 809, 810 (CA2 1934) (citations omitted), aff'd, 293 U.S. 465 (1935).
To say that Carlton did nothing wrong in claiming the deduction does not, of course, answer the question whether Congress deprived him of due process by amending § 2057. As we have noted, "the retroactive aspects of economic legislation, as well as the prospective aspects, must meet the test of due process: a legitimate legislative purpose furthered by rational means." General Motors Corp. v. Romein, 503 U.S. 181, 191 (1992) (internal quotation marks omitted).
The Court finds it relevant that, according to prominent members of the tax-writing committees of each House, the statute as originally enacted would have cost the Government too much money and would have allowed taxpayers to avoid tax by engaging in sham transactions. See ante, at 31-32. Thus, the Court reasons that the amendment to § 2057 served the legislative purpose of "correct[ing]" a "mistake" Congress made the first time. Ante, at 32. But this mode of analysis proves too much. Every law touching on an area in which Congress has previously legislated can be said to serve the legislative purpose of fixing a perceived problem with the prior state of affairsthere is no reason to pass a new law, after all, if the legislators are satisfied with the old one. Moreover, the subjective motivation of Members of Congress in passing a statuteto the extent it can *37 even be knownis irrelevant in this context: It is sufficient for due process analysis if there exists some legitimate purpose underlying the retroactivity provision. Cf. FCC v. Beach Communications, Inc., 508 U.S. 307, 313-315 (1993).
Retroactive application of revenue measures is rationally related to the legitimate governmental purpose of raising revenue. In enacting revenue measures, retroactivity allows "the legislative body, in the revision of tax laws, to distribute increased costs of government among its taxpayers in the light of present need for revenue and with knowledge of the sources and amounts of the various classes of taxable income during the taxable period preceding revision." Welch v. Henry, 305 U.S. 134, 149 (1938). For this reason,
"[i]n enacting general revenue statutes, Congress almost without exception has given each such statute an effective date prior to the date of actual enactment. . . . Usually the `retroactive' feature has application only to that portion of the current calendar year preceding the date of enactment, but [some statutes have been] applicable to an entire calendar year that had expired preceding enactment. This `retroactive' application apparently has been confined to short and limited periods required by the practicalities of producing national legislation. We may safely say that it is a customary congressional practice." United States v. Darusmont, 449 U.S. 292, 296-297 (1981) (per curiam).
But "the Court has never intimated that Congress possesses unlimited power to `readjust rights and burdens . . . and upset otherwise settled expectations.' " Connolly v. Pension Benefit Guaranty Corporation, 475 U.S. 211, 229 (1986) (O'Connor, J., concurring) (brackets omitted), quoting Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16 (1976). The governmental interest in revising the tax laws must at some point give way to the taxpayer's interest in finality and *38 repose. For example, a "wholly new tax" cannot be imposed retroactively, United States v. Hemme, 476 U.S. 558, 568 (1986), even though such a tax would surely serve to raise money. Because the tax consequences of commercial transactions are a relevant, and sometimes dispositive, consideration in a taxpayer's decisions regarding the use of his capital, it is arbitrary to tax transactions that were not subject to taxation at the time the taxpayer entered into them. See Welch v. Henry, supra, at 147.
Although there is also an element of arbitrariness in retroactively changing the rate of tax to which the transaction is subject, or the availability of a deduction for engaging in that transaction, our cases have recognized that Congress must be able to make such adjustments in an attempt to equalize actual revenue and projected budgetary requirements. In every case in which we have upheld a retroactive federal tax statute against due process challenge, however, the law applied retroactively for only a relatively short period prior to enactment. See United States v. Hemme, supra, at 562 (1 month); United States v. Darusmont, supra, at 294-295 (10 months); United States v. Hudson, 299 U.S. 498, 501 (1937) (1 month). In Welch v. Henry, supra, the tax was enacted in 1935 to reach transactions completed in 1933; but we emphasized that the state legislature met only biannually and it made the revision "at the first opportunity after the tax year in which the income was received." 305 U.S., at 151. A period of retroactivity longer than the year preceding the legislative session in which the law was enacted would raise, in my view, serious constitutional questions. But in keeping with Congress' practice of limiting the retroactive effect of revenue measures (a practice that may reflect Congress' sensitivity to the due process problems that would be raised by overreaching), the December 1987 amendment to § 2057 was made retroactive only to October 1986. Given our precedents and the limited period of retroactivity, I concur *39 in the judgment of the Court that applying the amended statute to respondent Carlton did not violate due process.
Justice Scalia, with whom Justice Thomas joins, concurring in the judgment.
If I thought that "substantive due process" were a constitutional right rather than an oxymoron, I would think it violated by bait-and-switch taxation. Although there is not much precision in the concept "`harsh and oppressive,' " which is what the Court has adopted as its test of substantive due process unconstitutionality in the field of retroactive tax legislation, see, e. g., United States v. Hemme, 476 U.S. 558, 568-569 (1986), quoting Welch v. Henry, 305 U.S. 134, 147 (1938), surely it would cover a retroactive amendment that cost a taxpayer who relied on the original statute's clear meaning over $600,000. Unlike the tax at issue in Hemme, here the amendment "without notice, . . .gives a different and more oppressive legal effect to conduct undertaken before enactment of the statute." 476 U.S., at 569.
The Court attempts to minimize the amendment's harshness by characterizing it as "a curative measure," quoting some post-legislation legislative history (another oxymoron) to show that, despite the uncontested plain meaning of the statute, Congress never meant it to apply to stock that was not owned by the decedent at the time of death. See ante, at 31-32. I am not sure that whether Congress has treated a citizen oppressively should turn upon whether the oppression was, after all, only Congress' "curing" of its own mistake. Even if it should, however, what was done to respondent here went beyond a "cure." The retroactivity not only hit him with the tax that Congress "meant" to impose originally, but it caused his expenditures incurred in invited reliance upon the earlier law to become worthless. That could have been avoided, of course, by providing a tax credit for such expenditures. Retroactively disallowing the tax benefit *40 that the earlier law offered, without compensating those who incurred expenses in accepting that offer, seems to me harsh and oppressive by any normal measure.
The Court seeks to distinguish our precedents invalidating retroactive taxes by pointing out that they involved the imposition of new taxes rather than a change in tax rates. See ante, at 34. But eliminating the specifically promised reward for costly action after the action has been taken, and refusing to reimburse the cost, is even more harsh and oppressive, it seems to me, than merely imposing a new tax on past actions. The Court also attempts to soften the impact of the amendment by noting that it involved only "a modest period of retroactivity." Ante, at 32. But in the case of a tax-incentive provision, as opposed to a tax on a continuous activity (like the earning of income), the critical event is the taxpayer's reliance on the incentive, and the key timing issue is whether the change occurs after the reliance; that it occurs immediately after rather than long after renders it no less harsh.
The reasoning the Court applies to uphold the statute in this case guarantees that all retroactive tax laws will henceforth be valid. To pass constitutional muster the retroactive aspects of the statute need only be "rationally related to a legitimate legislative purpose." Ante, at 35. Revenue raising is certainly a legitimate legislative purpose, see U. S. Const., Art. I, § 8, cl. 1, and any law that retroactively adds a tax, removes a deduction, or increases a rate rationally furthers that goal. I welcome this recognition that the Due Process Clause does not prevent retroactive taxes, since I believe that the Due Process Clause guarantees no substantive rights, but only (as it says) process, see TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 470-471 (1993) (Scalia, J., concurring in judgment).
I cannot avoid observing, however, two stark discrepancies between today's due process reasoning and the due process reasoning the Court applies to its identification of new socalled *41 fundamental rights, such as the right to structure family living arrangements, see Moore v. East Cleveland, 431 U.S. 494 (1977) (plurality opinion), and the right to an abortion, see Roe v. Wade, 410 U.S. 113 (1973). First and most obviously, where respondent's claimed right to hold onto his property is at issue, the Court upholds the tax amendment because it rationally furthers a legitimate interest; whereas when other claimed rights that the Court deems fundamental are at issue, the Court strikes down laws that concededly promote legitimate interests, id ., at 150, 162. Secondly, when it is pointed out that the Court's retroactive-tax ruling today is inconsistent with earlier decisions, see, e. g., Nichols v. Coolidge, 274 U.S. 531 (1927); Blodgett v. Holden, 275 U.S. 142 (1927); Untermyer v. Anderson, 276 U.S. 440 (1928), the Court dismisses those cases as having been "decided during an era characterized by exacting review of economic legislation under an approach that `has long since been discarded.' " Ante, at 34, quoting Ferguson v. Skrupa, 372 U.S. 726, 730 (1963). But economic legislation was not the only legislation subjected to "exacting review" in those bad old days, and one wonders what principled reason justifies "discarding" that bad old approach only as to that category. For the Court continues to rely upon "exacting review" cases of the Nichols-Blodgett-Untermyer vintage for its due process "fundamental rights" jurisprudence. See, e. g., Roe, supra, at 152-153, 159 (citing Meyer v. Nebraska, 262 U.S. 390, 399 (1923), and Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925)); see also Griswold v. Connecticut, 381 U.S. 479, 483 (1965) ("[W]e reaffirm the principle of the Pierce and the Meyer cases").
The picking and choosing among various rights to be accorded "substantive due process" protection is alone enough to arouse suspicion; but the categorical and inexplicable exclusion of so-called "economic rights" (even though the Due Process Clause explicitly applies to "property") unquestionably involves policymaking rather than neutral legal analysis. *42 I would follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away.
| The unamended 26 U.S. C. 2057, which allowed taxpayers to reduce the taxable estate by buying securities and reselling them to employee stock ownership plans (ESOP's), made it possible to avoid estate taxes by structuring transactions in a certain way. But the tax laws contain many such provisions. See, e. g., 26 U.S. C. 2055 (allowing deductions from taxable estate for transfers to the government, charities, and religious organizations). And 2057 was only the latest in a series of congressional efforts to promote ESOP's by providing tax incentives. See, e. g., 26 U.S. C. 133 (partial income tax exclusion for interest paid to banks on ESOP loans); 26 U.S. C. 1042 (allowing certain taxpayers to defer capital gains taxes on sale of securities to ESOP's). Thus, although respondent Carlton may have made a "purely tax-motivated stock transfe[r]," ante, at 32, I do not understand the Court to express any normative disapproval of this course of action. As executor of Willametta Day's estate, it was entirely appropriate for Carlton to seek to reduce the estate taxes. And like all taxpayers, Carlton was entitled to structure the estate's affairs to comply with the tax laws while minimizing tax liability. As Learned Hand observed with characteristic acerbity: *36 "[A] transaction, otherwise within an exception of the tax law, does not lose its immunity, because it is actuated by a desire to avoid, or, if one choose, to evade, taxation. Any one may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one's taxes. Therefore, if what was done here, was what was intended by [the statute], it is of no consequence that it was all an elaborate scheme to get rid of [estate] taxes, as it certainly was." aff'd, To say that Carlton did nothing wrong in claiming the deduction does not, of course, answer the question whether Congress deprived him of due process by amending 2057. As we have noted, "the retroactive aspects of economic legislation, as well as the prospective aspects, must meet the test of due process: a legitimate legislative purpose furthered by rational means." General Motors The Court finds it relevant that, according to prominent members of the tax-writing committees of each House, the statute as originally enacted would have cost the Government too much money and would have allowed taxpayers to avoid tax by engaging in sham transactions. See ante, at 31-32. Thus, the Court reasons that the amendment to 2057 served the legislative purpose of "correct[ing]" a "mistake" Congress made the first time. Ante, at 32. But this mode of analysis proves too much. Every law touching on an area in which Congress has previously legislated can be said to serve the legislative purpose of fixing a perceived problem with the prior state of affairsthere is no reason to pass a new law, after all, if the legislators are satisfied with the old one. Moreover, the subjective motivation of Members of Congress in passing a statuteto the extent it can *37 even be knownis irrelevant in this context: It is sufficient for due process analysis if there exists some legitimate purpose underlying the retroactivity provision. Cf. Retroactive application of revenue measures is rationally related to the legitimate governmental purpose of raising revenue. In enacting revenue measures, retroactivity allows "the legislative body, in the revision of tax laws, to distribute increased costs of government among its taxpayers in the light of present need for revenue and with knowledge of the sources and amounts of the various classes of taxable income during the taxable period preceding revision." For this reason, "[i]n enacting general revenue statutes, Congress almost without exception has given each such statute an effective date prior to the date of actual enactment. Usually the `retroactive' feature has application only to that portion of the current calendar year preceding the date of enactment, but [some statutes have been] applicable to an entire calendar year that had expired preceding enactment. This `retroactive' application apparently has been confined to short and limited periods required by the practicalities of producing national legislation. We may safely say that it is a customary congressional practice." United But "the Court has never intimated that Congress possesses unlimited power to `readjust rights and burdens and upset otherwise settled expectations.' " (brackets omitted), quoting The governmental interest in revising the tax laws must at some point give way to the taxpayer's interest in finality and *38 repose. For example, a "wholly new tax" cannot be imposed retroactively, United even though such a tax would surely serve to raise money. Because the tax consequences of commercial transactions are a relevant, and sometimes dispositive, consideration in a taxpayer's decisions regarding the use of his capital, it is arbitrary to tax transactions that were not subject to taxation at the time the taxpayer entered into them. See Although there is also an element of arbitrariness in retroactively changing the rate of tax to which the transaction is subject, or the availability of a deduction for engaging in that transaction, our cases have recognized that Congress must be able to make such adjustments in an attempt to equalize actual revenue and projected budgetary requirements. In every case in which we have upheld a retroactive federal tax statute against due process challenge, however, the law applied retroactively for only a relatively short period prior to enactment. See United ; United ; United In the tax was enacted in 1935 to reach transactions completed in 1933; but we emphasized that the state legislature met only biannually and it made the revision "at the first opportunity after the tax year in which the income was received." A period of retroactivity longer than the year preceding the legislative session in which the law was enacted would raise, in my view, serious constitutional questions. But in keeping with Congress' practice of limiting the retroactive effect of revenue measures (a practice that may reflect Congress' sensitivity to the due process problems that would be raised by overreaching), the December 1987 amendment to 2057 was made retroactive only to October 1986. Given our precedents and the limited period of retroactivity, I concur *39 in the judgment of the Court that applying the amended statute to respondent Carlton did not violate due process. Justice Scalia, with whom Justice Thomas joins, concurring in the judgment. If I thought that "substantive due process" were a constitutional right rather than an oxymoron, I would think it violated by bait-and-switch taxation. Although there is not much precision in the concept "`harsh and oppressive,' " which is what the Court has adopted as its test of substantive due process unconstitutionality in the field of retroactive tax legislation, see, e. g., United -569 quoting surely it would cover a retroactive amendment that cost a taxpayer who relied on the original statute's clear meaning over $600,000. Unlike the tax at issue in here the amendment "without notice,gives a different and more oppressive legal effect to conduct undertaken before enactment of the statute." The Court attempts to minimize the amendment's harshness by characterizing it as "a curative measure," quoting some post-legislation legislative history (another oxymoron) to show that, despite the uncontested plain meaning of the statute, Congress never meant it to apply to stock that was not owned by the decedent at the time of death. See ante, at 31-32. I am not sure that whether Congress has treated a citizen oppressively should turn upon whether the oppression was, after all, only Congress' "curing" of its own mistake. Even if it should, however, what was done to respondent here went beyond a "cure." The retroactivity not only hit him with the tax that Congress "meant" to impose originally, but it caused his expenditures incurred in invited reliance upon the earlier law to become worthless. That could have been avoided, of course, by providing a tax credit for such expenditures. Retroactively disallowing the tax benefit *40 that the earlier law offered, without compensating those who incurred expenses in accepting that offer, seems to me harsh and oppressive by any normal measure. The Court seeks to distinguish our precedents invalidating retroactive taxes by pointing out that they involved the imposition of new taxes rather than a change in tax rates. See ante, at 34. But eliminating the specifically promised reward for costly action after the action has been taken, and refusing to reimburse the cost, is even more harsh and oppressive, it seems to me, than merely imposing a new tax on past actions. The Court also attempts to soften the impact of the amendment by noting that it involved only "a modest period of retroactivity." Ante, at 32. But in the case of a tax-incentive provision, as opposed to a tax on a continuous activity (like the earning of income), the critical event is the taxpayer's reliance on the incentive, and the key timing issue is whether the change occurs after the reliance; that it occurs immediately after rather than long after renders it no less harsh. The reasoning the Court applies to uphold the statute in this case guarantees that all retroactive tax laws will henceforth be valid. To pass constitutional muster the retroactive aspects of the statute need only be "rationally related to a legitimate legislative purpose." Ante, at 35. Revenue raising is certainly a legitimate legislative purpose, see U. S. Const., Art. I, 8, cl. 1, and any law that retroactively adds a tax, removes a deduction, or increases a rate rationally furthers that goal. I welcome this recognition that the Due Process Clause does not prevent retroactive taxes, since I believe that the Due Process Clause guarantees no substantive rights, but only (as it says) process, see TXO Production I cannot avoid observing, however, two stark discrepancies between today's due process reasoning and the due process reasoning the Court applies to its identification of new socalled *41 fundamental rights, such as the right to structure family living arrangements, see and the right to an abortion, see First and most obviously, where respondent's claimed right to hold onto his property is at issue, the Court upholds the tax amendment because it rationally furthers a legitimate interest; whereas when other claimed rights that the Court deems fundamental are at issue, the Court strikes down laws that concededly promote legitimate interests, id, at 150, 2. Secondly, when it is pointed out that the Court's retroactive-tax ruling today is inconsistent with earlier decisions, see, e. g., ; ; the Court dismisses those cases as having been "decided during an era characterized by exacting review of economic legislation under an approach that `has long since been discarded.' " Ante, at 34, quoting But economic legislation was not the only legislation subjected to "exacting review" in those bad old days, and one wonders what principled reason justifies "discarding" that bad old approach only as to that category. For the Court continues to rely upon "exacting review" cases of the Nichols-Blodgett-Untermyer vintage for its due process "fundamental rights" jurisprudence. See, e. g., 159 and ); see also The picking and choosing among various rights to be accorded "substantive due process" protection is alone enough to arouse suspicion; but the categorical and inexplicable exclusion of so-called "economic rights" (even though the Due Process Clause explicitly applies to "property") unquestionably involves policymaking rather than neutral legal analysis. *42 I would follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away. |
Justice Sotomayor | majority | false | Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc. | 2020-05-19T00:00:00 | null | https://www.courtlistener.com/opinion/4754908/lucky-brand-dungarees-inc-v-marcel-fashions-group-inc/ | https://www.courtlistener.com/api/rest/v3/clusters/4754908/ | 2,020 | null | null | null | null | This case arises from protracted litigation between peti-
tioners Lucky Brand Dungarees, Inc., and others (collec-
tively Lucky Brand) and respondent Marcel Fashions
Group, Inc. (Marcel). In the latest lawsuit between the two,
Lucky Brand asserted a defense against Marcel that it had
not pressed fully in a preceding suit between the parties.
This Court is asked to determine whether Lucky Brand’s
failure to litigate the defense in the earlier suit barred
Lucky Brand from invoking it in the later suit. Because the
parties agree that, at a minimum, the preclusion of such a
defense in this context requires that the two suits share the
same claim to relief—and because we find that the two suits
here did not—Lucky Brand was not barred from raising its
defense in the later action.
I
Marcel and Lucky Brand both sell jeans and other ap-
parel. Both entities also use the word “Lucky” as part of
their marks on clothing. In 1986, Marcel received a federal
trademark registration for “Get Lucky”; a few years later,
2 LUCKY BRAND DUNGAREES, INC. v.
MARCEL FASHIONS GROUP, INC.
Opinion of the Court
in 1990, Lucky Brand began selling apparel using the reg-
istered trademark “Lucky Brand” and other marks that in-
clude the word “Lucky.” 779 F.3d 102, 105 (CA2 2015).
Three categories of marks are at issue in this case: Mar-
cel’s “Get Lucky” mark; Lucky Brand’s “Lucky Brand”
mark; and various other marks owned by Lucky Brand that
contain the word “Lucky.” These trademarks have led to
nearly 20 years of litigation between the two companies,
proceeding in three rounds.
A
In 2001—the first round—Marcel sued Lucky Brand, al-
leging that Lucky Brand’s use of the phrase “Get Lucky” in
advertisements infringed Marcel’s trademark. In 2003, the
parties signed a settlement agreement. As part of the deal,
Lucky Brand agreed to stop using the phrase “Get Lucky.”
App. 191. In exchange, Marcel agreed to release any claims
regarding Lucky Brand’s use of its own trademarks. Id., at
191–192.
B
The ink was barely dry on the settlement agreement
when, in 2005, the parties began a second round of litiga-
tion (2005 Action). Lucky Brand filed suit, alleging that
Marcel and its licensee violated its trademarks by copying
its designs and logos in a new clothing line. As relevant
here, Marcel filed several counterclaims that all turned, in
large part, on Lucky Brand’s alleged continued use of “Get
Lucky”: One batch of allegations asserted that Lucky Brand
had continued to use Marcel’s “Get Lucky” mark in viola-
tion of the settlement agreement, while others alleged that
Lucky Brand’s use of the phrase “Get Lucky” and “Lucky
Brand” together was “confusingly similar to”—and thus in-
fringed––Marcel’s “Get Lucky” mark. Defendants’ Answer,
Affirmative Defenses, and Counterclaims to Plaintiffs’
Complaint in No. 1:05–cv–06757 (SDNY), Doc. 40–2, p. 39;
Cite as: 590 U. S. ____ (2020) 3
Opinion of the Court
see id., at 34–41. None of Marcel’s counterclaims alleged
that Lucky Brand’s use of its own marks alone—i.e., inde-
pendent of any alleged use of “Get Lucky”—infringed Mar-
cel’s “Get Lucky” mark.
Lucky Brand moved to dismiss the counterclaims, alleg-
ing that they were barred by the release provision of the
settlement agreement. After the District Court denied the
motion without prejudice, Lucky Brand noted the release
defense once more in its answer to Marcel’s counterclaims.
But as the 2005 Action proceeded, Lucky Brand never again
invoked the release defense.
The 2005 Action concluded in two phases. First, as a
sanction for misconduct during discovery, the District
Court concluded that Lucky Brand violated the settlement
agreement by continuing to use “Get Lucky” and perma-
nently enjoined Lucky Brand from copying or imitating
Marcel’s “Get Lucky” mark. Order Granting Partial Sum-
mary Judgment and Injunction in No. 1:05–cv–06757, Doc.
183; see also App. 203–204. The injunction did not enjoin,
or even mention, Lucky Brand’s use of any other marks or
phrases containing the word “Lucky.” Order Granting Par-
tial Summary Judgment and Injunction, Doc. 183. The case
then proceeded to trial. The jury found against Lucky
Brand on Marcel’s remaining counterclaims—those that al-
leged infringement from Lucky Brand’s continued use of the
“Get Lucky” catchphrase alongside its own marks. See
Brief for Respondent 52.
C
In April 2011, the third round of litigation began: Marcel
filed an action against Lucky Brand (2011 Action), main-
taining that Lucky Brand continued to infringe Marcel’s
“Get Lucky” mark and, in so doing, contravened the judg-
ment issued in the 2005 Action.
This complaint did not reprise Marcel’s earlier allegation
(in the 2005 Action) that Lucky Brand continued to use the
4 LUCKY BRAND DUNGAREES, INC. v.
MARCEL FASHIONS GROUP, INC.
Opinion of the Court
“Get Lucky” phrase. Marcel argued only that Lucky
Brand’s continued, post-2010 use of Lucky Brand’s own
marks—some of which used the word “Lucky”—infringed
Marcel’s “Get Lucky” mark in a manner that (according to
Marcel) was previously found infringing.1 Marcel requested
that the District Court enjoin Lucky Brand from using any
of Lucky Brand’s marks containing the word “Lucky.”
The District Court granted Lucky Brand summary judg-
ment, concluding that Marcel’s claims in the 2011 Action
were essentially the same as its counterclaims in the 2005
Action.
But the Court of Appeals for the Second Circuit disa-
greed. 779 F.3d 102. The court concluded that Marcel’s
claims in the 2011 Action were distinct from those it had
asserted in the 2005 Action, because the claims at issue in
the 2005 Action were “for earlier infringements.” Id., at
110. As the court noted, “[w]inning a judgment . . . does not
deprive the plaintiff of the right to sue” for the defendant’s
“subsequent similar violations.” Id., at 107.
The Second Circuit further rejected Marcel’s request to
hold Lucky Brand in contempt for violating the injunction
issued in the 2005 Action. The court noted that the conduct
at issue in the 2011 Action was Lucky Brand’s use of its own
marks—not the use of the phrase “Get Lucky.” By contrast,
the 2005 injunction prohibited Lucky Brand from using the
“Get Lucky” mark—not Lucky Brand’s own marks that hap-
pened to contain the word “Lucky.” Id., at 111. Moreover,
the court reasoned that the jury in the 2005 Action had been
——————
1 See Complaint for Injunctive Relief and Trademark Infringement in
No. 1:11–cv–05523 (SDNY), Doc. 1, ¶15 (“Despite the entry of the [2005
Action judgment], [Lucky Brand] ha[s] continued to willfully . . . infringe
[Marcel’s] GET LUCKY mark by using the Lucky Brand marks in the
identical manner and form and on the same goods for which [it] w[as]
found liable for infringement”); id., ¶20 (“Despite the entry of the” 2005
Action judgment, Lucky Brand has “continued its uninterrupted and
willful use of the Lucky Brand marks and any other trademarks includ-
ing the word ‘Lucky’ ”).
Cite as: 590 U. S. ____ (2020) 5
Opinion of the Court
“free to find infringement of Marcel’s ‘Get Lucky’ mark
based solely on Lucky Brand’s use of [the phrase] ‘Get
Lucky.’ ” Id., at 112. The court vacated and remanded for
further proceedings.
On remand to the District Court, Lucky Brand moved to
dismiss, arguing—for the first time since its motion to dis-
miss and answer in the 2005 Action—that Marcel had re-
leased its claims by entering the settlement agreement.
Marcel countered that Lucky Brand was precluded from in-
voking the release defense, because it could have pursued
the defense fully in the 2005 Action but had neglected to do
so. The District Court granted Lucky Brand’s motion to dis-
miss, holding that it could assert its release defense and
that the settlement agreement indeed barred Marcel’s
claims.
The Second Circuit vacated and remanded, concluding
that a doctrine it termed “defense preclusion” prohibited
Lucky Brand from raising the release defense in the 2011
Action. 898 F.3d 232 (2018). Noting that a different cate-
gory of preclusion—issue preclusion—may be wielded
against a defendant, see Parklane Hosiery Co. v. Shore, 439
U.S. 322 (1979), the court reasoned that the same should
be true of claim preclusion: A defendant should be pre-
cluded from raising an unlitigated defense that it should
have raised earlier. The panel then held that “defense pre-
clusion” bars a party from raising a defense where: “(i) a
previous action involved an adjudication on the merits”; “(ii)
the previous action involved the same parties”; “(iii) the de-
fense was either asserted or could have been asserted, in
the prior action”; and “(iv) the district court, in its discre-
tion, concludes that preclusion of the defense is appropri-
ate.” 898 F.3d, at 241. Finding each factor satisfied in this
case, the panel vacated the District Court’s judgment. We
granted certiorari, 588 U. S. ___ (2019), to resolve differ-
ences among the Circuits regarding when, if ever, claim
6 LUCKY BRAND DUNGAREES, INC. v.
MARCEL FASHIONS GROUP, INC.
Opinion of the Court
preclusion applies to defenses raised in a later suit. Com-
pare 898 F.3d, at 241, with Hallco Mfg. Co. v. Foster, 256
F.3d 1290, 1297–1298 (CA Fed. 2001); McKinnon v. Blue
Cross and Blue Shield of Alabama, 935 F.2d 1187, 1192
(CA11 1991).
II
A
This case asks whether so-called “defense preclusion” is a
valid application of res judicata: a term that now comprises
two distinct doctrines regarding the preclusive effect of
prior litigation. 18 C. Wright, A. Miller, & E. Cooper, Fed-
eral Practice and Procedure §4402 (3d ed. 2016) (Wright &
Miller). The first is issue preclusion (sometimes called col-
lateral estoppel), which precludes a party from relitigating
an issue actually decided in a prior case and necessary to
the judgment. Allen v. McCurry, 449 U.S. 90, 94 (1980);
see Parklane Hosiery, 439 U.S., at 326, n. 5.
The second doctrine is claim preclusion (sometimes itself
called res judicata). Unlike issue preclusion, claim preclu-
sion prevents parties from raising issues that could have
been raised and decided in a prior action—even if they were
not actually litigated. If a later suit advances the same
claim as an earlier suit between the same parties, the ear-
lier suit’s judgment “prevents litigation of all grounds for,
or defenses to, recovery that were previously available to
the parties, regardless of whether they were asserted or de-
termined in the prior proceeding.” Brown v. Felsen, 442
U.S. 127, 131 (1979); see also Wright & Miller §4407. Suits
involve the same claim (or “cause of action”) when they
“ ‘aris[e] from the same transaction,’ ” United States v.
Tohono O’odham Nation, 563 U.S. 307, 316 (2011) (quoting
Kremer v. Chemical Constr. Corp., 456 U.S. 461, 482, n. 22
(1982)), or involve a “common nucleus of operative facts,”
Restatement (Second) of Judgments §24, Comment b, p. 199
(1982) (Restatement (Second)).
Cite as: 590 U. S. ____ (2020) 7
Opinion of the Court
Put another way, claim preclusion “describes the rules
formerly known as ‘merger’ and ‘bar.’ ” Taylor v. Sturgell,
553 U.S. 880, 892, n. 5 (2008). “If the plaintiff wins, the
entire claim is merged in the judgment; the plaintiff cannot
bring a second independent action for additional relief, and
the defendant cannot avoid the judgment by offering new
defenses.” Wright & Miller §4406. But “[i]f the second law-
suit involves a new claim or cause of action, the parties may
raise assertions or defenses that were omitted from the first
lawsuit even though they were equally relevant to the first
cause of action.” Ibid.
As the Second Circuit itself seemed to recognize, see 898
F.3d, at 236–237, this Court has never explicitly recognized
“defense preclusion” as a standalone category of res judi-
cata, unmoored from the two guideposts of issue preclusion
and claim preclusion. Instead, our case law indicates that
any such preclusion of defenses must, at a minimum, sat-
isfy the strictures of issue preclusion or claim preclusion.
See, e.g., Davis v. Brown, 94 U.S. 423, 428 (1877) (holding
that where two lawsuits involved different claims, preclu-
sion operates “only upon the matter actually at issue and
determined in the original action”).2 The parties thus agree
that where, as here, issue preclusion does not apply, a de-
fense can be barred only if the “causes of action are the
——————
2 There may be good reasons to question any application of claim pre-
clusion to defenses. It has been noted that in suits involving successive
claims against the same defendant, courts often “assum[e] that the de-
fendant may raise defenses in the second action that were not raised in
the first, even though they were equally available and relevant in both
actions.” Wright & Miller §4414. This is because “[v]arious considera-
tions, other than actual merits, may govern” whether to bring a defense,
“such as the smallness of the amount or the value of the property in con-
troversy, the difficulty of obtaining the necessary evidence, the expense
of the litigation, and [a party’s] own situation.” Cromwell v. County of
Sac, 94 U.S. 351, 356 (1877). Here, however, this Court need not deter-
mine when (if ever) applying claim preclusion to defenses may be appro-
priate, because a necessary predicate—identity of claims—is lacking.
8 LUCKY BRAND DUNGAREES, INC. v.
MARCEL FASHIONS GROUP, INC.
Opinion of the Court
same” in the two suits—that is, where they share a “ ‘com-
mon nucleus of operative fact[s].’ ” Brief for Respondent 2,
27, 31, 50; accord, Reply Brief 3.
B
Put simply, the two suits here were grounded on different
conduct, involving different marks, occurring at different
times. They thus did not share a “common nucleus of oper-
ative facts.” Restatement (Second) §24, Comment b, at 199.
To start, claims to relief may be the same for the purposes
of claim preclusion if, among other things, “ ‘a different
judgment in the second action would impair or destroy
rights or interests established by the judgment entered in
the first action.’ ” Wright & Miller §4407. Here, however,
the 2011 Action did not imperil the judgment of the 2005
Action because the lawsuits involved both different conduct
and different trademarks.
In the 2005 Action, Marcel alleged that Lucky Brand in-
fringed Marcel’s “Get Lucky” mark both by directly imitat-
ing its “Get Lucky” mark and by using the “Get Lucky” slo-
gan alongside Lucky Brand’s other marks in a way that
created consumer confusion. Brief for Respondent 52. Mar-
cel appears to admit, thus, that its claims in the 2005 Action
depended on Lucky Brand’s alleged use of “Get Lucky.” Id.,
at 9–10 (“Marcel’s reverse-confusion theory [in the 2005 Ac-
tion] depended, in part, on Lucky’s continued imitation of
the GET LUCKY mark”).
By contrast, the 2011 Action did not involve any alleged
use of the “Get Lucky” phrase. Indeed, Lucky Brand had
been enjoined in the 2005 Action from using “Get Lucky,”
and in the 2011 Action, Lucky Brand was found not to have
violated that injunction. 779 F.3d, at 111–112. The parties
thus do not argue that Lucky Brand continued to use “Get
Lucky” after the 2005 Action concluded, and at oral argu-
ment, counsel for Marcel appeared to confirm that Marcel’s
claims in the 2011 Action did not allege that Lucky Brand
Cite as: 590 U. S. ____ (2020) 9
Opinion of the Court
continued to use “Get Lucky.” Tr. of Oral Arg. 46. Instead,
Marcel alleged in the 2011 Action that Lucky Brand com-
mitted infringement by using Lucky Brand’s own marks
containing the word “Lucky”—not the “Get Lucky” mark it-
self. Plainly, then, the 2011 Action challenged different
conduct, involving different marks.
Not only that, but the complained-of conduct in the 2011
Action occurred after the conclusion of the 2005 Action.
Claim preclusion generally “does not bar claims that are
predicated on events that postdate the filing of the initial
complaint.” Whole Woman’s Health v. Hellerstedt, 579 U. S.
___, ___ (2016) (slip op., at 12) (internal quotation marks
omitted); Lawlor v. National Screen Service Corp., 349 U.S.
322, 327–328 (1955) (holding that two suits were not “based
on the same cause of action,” because “[t]he conduct pres-
ently complained of was all subsequent to” the prior judg-
ment and it “cannot be given the effect of extinguishing
claims which did not even then exist and which could not
possibly have been sued upon in the previous case”). This
is for good reason: Events that occur after the plaintiff files
suit often give rise to new “[m]aterial operative facts” that
“in themselves, or taken in conjunction with the antecedent
facts,” create a new claim to relief. Restatement (Second)
§24, Comment f, at 203; 18 J. Moore, D. Coquillette, G. Jo-
seph, G. Vairo, & C. Varner, Federal Practice §131.22[1], p.
131–55, n. 1 (3d ed. 2019) (citing cases where “[n]ew facts
create[d a] new claim”).
This principle takes on particular force in the trademark
context, where the enforceability of a mark and likelihood
of confusion between marks often turns on extrinsic facts
that change over time. As Lucky Brand points out, liability
for trademark infringement turns on marketplace realities
that can change dramatically from year to year. Brief for
Petitioners 42–45. It is no surprise, then, that the Second
Circuit held that Marcel’s 2011 Action claims were not
barred by the 2005 Action. By the same token, the 2005
10 LUCKY BRAND DUNGAREES, INC. v.
MARCEL FASHIONS GROUP, INC.
Opinion of the Court
Action could not bar Lucky Brand’s 2011 defenses.
At bottom, the 2011 Action involved different marks, dif-
ferent legal theories, and different conduct—occurring at
different times. Because the two suits thus lacked a “com-
mon nucleus of operative facts,” claim preclusion did not
and could not bar Lucky Brand from asserting its settle-
ment agreement defense in the 2011 Action.
III
Resisting this conclusion, Marcel points to treatises and
this Court’s cases, arguing that they support a version of
“defense preclusion” doctrine that extends to the facts of
this case. Brief for Respondent 24–26. But these authori-
ties do no such thing. As an initial matter, regardless of
what those authorities might imply about “defense preclu-
sion,” none of them describe scenarios applicable here.
Moreover, we doubt that these authorities stand for any-
thing more than that traditional claim- or issue-preclusion
principles may bar defenses raised in a subsequent suit—
principles that, as explained above, do not bar Lucky
Brand’s release defense here.
Take, for example, cases that involve either judgment en-
forcement or a collateral attack on a prior judgment. Id., at
26–35. In the former scenario, a party takes action to en-
force a prior judgment already issued against another; in
the latter, a party seeks to avoid the effect of a prior judg-
ment by bringing a suit to undo it. If, in either situation, a
different outcome in the second action “would nullify the in-
itial judgment or would impair rights established in the in-
itial action,” preclusion principles would be at play. Re-
statement (Second) §22(b), at 185; Wright & Miller §4414.
In both scenarios, courts simply apply claim preclusion or
issue preclusion to prohibit a claim or defense that would
Cite as: 590 U. S. ____ (2020) 11
Opinion of the Court
attack a previously decided claim.3 But these principles do
not preclude defendants from asserting defenses to new
claims, which is precisely what Marcel would have us do
here.
In any event, judgment-enforcement and collateral-at-
tack scenarios are far afield from the circumstances of this
case. Lucky Brand’s defense in the 2011 Action did not
threaten the judgment issued in the 2005 Action or, as Mar-
cel argues, “achieve the same practical result” that the
above-mentioned principles seek to avoid. Brief for Re-
spondent 31–32. Indeed, while the judgment in the 2005
Action plainly prohibited Lucky Brand from using “Get
Lucky,” it did not do the same with respect to Lucky Brand’s
continued, standalone use of its own marks containing the
word “Lucky”—the only conduct at issue in the 2011 Action.
Put simply, Lucky Brand’s defense to new claims in the
2011 Action did not risk impairing the 2005 judgment.
Nor do cases like Beloit v. Morgan, 7 Wall. 619 (1869), aid
Marcel. See Brief for Respondent 32–33. To be sure, Beloit
held that a defendant in a second suit over bonds “of the
same issue” was precluded from raising a defense it had not
raised in the first suit. 7 Wall., at 620. But the Court there
——————
3 One might ask: If any preclusion of defenses (under the claim-preclu-
sion rubric) requires identity of claims in two suits, how could the second
similar suit have avoided standard claim preclusion in the first place?
Different contexts may yield different answers. In a judgment-enforce-
ment context, the answer may be that claim preclusion applies only “to
a final judgment rendered in an action separate from that in which the
doctrine is asserted.” 18 J. Moore, D. Coquillette, G. Joseph, G. Vairo, &
C. Varner, Federal Practice §131.31[1], p. 131–116 (3d ed. 2019) (empha-
sis added). Thus—although claim preclusion does apply to a later,
standalone suit seeking relief that could have been obtained in the first—
it “is not applicable to . . . efforts to obtain supplemental relief in the
original action, or direct attacks on the judgment.” Ibid (footnote de-
leted). The upshot is that—even if a court deems the underlying core of
operative facts to be the same—a plaintiff in that circumstance is not
precluded from enforcing its rights with respect to continuing wrongful
conduct.
12 LUCKY BRAND DUNGAREES, INC. v.
MARCEL FASHIONS GROUP, INC.
Opinion of the Court
explained that the judgment in the first suit “established
conclusively the original validity of the securities described
in the bill, and the liability of the town to pay them.” Id.,
at 623. In other words, by challenging the validity of all
bonds of the same issue, the defense in the second suit
would have threatened the validity of the judgment in the
first suit. The same cannot be said of the defense raised in
the 2011 Action vis-à-vis the judgment in the 2005 Action.
* * *
At bottom, Marcel’s 2011 Action challenged different con-
duct—and raised different claims—from the 2005 Action.
Under those circumstances, Marcel cannot preclude Lucky
Brand from raising new defenses. The judgment of the Sec-
ond Circuit is therefore reversed, and the case is remanded
for proceedings consistent with this opinion.
It is so ordered | This case arises from protracted litigation between peti- tioners Lucky Brand Dungarees, Inc., and others (collec- tively Lucky Brand) and respondent Marcel Fashions Group, Inc. (Marcel). In the latest lawsuit between the two, Lucky Brand asserted a defense against Marcel that it had not pressed fully in a preceding suit between the parties. This Court is asked to determine whether Lucky Brand’s failure to litigate the defense in the earlier suit barred Lucky Brand from invoking it in the later Because the parties agree that, at a minimum, the preclusion of such a defense in this context requires that the two suits share the same claim to relief—and because we find that the two suits here did not—Lucky Brand was not barred from raising its defense in the later action. I Marcel and Lucky Brand both sell jeans and other ap- l. Both entities also use the word “Lucky” as part of their marks on clothing. In 1986, Marcel received a federal trademark registration for “Get Lucky”; a few years later, 2 LUCKY BRAND DUNGAREES, INC. v. MARCEL FASHIONS GROUP, INC. Opinion of the Court in 1990, Lucky Brand began selling apl using the reg- istered trademark “Lucky Brand” and other marks that in- clude the word “Lucky.” Three categories of marks are at issue in this case: Mar- cel’s “Get Lucky” mark; Lucky Brand’s “Lucky Brand” mark; and various other marks owned by Lucky Brand that contain the word “Lucky.” These trademarks have led to nearly 20 years of litigation between the two companies, proceeding in three rounds. A In 2001—the first round—Marcel sued Lucky Brand, al- leging that Lucky Brand’s use of the phrase “Get Lucky” in advertisements infringed Marcel’s trademark. In 2003, the parties signed a settlement agreement. As part of the deal, Lucky Brand agreed to stop using the phrase “Get Lucky.” App. 191. In exchange, Marcel agreed to release any claims regarding Lucky Brand’s use of its own trademarks. at 191–192. B The ink was barely dry on the settlement agreement when, in 2005, the parties began a second round of litiga- tion (2005 Action). Lucky Brand filed suit, alleging that Marcel and its licensee violated its trademarks by copying its designs and logos in a new clothing line. As relevant here, Marcel filed several counterclaims that all turned, in large part, on Lucky Brand’s alleged continued use of “Get Lucky”: One batch of allegations asserted that Lucky Brand had continued to use Marcel’s “Get Lucky” mark in viola- tion of the settlement agreement, while others alleged that Lucky Brand’s use of the phrase “Get Lucky” and “Lucky Brand” together was “confusingly similar to”—and thus in- fringed––Marcel’s “Get Lucky” mark. Defendants’ Answer, Affirmative Defenses, and Counterclaims to Plaintiffs’ Complaint in No. 1:05–cv–06757 (SDNY), Doc. 40–2, p. 39; Cite as: 590 U. S. (2020) 3 Opinion of the Court see at 34–41. None of Marcel’s counterclaims alleged that Lucky Brand’s use of its own marks alone—i.e., inde- pendent of any alleged use of “Get Lucky”—infringed Mar- cel’s “Get Lucky” mark. Lucky Brand moved to dismiss the counterclaims, alleg- ing that they were barred by the release provision of the settlement agreement. After the District Court denied the motion without prejudice, Lucky Brand noted the release defense once more in its answer to Marcel’s counterclaims. But as the 2005 Action proceeded, Lucky Brand never again invoked the release defense. The 2005 Action concluded in two phases. First, as a sanction for misconduct during discovery, the District Court concluded that Lucky Brand violated the settlement agreement by continuing to use “Get Lucky” and perma- nently enjoined Lucky Brand from copying or imitating Marcel’s “Get Lucky” mark. Order Granting Partial Sum- mary Judgment and Injunction in No. 1:05–cv–06757, Doc. 183; see also App. 203–204. The injunction did not enjoin, or even mention, Lucky Brand’s use of any other marks or phrases containing the word “Lucky.” Order Granting Par- tial Summary Judgment and Injunction, Doc. 183. The case then proceeded to trial. The jury found against Lucky Brand on Marcel’s remaining counterclaims—those that al- leged infringement from Lucky Brand’s continued use of the “Get Lucky” catchphrase alongside its own marks. See Brief for Respondent 52. C In April 2011, the third round of litigation began: Marcel filed an action against Lucky Brand (2011 Action), main- taining that Lucky Brand continued to infringe Marcel’s “Get Lucky” mark and, in so doing, contravened the judg- ment issued in the 2005 Action. This complaint did not reprise Marcel’s earlier allegation (in the 2005 Action) that Lucky Brand continued to use the 4 LUCKY BRAND DUNGAREES, INC. v. MARCEL FASHIONS GROUP, INC. Opinion of the Court “Get Lucky” phrase. Marcel argued only that Lucky Brand’s continued, post-2010 use of Lucky Brand’s own marks—some of which used the word “Lucky”—infringed Marcel’s “Get Lucky” mark in a manner that (according to Marcel) was previously found infringing.1 Marcel requested that the District Court enjoin Lucky Brand from using any of Lucky Brand’s marks containing the word “Lucky.” The District Court granted Lucky Brand summary judg- ment, concluding that Marcel’s claims in the 2011 Action were essentially the same as its counterclaims in the 2005 Action. But the Court of Appeals for the Second Circuit disa- greed. The court concluded that Marcel’s claims in the 2011 Action were distinct from those it had asserted in the 2005 Action, because the claims at issue in the 2005 Action were “for earlier infringements.” at 110. As the court noted, “[w]inning a judgment does not deprive the plaintiff of the right to sue” for the defendant’s “subsequent similar violations.” The Second Circuit further rejected Marcel’s request to hold Lucky Brand in contempt for violating the injunction issued in the 2005 Action. The court noted that the conduct at issue in the 2011 Action was Lucky Brand’s use of its own marks—not the use of the phrase “Get Lucky.” By contrast, the 2005 injunction prohibited Lucky Brand from using the “Get Lucky” mark—not Lucky Brand’s own marks that hap- pened to contain the word “Lucky.” Moreover, the court reasoned that the jury in the 2005 Action had been —————— 1 See Complaint for Injunctive Relief and Trademark Infringement in No. 1:11–cv–05523 (SDNY), Doc. 1, ¶15 (“Despite the entry of the [2005 Action judgment], [Lucky Brand] ha[s] continued to willfully infringe [Marcel’s] GET LUCKY mark by using the Lucky Brand marks in the identical manner and form and on the same goods for which [it] w[as] found liable for infringement”); (“Despite the entry of the” 2005 Action judgment, Lucky Brand has “continued its uninterrupted and willful use of the Lucky Brand marks and any other trademarks includ- ing the word ‘Lucky’ ”). Cite as: 590 U. S. (2020) 5 Opinion of the Court “free to find infringement of Marcel’s ‘Get Lucky’ mark based solely on Lucky Brand’s use of [the phrase] ‘Get Lucky.’ ” The court vacated and remanded for further proceedings. On remand to the District Court, Lucky Brand moved to dismiss, arguing—for the first time since its motion to dis- miss and answer in the 2005 Action—that Marcel had re- leased its claims by entering the settlement agreement. Marcel countered that Lucky Brand was precluded from in- voking the release defense, because it could have pursued the defense fully in the 2005 Action but had neglected to do so. The District Court granted Lucky Brand’s motion to dis- miss, holding that it could assert its release defense and that the settlement agreement indeed barred Marcel’s claims. The Second Circuit vacated and remanded, concluding that a doctrine it termed “defense preclusion” prohibited Lucky Brand from raising the release defense in the 2011 Action. Noting that a different cate- gory of preclusion—issue preclusion—may be wielded against a defendant, see Parklane Co. v. Shore, 439 U.S. 322 (1979), the court reasoned that the same should be true of claim preclusion: A defendant should be pre- cluded from raising an unlitigated defense that it should have raised earlier. The panel then held that “defense pre- clusion” bars a party from raising a defense where: “(i) a previous action involved an adjudication on the merits”; “(ii) the previous action involved the same parties”; “(iii) the de- fense was either asserted or could have been asserted, in the prior action”; and “(iv) the district court, in its discre- tion, concludes that preclusion of the defense is appropri- ate.” Finding each factor satisfied in this case, the panel vacated the District Court’s judgment. We granted certiorari, 588 U. S. (2019), to resolve differ- ences among the Circuits regarding when, if ever, claim 6 LUCKY BRAND DUNGAREES, INC. v. MARCEL FASHIONS GROUP, INC. Opinion of the Court preclusion applies to defenses raised in a later Com- with Hallco Mfg. Co. v. Foster, 256 F.3d 1290, 1297–1298 (CA Fed. 2001); (CA11 1991). II A This case asks whether so-called “defense preclusion” is a valid application of res judicata: a term that now comprises two distinct doctrines regarding the preclusive effect of prior litigation. 18 C. Wright, A. Miller, & E. Cooper, Fed- eral Practice and Procedure (3d ed. 2016) (Wright & Miller). The first is issue preclusion (sometimes called col- lateral estoppel), which precludes a party from relitigating an issue actually decided in a prior case and necessary to the judgment. ; see Parklane n. 5. The second doctrine is claim preclusion (sometimes itself called res judicata). Unlike issue preclusion, claim preclu- sion prevents parties from raising issues that could have been raised and decided in a prior action—even if they were not actually litigated. If a later suit advances the same claim as an earlier suit between the same parties, the ear- lier suit’s judgment “prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or de- termined in the prior proceeding.” Brown v. Felsen, 442 U.S. 127, 131 (1979); see also Wright & Miller Suits involve the same claim (or “cause of action”) when they “ ‘aris[e] from the same transaction,’ ” United States v. Tohono O’odham Nation, (quoting (1982)), or involve a “common nucleus of operative facts,” Restatement (Second) of Judgments Comment b, p. 199 (1982) (Restatement (Second)). Cite as: 590 U. S. (2020) 7 Opinion of the Court Put another way, claim preclusion “describes the rules formerly known as ‘merger’ and ‘bar.’ ” “If the plaintiff wins, the entire claim is merged in the judgment; the plaintiff cannot bring a second independent action for additional relief, and the defendant cannot avoid the judgment by offering new defenses.” Wright & Miller But “[i]f the second law- suit involves a new claim or cause of action, the parties may raise assertions or defenses that were omitted from the first lawsuit even though they were equally relevant to the first cause of action.” As the Second Circuit itself seemed to recognize, see 898 F.3d, at 236–237, this Court has never explicitly recognized “defense preclusion” as a standalone category of res judi- cata, unmoored from the two guideposts of issue preclusion and claim preclusion. Instead, our case law indicates that any such preclusion of defenses must, at a minimum, sat- isfy the strictures of issue preclusion or claim preclusion. See, e.g., U.S. 423, (holding that where two lawsuits involved different claims, preclu- sion operates “only upon the matter actually at issue and determined in the original action”).2 The parties thus agree that where, as here, issue preclusion does not apply, a de- fense can be barred only if the “causes of action are the —————— 2 There may be good reasons to question any application of claim pre- clusion to defenses. It has been noted that in suits involving successive claims against the same defendant, courts often “assum[e] that the de- fendant may raise defenses in the second action that were not raised in the first, even though they were equally available and relevant in both actions.” Wright & Miller This is because “[v]arious considera- tions, other than actual merits, may govern” whether to bring a defense, “such as the smallness of the amount or the value of the property in con- troversy, the difficulty of obtaining the necessary evidence, the expense of the litigation, and [a party’s] own situation.” U.S. 351, Here, however, this Court need not deter- mine when (if ever) applying claim preclusion to defenses may be appro- priate, because a necessary predicate—identity of claims—is lacking. 8 LUCKY BRAND DUNGAREES, INC. v. MARCEL FASHIONS GROUP, INC. Opinion of the Court same” in the two suits—that is, where they share a “ ‘com- mon nucleus of operative fact[s].’ ” Brief for Respondent 2, 27, 31, 50; accord, Reply Brief 3. B Put simply, the two suits here were grounded on different conduct, involving different marks, occurring at different times. They thus did not share a “common nucleus of oper- ative facts.” Restatement (Second) Comment b, at 199. To start, claims to relief may be the same for the purposes of claim preclusion if, among other things, “ ‘a different judgment in the second action would impair or destroy rights or interests established by the judgment entered in the first action.’ ” Wright & Miller Here, however, the 2011 Action did not imperil the judgment of the 2005 Action because the lawsuits involved both different conduct and different trademarks. In the 2005 Action, Marcel alleged that Lucky Brand in- fringed Marcel’s “Get Lucky” mark both by directly imitat- ing its “Get Lucky” mark and by using the “Get Lucky” slo- gan alongside Lucky Brand’s other marks in a way that created consumer confusion. Brief for Respondent 52. Mar- cel appears to admit, thus, that its claims in the 2005 Action depended on Lucky Brand’s alleged use of “Get Lucky.” at 9–10 (“Marcel’s reverse-confusion theory [in the 2005 Ac- tion] depended, in part, on Lucky’s continued imitation of the GET LUCKY mark”). By contrast, the 2011 Action did not involve any alleged use of the “Get Lucky” phrase. Indeed, Lucky Brand had been enjoined in the 2005 Action from using “Get Lucky,” and in the 2011 Action, Lucky Brand was found not to have violated that 779 F.3d, –112. The parties thus do not argue that Lucky Brand continued to use “Get Lucky” after the 2005 Action concluded, and at oral argu- ment, counsel for Marcel appeared to confirm that Marcel’s claims in the 2011 Action did not allege that Lucky Brand Cite as: 590 U. S. (2020) 9 Opinion of the Court continued to use “Get Lucky.” Tr. of Oral Arg. 46. Instead, Marcel alleged in the 2011 Action that Lucky Brand com- mitted infringement by using Lucky Brand’s own marks containing the word “Lucky”—not the “Get Lucky” mark it- self. Plainly, then, the 2011 Action challenged different conduct, involving different marks. Not only that, but the complained-of conduct in the 2011 Action occurred after the conclusion of the 2005 Action. Claim preclusion generally “does not bar claims that are predicated on events that postdate the filing of the initial complaint.” Whole Woman’s Health v. Hellerstedt, 579 U. S. (2016) (slip op., at 12) (internal quotation marks omitted); Lawlor v. National Screen Service Corp., 349 U.S. 322, 327–328 (1955) (holding that two suits were not “based on the same cause of action,” because “[t]he conduct pres- ently complained of was all subsequent to” the prior judg- ment and it “cannot be given the effect of extinguishing claims which did not even then exist and which could not possibly have been sued upon in the previous case”). This is for good reason: Events that occur after the plaintiff files suit often give rise to new “[m]aterial operative facts” that “in themselves, or taken in conjunction with the antecedent facts,” create a new claim to relief. Restatement (Second) Comment f, at 203; 18 J. Moore, D. Coquillette, G. Jo- seph, G. Vairo, & C. Varner, Federal Practice p. 131–55, n. 1 (3d ed. 2019) (citing cases where “[n]ew facts create[d a] new claim”). This principle takes on particular force in the trademark context, where the enforceability of a mark and likelihood of confusion between marks often turns on extrinsic facts that change over time. As Lucky Brand points out, liability for trademark infringement turns on marketplace realities that can change dramatically from year to year. Brief for Petitioners 42–45. It is no surprise, then, that the Second Circuit held that Marcel’s 2011 Action claims were not barred by the 2005 Action. By the same token, the 2005 10 LUCKY BRAND DUNGAREES, INC. v. MARCEL FASHIONS GROUP, INC. Opinion of the Court Action could not bar Lucky Brand’s 2011 defenses. At bottom, the 2011 Action involved different marks, dif- ferent legal theories, and different conduct—occurring at different times. Because the two suits thus lacked a “com- mon nucleus of operative facts,” claim preclusion did not and could not bar Lucky Brand from asserting its settle- ment agreement defense in the 2011 Action. III Resisting this conclusion, Marcel points to treatises and this Court’s cases, arguing that they support a version of “defense preclusion” doctrine that extends to the facts of this case. Brief for Respondent 24–26. But these authori- ties do no such thing. As an initial matter, regardless of what those authorities might imply about “defense preclu- sion,” none of them describe scenarios applicable here. Moreover, we doubt that these authorities stand for any- thing more than that traditional claim- or issue-preclusion principles may bar defenses raised in a subsequent suit— principles that, as explained above, do not bar Lucky Brand’s release defense here. Take, for example, cases that involve either judgment en- forcement or a collateral attack on a prior judgment. at 26–35. In the former scenario, a party takes action to en- force a prior judgment already issued against another; in the latter, a party seeks to avoid the effect of a prior judg- ment by bringing a suit to undo it. If, in either situation, a different outcome in the second action “would nullify the in- itial judgment or would impair rights established in the in- itial action,” preclusion principles would be at play. Re- statement (Second) at 185; Wright & Miller In both scenarios, courts simply apply claim preclusion or issue preclusion to prohibit a claim or defense that would Cite as: 590 U. S. (2020) 11 Opinion of the Court attack a previously decided claim.3 But these principles do not preclude defendants from asserting defenses to new claims, which is precisely what Marcel would have us do here. In any event, judgment-enforcement and collateral-at- tack scenarios are far afield from the circumstances of this case. Lucky Brand’s defense in the 2011 Action did not threaten the judgment issued in the 2005 Action or, as Mar- cel argues, “achieve the same practical result” that the above-mentioned principles seek to avoid. Brief for Re- spondent 31–32. Indeed, while the judgment in the 2005 Action plainly prohibited Lucky Brand from using “Get Lucky,” it did not do the same with respect to Lucky Brand’s continued, standalone use of its own marks containing the word “Lucky”—the only conduct at issue in the 2011 Action. Put simply, Lucky Brand’s defense to new claims in the 2011 Action did not risk impairing the 2005 judgment. Nor do cases like aid Marcel. See Brief for Respondent 32–33. To be sure, Beloit held that a defendant in a second suit over bonds “of the same issue” was precluded from raising a defense it had not raised in the first But the Court there —————— 3 One might ask: If any preclusion of defenses (under the claim-preclu- sion rubric) requires identity of claims in two suits, how could the second similar suit have avoided standard claim preclusion in the first place? Different contexts may yield different answers. In a judgment-enforce- ment context, the answer may be that claim preclusion applies only “to a final judgment rendered in an action separate from that in which the doctrine is asserted.” 18 J. Moore, D. Coquillette, G. Joseph, G. Vairo, & C. Varner, Federal Practice p. 131–116 (3d ed. 2019) (empha- sis added). Thus—although claim preclusion does apply to a later, standalone suit seeking relief that could have been obtained in the first— it “is not applicable to efforts to obtain supplemental relief in the original action, or direct attacks on the judgment.” Ibid (footnote de- leted). The upshot is that—even if a court deems the underlying core of operative facts to be the same—a plaintiff in that circumstance is not precluded from enforcing its rights with respect to continuing wrongful conduct. 12 LUCKY BRAND DUNGAREES, INC. v. MARCEL FASHIONS GROUP, INC. Opinion of the Court explained that the judgment in the first suit “established conclusively the original validity of the securities described in the bill, and the liability of the town to pay them.” at 623. In other words, by challenging the validity of all bonds of the same issue, the defense in the second suit would have threatened the validity of the judgment in the first The same cannot be said of the defense raised in the 2011 Action vis-à-vis the judgment in the 2005 Action. * * * At bottom, Marcel’s 2011 Action challenged different con- duct—and raised different claims—from the 2005 Action. Under those circumstances, Marcel cannot preclude Lucky Brand from raising new defenses. The judgment of the Sec- ond Circuit is therefore reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered |
Justice Burger | majority | false | Bowsher v. Synar | 1986-07-07T00:00:00 | null | https://www.courtlistener.com/opinion/111756/bowsher-v-synar/ | https://www.courtlistener.com/api/rest/v3/clusters/111756/ | 1,986 | 1985-162 | 3 | 7 | 2 | The question presented by these appeals is whether the assignment by Congress to the Comptroller General of the United States of certain functions under the Balanced Budget and Emergency Deficit Control Act of 1985 violates the doctrine of separation of powers.
I
A
On December 12, 1985, the President signed into law the Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. 99-177, 99 Stat. 1038, 2 U.S. C. § 901 et seq. (1982 ed., Supp. III), popularly known as the "Gramm-Rudman-Hollings Act." The purpose of the Act is to eliminate the federal budget deficit. To that end, the Act sets a "maximum deficit amount" for federal spending for each of fiscal years 1986 through 1991. The size of that maximum deficit amount progressively reduces to zero in fiscal year 1991. If in any fiscal year the federal budget deficit exceeds the maximum *718 deficit amount by more than a specified sum, the Act requires across-the-board cuts in federal spending to reach the targeted deficit level, with half of the cuts made to defense programs and the other half made to nondefense programs. The Act exempts certain priority programs from these cuts. § 255.
These "automatic" reductions are accomplished through a rather complicated procedure, spelled out in § 251, the so-called "reporting provisions" of the Act. Each year, the Directors of the Office of Management and Budget (OMB) and the Congressional Budget Office (CBO) independently estimate the amount of the federal budget deficit for the upcoming fiscal year. If that deficit exceeds the maximum targeted deficit amount for that fiscal year by more than a specified amount, the Directors of OMB and CBO independently calculate, on a program-by-program basis, the budget reductions necessary to ensure that the deficit does not exceed the maximum deficit amount. The Act then requires the Directors to report jointly their deficit estimates and budget reduction calculations to the Comptroller General.
The Comptroller General, after reviewing the Directors' reports, then reports his conclusions to the President. § 251(b). The President in turn must issue a "sequestration" order mandating the spending reductions specified by the Comptroller General. § 252. There follows a period during which Congress may by legislation reduce spending to obviate, in whole or in part, the need for the sequestration order. If such reductions are not enacted, the sequestration order becomes effective and the spending reductions included in that order are made.
Anticipating constitutional challenge to these procedures, the Act also contains a "fallback" deficit reduction process to take effect "[i]n the event that any of the reporting procedures described in section 251 are invalidated." § 274(f). Under these provisions, the report prepared by the Directors of OMB and the CBO is submitted directly to a specially *719 created Temporary Joint Committee on Deficit Reduction, which must report in five days to both Houses a joint resolution setting forth the content of the Directors' report. Congress then must vote on the resolution under special rules, which render amendments out of order. If the resolution is passed and signed by the President, it then serves as the basis for a Presidential sequestration order.
B
Within hours of the President's signing of the Act,[1] Congressman Synar, who had voted against the Act, filed a complaint seeking declaratory relief that the Act was unconstitutional. Eleven other Members later joined Congressman Synar's suit. A virtually identical lawsuit was also filed by the National Treasury Employees Union. The Union alleged that its members had been injured as a result of the Act's automatic spending reduction provisions, which have suspended certain cost-of-living benefit increases to the Union's members.[2]
A three-judge District Court, appointed pursuant to 2 U.S. C. § 922(a)(5) (1982 ed., Supp. III), invalidated the reporting provisions. Synar v. United States, 626 F. Supp. 1374 (DC 1986) (Scalia, Johnson, and Gasch, JJ.). The District Court concluded that the Union had standing to challenge the Act since the members of the Union had suffered actual injury by suspension of certain benefit increases. The District Court also concluded that Congressman Synar and his fellow Members had standing under the so-called "congressional standing" doctrine. See Barnes v. Kline, 245 U. S. App. D. C. 1, 21, 759 F.2d 21, 41 (1985), cert. granted sub nom. Burke v. Barnes, 475 U.S. 1044 (1986).
*720 The District Court next rejected appellees' challenge that the Act violated the delegation doctrine. The court expressed no doubt that the Act delegated broad authority, but delegation of similarly broad authority has been upheld in past cases. The District Court observed that in Yakus v. United States, 321 U.S. 414, 420 (1944), this Court upheld a statute that delegated to an unelected "Price Administrator" the power "to promulgate regulations fixing prices of commodities." Moreover, in the District Court's view, the Act adequately confined the exercise of administrative discretion. The District Court concluded that "the totality of the Act's standards, definitions, context, and reference to past administrative practice provides an adequate `intelligible principle' to guide and confine administrative decision making." 626 F. Supp., at 1389.
Although the District Court concluded that the Act survived a delegation doctrine challenge, it held that the role of the Comptroller General in the deficit reduction process violated the constitutionally imposed separation of powers. The court first explained that the Comptroller General exercises executive functions under the Act. However, the Comptroller General, while appointed by the President with the advice and consent of the Senate, is removable not by the President but only by a joint resolution of Congress or by impeachment. The District Court reasoned that this arrangement could not be sustained under this Court's decisions in Myers v. United States, 272 U.S. 52 (1926), and Humphrey's Executor v. United States, 295 U.S. 602 (1935). Under the separation of powers established by the Framers of the Constitution, the court concluded, Congress may not retain the power of removal over an officer performing executive functions. The congressional removal power created a "here-and-now subservience" of the Comptroller General to Congress. 626 F. Supp., at 1392. The District Court therefore held that
*721 "since the powers conferred upon the Comptroller General as part of the automatic deficit reduction process are executive powers, which cannot constitutionally be exercised by an officer removable by Congress, those powers cannot be exercised and therefore the automatic deficit reduction process to which they are are central cannot be implemented." Id., at 1403.
Appeals were taken directly to this Court pursuant to § 274(b) of the Act. We noted probable jurisdiction and expedited consideration of the appeals. 475 U.S. 1009 (1986). We affirm.
II
A threshold issue is whether the Members of Congress, members of the National Treasury Employees Union, or the Union itself have standing to challenge the constitutionality of the Act in question. It is clear that members of the Union, one of whom is an appellee here, will sustain injury by not receiving a scheduled increase in benefits. See § 252(a)(6)(C)(i); 626 F. Supp., at 1381. This is sufficient to confer standing under § 274(a)(2) and Article III. We therefore need not consider the standing issue as to the Union or Members of Congress. See Secretary of Interior v. California, 464 U.S. 312, 319, n. 3 (1984). Cf. Automobile Workers v. Brock, 477 U.S. 274 (1986); Barnes v. Kline, supra. Accordingly, we turn to the merits of the case.
III
We noted recently that "[t]he Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial." INS v. Chadha, 462 U.S. 919, 951 (1983). The declared purpose of separating and dividing the powers of government, of course, was to "diffus[e] power the better to secure liberty." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). Justice Jackson's words echo the famous warning of Montesquieu, *722 quoted by James Madison in The Federalist No. 47, that " `there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates'. . . ." The Federalist No. 47, p. 325 (J. Cooke ed. 1961).
Even a cursory examination of the Constitution reveals the influence of Montesquieu's thesis that checks and balances were the foundation of a structure of government that would protect liberty. The Framers provided a vigorous Legislative Branch and a separate and wholly independent Executive Branch, with each branch responsible ultimately to the people. The Framers also provided for a Judicial Branch equally independent with "[t]he judicial Power . . . extend[ing] to all Cases, in Law and Equity, arising under this Constitution, and the Laws of the United States." Art. III, § 2.
Other, more subtle, examples of separated powers are evident as well. Unlike parliamentary systems such as that of Great Britain, no person who is an officer of the United States may serve as a Member of the Congress. Art. I, § 6. Moreover, unlike parliamentary systems, the President, under Article II, is responsible not to the Congress but to the people, subject only to impeachment proceedings which are exercised by the two Houses as representatives of the people. Art. II, § 4. And even in the impeachment of a President the presiding officer of the ultimate tribunal is not a member of the Legislative Branch, but the Chief Justice of the United States. Art. I, § 3.
That this system of division and separation of powers produces conflicts, confusion, and discordance at times is inherent, but it was deliberately so structured to assure full, vigorous, and open debate on the great issues affecting the people and to provide avenues for the operation of checks on the exercise of governmental power.
The Constitution does not contemplate an active role for Congress in the supervision of officers charged with the execution of the laws it enacts. The President appoints "Officers of the United States" with the "Advice and Consent of *723 the Senate . . . ." Art. II. § 2. Once the appointment has been made and confirmed, however, the Constitution explicitly provides for removal of Officers of the United States by Congress only upon impeachment by the House of Representatives and conviction by the Senate. An impeachment by the House and trial by the Senate can rest only on "Treason, Bribery or other high Crimes and Misdemeanors." Art. II, § 4. A direct congressional role in the removal of officers charged with the execution of the laws beyond this limited one is inconsistent with separation of powers.
This was made clear in debate in the First Congress in 1789. When Congress considered an amendment to a bill establishing the Department of Foreign Affairs, the debate centered around whether the Congress "should recognize and declare the power of the President under the Constitution to remove the Secretary of Foreign Affairs without the advice and consent of the Senate." Myers, 272 U. S., at 114. James Madison urged rejection of a congressional role in the removal of Executive Branch officers, other than by impeachment, saying in debate:
"Perhaps there was no argument urged with more success, or more plausibly grounded against the Constitution, under which we are now deliberating, than that founded on the mingling of the Executive and Legislative branches of the Government in one body. It has been objected, that the Senate have too much of the Executive power even, by having a control over the President in the appointment to office. Now, shall we extend this connection between the Legislative and Executive departments, which will strengthen the objection, and diminish the responsibility we have in the head of the Executive?" 1 Annals of Cong. 380 (1789).
Madison's position ultimately prevailed, and a congressional role in the removal process was rejected. This "Decision of 1789" provides "contemporaneous and weighty evidence" of the Constitution's meaning since many of the Members of the *724 First Congress "had taken part in framing that instrument." Marsh v. Chambers, 463 U.S. 783, 790 (1983).[3]
This Court first directly addressed this issue in Myers v. United States, 272 U.S. 52 (1925). At issue in Myers was a statute providing that certain postmasters could be removed only "by and with the advice and consent of the Senate." The President removed one such Postmaster without Senate approval, and a lawsuit ensued. Chief Justice Taft, writing for the Court, declared the statute unconstitutional on the ground that for Congress to "draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of that power . . . would be . . . to infringe the constitutional principle of the separation of governmental powers." Id., at 161.
A decade later, in Humphrey's Executor v. United States, 295 U.S. 602 (1935), relied upon heavily by appellants, a Federal Trade Commissioner who had been removed by the President sought backpay. Humphrey's Executor involved an issue not presented either in the Myers case or in this case i. e., the power of Congress to limit the President's powers of removal of a Federal Trade Commissioner. 295 *725 U. S. at 630.[4] The relevant statute permitted removal "by the President," but only "for inefficiency, neglect of duty, or malfeasance in office." Justice Sutherland, speaking for the Court, upheld the statute, holding that "illimitable power of removal is not possessed by the President [with respect to Federal Trade Commissioners]." Id., at 628-629. The Court distinguished Myers, reaffirming its holding that congressional participation in the removal of executive officers is unconstitutional. Justice Sutherland's opinion for the Court also underscored the crucial role of separated powers in our system:
"The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others, has often been stressed and is hardly open to serious question. So much is implied in the very fact of the separation of the powers of these departments by the Constitution; and in the rule which recognizes their essential co-equality." 295 U.S., at 629-630.
The Court reached a similar result in Wiener v. United States, 357 U.S. 349 (1958), concluding that, under Humphrey's Executor, the President did not have unrestrained *726 removal authority over a member of the War Claims Commission.
In light of these precedents, we conclude that Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment. To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws. As the District Court observed: "Once an officer is appointed, it is only the authority that can remove him, and not the authority that appointed him, that he must fear and, in the performance of his functions, obey." 626 F. Supp., at 1401. The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess.
Our decision in INS v. Chadha, 462 U.S. 919 (1983), supports this conclusion. In Chadha, we struck down a one-House "legislative veto" provision by which each House of Congress retained the power to reverse a decision Congress had expressly authorized the Attorney General to make:
"Disagreement with the Attorney General's decision on Chadha's deportation that is, Congress' decision to deport Chadha no less than Congress' original choice to delegate to the Attorney General the authority to make that decision, involves determinations of policy that Congress can implement in only one way; bicameral passage followed by presentment to the President. Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked." Id., at 954-955.
To permit an officer controlled by Congress to execute the laws would be, in essence, to permit a congressional veto. Congress could simply remove, or threaten to remove, an officer for executing the laws in any fashion found to be unsatisfactory to Congress. This kind of congressional control over *727 the execution of the laws, Chadha makes clear, is constitutionally impermissible.
The dangers of congressional usurpation of Executive Branch functions have long been recognized. "[T]he debates of the Constitutional Convention, and the Federalist Papers, are replete with expressions of fear that the Legislative Branch of the National Government will aggrandize itself at the expense of the other two branches." Buckley v. Valeo, 424 U.S. 1, 129 (1976). Indeed, we also have observed only recently that "[t]he hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted." Chadha, supra, at 951. With these principles in mind, we turn to consideration of whether the Comptroller General is controlled by Congress.
IV
Appellants urge that the Comptroller General performs his duties independently and is not subservient to Congress. We agree with the District Court that this contention does not bear close scrutiny.
The critical factor lies in the provisions of the statute defining the Comptroller General's office relating to removability.[5] Although the Comptroller General is nominated by the President from a list of three individuals recommended by the Speaker of the House of Representatives and the President pro tempore of the Senate, see 31 U.S. C. *728 § 703(a)(2),[6] and confirmed by the Senate, he is removable only at the initiative of Congress. He may be removed not only by impeachment but also by joint resolution of Congress "at any time" resting on any one of the following bases:
"(i) permanent disability;
"(ii) inefficiency;
"(iii) neglect of duty;
"(iv) malfeasance; or
"(v) a felony or conduct involving moral turpitude."
31 U.S. C. § 703(e)(1)B.[7]
This provision was included, as one Congressman explained in urging passage of the Act, because Congress "felt that [the Comptroller General] should be brought under the sole control of Congress, so that Congress at any moment when it found he was inefficient and was not carrying on the duties of his office as he should and as the Congress expected, could remove him without the long, tedious process of a trial by impeachment." 61 Cong. Rec. 1081 (1921).
The removal provision was an important part of the legislative scheme, as a number of Congressmen recognized. Representative Hawley commented: "[H]e is our officer, in a measure, getting information for us . . . . If he does not do his work properly, we, as practically his employers, ought to be able to discharge him from his office." 58 Cong. Rec. 7136 (1919). Representative Sisson observed that the removal provisions would give "[t]he Congress of the United States . . . absolute control of the man's destiny in office." *729 61 Cong. Rec. 987 (1921). The ultimate design was to "give the legislative branch of the Government control of the audit, not through the power of appointment, but through the power of removal." 58 Cong. Rec. 7211 (1919) (Rep. Temple).
JUSTICE WHITE contends: "The statute does not permit anyone to remove the Comptroller at will; removal is permitted only for specified cause, with the existence of cause to be determined by Congress following a hearing. Any removal under the statute would presumably be subject to post-termination judicial review to ensure that a hearing had in fact been held and that the finding of cause for removal was not arbitrary." Post, at 770. That observation by the dissenter rests on at least two arguable premises: (a) that the enumeration of certain specified causes of removal excludes the possibility of removal for other causes, cf. Shurtleft v. United States, 189 U.S. 311, 315-316 (1903); and (b) that any removal would be subject to judicial review, a position that appellants were unwilling to endorse.[8]
Glossing over these difficulties, the dissent's assessment of the statute fails to recognize the breadth of the grounds for removal. The statute permits removal for "inefficiency," "neglect of duty," or "malfeasance." These terms are very broad and, as interpreted by Congress, could sustain removal of a Comptroller General for any number of actual or perceived transgressions of the legislative will. The Constitutional Convention chose to permit impeachment of executive officers only for "Treason, Bribery, or other high Crimes and Misdemeanors." It rejected language that would have permitted impeachment for "maladministration," with Madison *730 arguing that "[s]o vague a term will be equivalent to a tenure during pleasure of the Senate." 2 M. Farrand, Records of the Federal Convention of 1787, p. 550 (1911).
We need not decide whether "inefficiency" or "malfeasance" are terms as broad as "maladministration" in order to reject the dissent's position that removing the Comptroller General requires "a feat of bipartisanship more difficult than that required to impeach and convict." Post, at 771 (WHITE, J., dissenting). Surely no one would seriously suggest that judicial independence would be strengthened by allowing removal of federal judges only by a joint resolution finding "inefficiency," "neglect of duty," or "malfeasance."
JUSTICE WHITE, however, assures us that "[r]ealistic consideration" of the "practical result of the removal provision," post, at 774, 773, reveals that the Comptroller General is unlikely to be removed by Congress. The separated powers of our Government cannot be permitted to turn on judicial assessment of whether an officer exercising executive power is on good terms with Congress. The Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty. In constitutional terms, the removal powers over the Comptroller General's office dictate that he will be subservient to Congress.
This much said, we must also add that the dissent is simply in error to suggest that the political realities reveal that the Comptroller General is free from influence by Congress. The Comptroller General heads the General Accounting Office (GAO), "an instrumentality of the United States Government independent of the executive departments," 31 U.S. C. § 702(a), which was created by Congress in 1921 as part of the Budget and Accounting Act of 1921, 42 Stat. 23. Congress created the office because it believed that it "needed an officer, responsible to it alone, to check upon the application of public funds in accordance with appropriations." H. Mansfield, *731 The Comptroller General: A Study in the Law and Practice of Financial Administration 65 (1939).
It is clear that Congress has consistently viewed the Comptroller General as an officer of the Legislative Branch. The Reorganization Acts of 1945 and 1949, for example, both stated that the Comptroller General and the GAO are "a part of the legislative branch of the Government." 59 Stat. 616; 63 Stat. 205. Similarly, in the Accounting and Auditing Act of 1950, Congress required the Comptroller General to conduct audits "as an agent of the Congress." 64 Stat. 835.
Over the years, the Comptrollers General have also viewed themselves as part of the Legislative Branch. In one of the early Annual Reports of Comptroller General, the official seal of his office was described as reflecting
"the independence of judgment to be exercised by the General Accounting Office, subject to the control of the legislative branch. . . . The combination represents an agency of the Congress independent of other authority auditing and checking the expenditures of the Government as required by law and subjecting any questions arising in that connection to quasi-judicial determination." GAO Ann. Rep. 5-6 (1924).
Later, Comptroller General Warren, who had been a Member of Congress for 15 years before being appointed Comptroller General, testified: "During most of my public life, . . . I have been a member of the legislative branch. Even now, although heading a great agency, it is an agency of the Congress, and I am an agent of the Congress." To Provide for Reorganizing of Agencies of the Government: Hearings on H. R. 3325 before the House Committee on Expenditures, 79th Cong., 1st Sess., 69 (1945) (emphasis added). And, in one conflict during Comptroller General McCarl's tenure, he asserted his independence of the Executive Branch, stating:
"Congress . . . is . . . the only authority to which there lies an appeal from the decision of this office. . . .
*732 ". . . I may not accept the opinion of any official, inclusive of the Attorney General, as controlling my duty under the law." 2 Comp. Gen. 784, 786-787 (1923) (disregarding conclusion of the Attorney General, 33 Op. Atty. Gen. 476 (1923), with respect to interpretation of compensation statute).
Against this background, we see no escape from the conclusion that, because Congress has retained removal authority over the Comptroller General, he may not be entrusted with executive powers. The remaining question is whether the Comptroller General has been assigned such powers in the Balanced Budget and Emergency Deficit Control Act of 1985.
V
The primary responsibility of the Comptroller General under the instant Act is the preparation of a "report." This report must contain detailed estimates of projected federal revenues and expenditures. The report must also specify the reductions, if any, necessary to reduce the deficit to the target for the appropriate fiscal year. The reductions must be set forth on a program-by-program basis.
In preparing the report, the Comptroller General is to have "due regard" for the estimates and reductions set forth in a joint report submitted to him by the Director of CBO and the Director of OMB, the President's fiscal and budgetary adviser. However, the Act plainly contemplates that the Comptroller General will exercise his independent judgment and evaluation with respect to those estimates. The Act also provides that the Comptroller General's report "shall explain fully any differences between the contents of such report and the report of the Directors." § 251(b)(2).
Appellants suggest that the duties assigned to the Comptroller General in the Act are essentially ministerial and mechanical so that their performance does not constitute "execution of the law" in a meaningful sense. On the contrary, we view these functions as plainly entailing execution *733 of the law in constitutional terms. Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of "execution" of the law. Under § 251, the Comptroller General must exercise judgment concerning facts that affect the application of the Act. He must also interpret the provisions of the Act to determine precisely what budgetary calculations are required. Decisions of that kind are typically made by officers charged with executing a statute.
The executive nature of the Comptroller General's functions under the Act is revealed in § 252(a)(3) which gives the Comptroller General the ultimate authority to determine the budget cuts to be made. Indeed, the Comptroller General commands the President himself to carry out, without the slightest variation (with exceptions not relevant to the constitutional issues presented), the directive of the Comptroller General as to the budget reductions:
"The [Presidential] order must provide for reductions in the manner specified in section 251(a)(3), must incorporate the provisions of the [Comptroller General's] report submitted under section 251(b), and must be consistent with such report in all respects. The President may not modify or recalculate any of the estimates, determinations, specifications, bases, amounts, or percentages set forth in the report submitted under section 251(b) in determining the reductions to be specified in the order with respect to programs, projects, and activities, or with respect to budget activities, within an account. . . ." § 252(a)(3) (emphasis added).
See also § 251(d)(3)(A).
Congress of course initially determined the content of the Balanced Budget and Emergency Deficit Control Act; and undoubtedly the content of the Act determines the nature of the executive duty. However, as Chadha makes clear, once Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution *734 of its enactment only indirectly by passing new legislation. Chadha, 462 U. S., at 958. By placing the responsibility for execution of the Balanced Budget and Emergency Deficit Control Act in the hands of an officer who is subject to removal only by itself, Congress in effect has retained control over the execution of the Act and has intruded into the executive function. The Constitution does not permit such intrusion.
VI
We now turn to the final issue of remedy. Appellants urge that rather than striking down § 251 and invalidating the significant power Congress vested in the Comptroller General to meet a national fiscal emergency, we should take the lesser course of nullifying the statutory provisions of the 1921 Act that authorizes Congress to remove the Comptroller General. At oral argument, counsel for the Comptroller General suggested that this might make the Comptroller General removable by the President. All appellants urge that Congress would prefer invalidation of the removal provisions rather than invalidation of § 251 of the Balanced Budget and Emergency Deficit Control Act.
Severance at this late date of the removal provisions enacted 65 years ago would significantly alter the Comptroller General's office, possibly by making him subservient to the Executive Branch. Recasting the Comptroller General as an officer of the Executive Branch would accordingly alter the balance that Congress had in mind in drafting the Budget and Accounting Act of 1921 and the Balanced Budget and Emergency Deficit Control Act, to say nothing of the wide array of other tasks and duties Congress has assigned the Comptroller General in other statutes.[9] Thus appellants' *735 argument would require this Court to undertake a weighing of the importance Congress attached to the removal provisions in the Budget and Accounting Act of 1921 as well as in other subsequent enactments against the importance it placed on the Balanced Budget and Emergency Deficit Control Act of 1985.
Fortunately this is a thicket we need not enter. The language of the Balanced Budget and Emergency Deficit Control Act itself settles the issue. In § 274(f), Congress has explicitly provided "fallback" provisions in the Act that take effect "[i]n the event . . . any of the reporting procedures described in section 251 are invalidated." § 274(f)(1) (emphasis added). The fallback provisions are " `fully operative as a law,' " Buckley v. Valeo, 424 U. S., at 108 (quoting Champlin Refining Co. v. Corporation Comm'n of Oklahoma, 286 U.S. 210, 234 (1932)). Assuming that appellants are correct in urging that this matter must be resolved on the basis of congressional intent, the intent appears to have been for § 274(f) to be given effect in this situation. Indeed, striking the removal provisions would lead to a statute that Congress would probably have refused to adopt. As the District Court concluded:
"[T]he grant of authority to the Comptroller General was a carefully considered protection against what the House conceived to be the pro-executive bias of the OMB. It is doubtful that the automatic deficit reduction process would have passed without such protection, and doubtful that the protection would have been considered present if the Comptroller General were not removable by Congress itself . . . ." 626 F. Supp., at 1394.
*736A Accordingly, rather than perform the type of creative and imaginative statutory surgery urged by appellants, our holding simply permits the fallback provisions to come into play.[10]
VII
No one can doubt that Congress and the President are confronted with fiscal and economic problems of unprecedented magnitude, but "the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives or the hallmarks of democratic government. . . ." Chadha, supra, at 944.
We conclude that the District Court correctly held that the powers vested in the Comptroller General under § 251 violate the command of the Constitution that the Congress play no direct role in the execution of the laws. Accordingly, the judgment and order of the District Court are affirmed.
Our judgment is stayed for a period not to exceed 60 days to permit Congress to implement the fallback provisions.
It is so ordered.
*736B JUSTICE STEVENS, with whom JUSTICE MARSHALL joins, concurring in the judgment. | The question presented by these appeals is whether the assignment by Congress to the Comptroller General of the United States of certain functions under the Balanced Budget and Emergency Deficit Control Act of violates the doctrine of separation of powers. I A On December 12, the President signed into law the Balanced Budget and Emergency Deficit Control Act of Stat. 1038, 2 U.S. C. 901 et seq. (1982 ed., Supp. III), popularly known as the "Gramm-Rudman-Hollings Act." The purpose of the Act is to eliminate the federal budget deficit. To that end, the Act sets a "maximum deficit amount" for federal spending for each of fiscal years through 1991. The size of that maximum deficit amount progressively reduces to zero in fiscal year 1991. If in any fiscal year the federal budget deficit exceeds the maximum *718 deficit amount by more than a specified sum, the Act requires across-the-board cuts in federal spending to reach the targeted deficit level, with half of the cuts made to defense programs and the other half made to nondefense programs. The Act exempts certain priority programs from these cuts. 255. These "automatic" reductions are accomplished through a rather complicated procedure, spelled out in 251, the so-called "reporting provisions" of the Act. Each year, the Directors of the Office of Management and Budget (OMB) and the Congressional Budget Office (CBO) independently estimate the amount of the federal budget deficit for the upcoming fiscal year. If that deficit exceeds the maximum targeted deficit amount for that fiscal year by more than a specified amount, the Directors of OMB and CBO independently calculate, on a program-by-program basis, the budget reductions necessary to ensure that the deficit does not exceed the maximum deficit amount. The Act then requires the Directors to report jointly their deficit estimates and budget reduction calculations to the Comptroller General. The Comptroller General, after reviewing the Directors' reports, then reports his conclusions to the President. 251(b). The President in turn must issue a "sequestration" order mandating the spending reductions specified by the Comptroller General. 252. There follows a period during which Congress may by legislation reduce spending to obviate, in whole or in part, the need for the sequestration order. If such reductions are not enacted, the sequestration order becomes effective and the spending reductions included in that order are made. Anticipating constitutional challenge to these procedures, the Act also contains a "fallback" deficit reduction process to take effect "[i]n the event that any of the reporting procedures described in section 251 are invalidated." 274(f). Under these provisions, the report prepared by the Directors of OMB and the CBO is submitted directly to a specially *719 created Temporary Joint Committee on Deficit Reduction, which must report in five days to both Houses a joint resolution setting forth the content of the Directors' report. Congress then must vote on the resolution under special rules, which render amendments out of order. If the resolution is passed and signed by the President, it then serves as the basis for a Presidential sequestration order. B Within hours of the President's signing of the Act,[1] Congressman Synar, who had voted against the Act, filed a complaint seeking declaratory relief that the Act was unconstitutional. Eleven other Members later joined Congressman Synar's suit. A virtually identical lawsuit was also filed by the National Treasury Employees Union. The Union alleged that its members had been injured as a result of the Act's automatic spending reduction provisions, which have suspended certain cost-of-living benefit increases to the Union's members.[2] A three-judge District Court, appointed pursuant to 2 U.S. C. 922(a)(5) (1982 ed., Supp. III), invalidated the reporting provisions. The District Court concluded that the Union had standing to challenge the Act since the members of the Union had suffered actual injury by suspension of certain benefit increases. The District Court also concluded that Congressman Synar and his fellow Members had standing under the so-called "congressional standing" doctrine. See cert. granted sub nom. *720 The District Court next rejected appellees' challenge that the Act violated the delegation doctrine. The court expressed no doubt that the Act delegated broad authority, but delegation of similarly broad authority has been upheld in past cases. The District Court observed that in 321 U.S. 4, this Court upheld a statute that delegated to an unelected "Price Administrator" the power "to promulgate regulations fixing prices of commodities." Moreover, in the District Court's view, the Act adequately confined the exercise of administrative discretion. The District Court concluded that "the totality of the Act's standards, definitions, context, and reference to past administrative practice provides an adequate `intelligible principle' to guide and confine administrative decision making." Although the District Court concluded that the Act survived a delegation doctrine challenge, it held that the role of the Comptroller General in the deficit reduction process violated the constitutionally imposed separation of powers. The court first explained that the Comptroller General exercises executive functions under the Act. However, the Comptroller General, while appointed by the President with the advice and consent of the Senate, is removable not by the President but only by a joint resolution of Congress or by impeachment. The District Court reasoned that this arrangement could not be sustained under this Court's decisions in and Humphrey's Under the separation of powers established by the Framers of the Constitution, the court concluded, Congress may not retain the power of removal over an officer performing executive functions. The congressional removal power created a "here-and-now subservience" of the Comptroller General to Congress. The District Court therefore held that *721 "since the powers conferred upon the Comptroller General as part of the automatic deficit reduction process are executive powers, which cannot constitutionally be exercised by an officer removable by Congress, those powers cannot be exercised and therefore the automatic deficit reduction process to which they are are central cannot be implemented." Appeals were taken directly to this Court pursuant to 274(b) of the Act. We noted probable jurisdiction and expedited consideration of the appeals. We affirm. II A threshold issue is whether the Members of Congress, members of the National Treasury Employees Union, or the Union itself have standing to challenge the constitutionality of the Act in question. It is clear that members of the Union, one of whom is an appellee here, will sustain injury by not receiving a scheduled increase in benefits. See 252(a)(6)(C)(i); This is sufficient to confer standing under 274(a)(2) and Article III. We therefore need not consider the standing issue as to the Union or Members of Congress. See Secretary of Cf. Automobile ; Barnes v. Accordingly, we turn to the merits of the case. III We noted recently that "[t]he Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial." The declared purpose of separating and dividing the powers of government, of course, was to "diffus[e] power the better to secure liberty." Youngstown Sheet & Tube Justice Jackson's words echo the famous warning of Montesquieu, *722 quoted by James Madison in The Federalist No. 47, that " `there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates'." The Federalist No. 47, p. 325 (J. Cooke ed. 1961). Even a cursory examination of the Constitution reveals the influence of Montesquieu's thesis that checks and balances were the foundation of a structure of government that would protect liberty. The Framers provided a vigorous Legislative Branch and a separate and wholly independent Executive Branch, with each branch responsible ultimately to the people. The Framers also provided for a Judicial Branch equally independent with "[t]he judicial Power extend[ing] to all Cases, in Law and Equity, arising under this Constitution, and the Laws of the United States." Art. III, 2. Other, more subtle, examples of separated powers are evident as well. Unlike parliamentary systems such as that of Great Britain, no person who is an officer of the United States may serve as a Member of the Congress. Art. I, 6. Moreover, unlike parliamentary systems, the President, under Article II, is responsible not to the Congress but to the people, subject only to impeachment proceedings which are exercised by the two Houses as representatives of the people. Art. II, 4. And even in the impeachment of a President the presiding officer of the ultimate tribunal is not a member of the Legislative Branch, but the Chief Justice of the United States. Art. I, 3. That this system of division and separation of powers produces conflicts, confusion, and discordance at times is inherent, but it was deliberately so structured to assure full, vigorous, and open debate on the great issues affecting the people and to provide avenues for the operation of checks on the exercise of governmental power. The Constitution does not contemplate an active role for Congress in the supervision of officers charged with the execution of the laws it enacts. The President appoints "Officers of the United States" with the "Advice and Consent of *723 the Senate" Art. II. 2. Once the appointment has been made and confirmed, however, the Constitution explicitly provides for removal of Officers of the United States by Congress only upon impeachment by the House of Representatives and conviction by the Senate. An impeachment by the House and trial by the Senate can rest only on "Treason, Bribery or other high Crimes and Misdemeanors." Art. II, 4. A direct congressional role in the removal of officers charged with the execution of the laws beyond this limited one is inconsistent with separation of powers. This was made clear in debate in the First Congress in 1789. When Congress considered an amendment to a bill establishing the Department of Foreign Affairs, the debate centered around whether the Congress "should recognize and declare the power of the President under the Constitution to remove the Secretary of Foreign Affairs without the advice and consent of the Senate." Myers, James Madison urged rejection of a congressional role in the removal of Executive Branch officers, other than by impeachment, saying in debate: "Perhaps there was no argument urged with more success, or more plausibly grounded against the Constitution, under which we are now deliberating, than that founded on the mingling of the Executive and Legislative branches of the Government in one body. It has been objected, that the Senate have too much of the Executive power even, by having a control over the President in the appointment to office. Now, shall we extend this connection between the Legislative and Executive departments, which will strengthen the objection, and diminish the responsibility we have in the head of the Executive?" 1 Annals of Cong. 380 (1789). Madison's position ultimately prevailed, and a congressional role in the removal process was rejected. This "Decision of 1789" provides "contemporaneous and weighty evidence" of the Constitution's meaning since many of the Members of the *724 First Congress "had taken part in framing that instrument."[3] This Court first directly addressed this issue in At issue in Myers was a statute providing that certain postmasters could be removed only "by and with the advice and consent of the Senate." The President removed one such Postmaster without Senate approval, and a lawsuit ensued. Chief Justice Taft, writing for the Court, declared the statute unconstitutional on the ground that for Congress to "draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of that power would be to infringe the constitutional principle of the separation of governmental powers." A decade later, in Humphrey's relied upon heavily by appellants, a Federal Trade Commissioner who had been removed by the President sought backpay. Humphrey's Executor involved an issue not presented either in the Myers case or in this case i. e., the power of Congress to limit the President's powers of removal of a Federal Trade Commissioner. *.[4] The relevant statute permitted removal "by the President," but only "for inefficiency, neglect of duty, or malfeasance in office." Justice Sutherland, speaking for the Court, upheld the statute, holding that "illimitable power of removal is not possessed by the President [with respect to Federal Trade Commissioners]." The Court distinguished Myers, reaffirming its holding that congressional participation in the removal of executive officers is unconstitutional. Justice Sutherland's opinion for the Court also underscored the crucial role of separated powers in our system: "The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others, has often been stressed and is hardly open to serious question. So much is implied in the very fact of the separation of the powers of these departments by the Constitution; and in the rule which recognizes their essential co-equality." U.S., at 629-630. The Court reached a similar result in concluding that, under Humphrey's Executor, the President did not have unrestrained *726 removal authority over a member of the War Claims Commission. In light of these precedents, we conclude that Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment. To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws. As the District Court observed: "Once an officer is appointed, it is only the authority that can remove him, and not the authority that appointed him, that he must fear and, in the performance of his functions, obey." The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess. Our decision in supports this conclusion. In we struck down a one-House "legislative veto" provision by which each House of Congress retained the power to reverse a decision Congress had expressly authorized the Attorney General to make: "Disagreement with the Attorney General's decision on 's deportation that is, Congress' decision to deport no less than Congress' original choice to delegate to the Attorney General the authority to make that decision, involves determinations of policy that Congress can implement in only one way; bicameral passage followed by presentment to the President. Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked." To permit an officer controlled by Congress to execute the laws would be, in essence, to permit a congressional veto. Congress could simply remove, or threaten to remove, an officer for executing the laws in any fashion found to be unsatisfactory to Congress. This kind of congressional control over *727 the execution of the laws, makes clear, is constitutionally impermissible. The dangers of congressional usurpation of Executive Branch functions have long been recognized. "[T]he debates of the Constitutional Convention, and the Federalist Papers, are replete with expressions of fear that the Legislative Branch of the National Government will aggrandize itself at the expense of the other two branches." Indeed, we also have observed only recently that "[t]he hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted." at With these principles in mind, we turn to consideration of whether the Comptroller General is controlled by Congress. IV Appellants urge that the Comptroller General performs his duties independently and is not subservient to Congress. We agree with the District Court that this contention does not bear close scrutiny. The critical factor lies in the provisions of the statute defining the Comptroller General's office relating to removability.[5] Although the Comptroller General is nominated by the President from a list of three individuals recommended by the Speaker of the House of Representatives and the President pro tempore of the Senate, see 31 U.S. C. *728 703(a)(2),[6] and confirmed by the Senate, he is removable only at the initiative of Congress. He may be removed not only by impeachment but also by joint resolution of Congress "at any time" resting on any one of the following bases: "(i) permanent disability; "(ii) inefficiency; "(iii) neglect of duty; "(iv) malfeasance; or "(v) a felony or conduct involving moral turpitude." 31 U.S. C. 703(e)(1)B.[7] This provision was included, as one Congressman explained in urging passage of the Act, because Congress "felt that [the Comptroller General] should be brought under the sole control of Congress, so that Congress at any moment when it found he was inefficient and was not carrying on the duties of his office as he should and as the Congress expected, could remove him without the long, tedious process of a trial by impeachment." 61 Cong. Rec. 1081 (1921). The removal provision was an important part of the legislative scheme, as a number of Congressmen recognized. Representative Hawley commented: "[H]e is our officer, in a measure, getting information for us If he does not do his work properly, we, as practically his employers, ought to be able to discharge him from his office." 58 Cong. Rec. 7136 (1919). Representative Sisson observed that the removal provisions would give "[t]he Congress of the United States absolute control of the man's destiny in office." *729 61 Cong. Rec. 987 (1921). The ultimate design was to "give the legislative branch of the Government control of the audit, not through the power of appointment, but through the power of removal." 58 Cong. Rec. 7211 (1919) (Rep. Temple). JUSTICE WHITE contends: "The statute does not permit anyone to remove the Comptroller at will; removal is permitted only for specified cause, with the existence of cause to be determined by Congress following a hearing. Any removal under the statute would presumably be subject to post-termination judicial review to ensure that a hearing had in fact been held and that the finding of cause for removal was not arbitrary." Post, at 770. That observation by the dissenter rests on at least two arguable premises: (a) that the enumeration of certain specified causes of removal excludes the possibility of removal for other causes, cf. ; and (b) that any removal would be subject to judicial review, a position that appellants were unwilling to endorse.[8] Glossing over these difficulties, the dissent's assessment of the statute fails to recognize the breadth of the grounds for removal. The statute permits removal for "inefficiency," "neglect of duty," or "malfeasance." These terms are very broad and, as interpreted by Congress, could sustain removal of a Comptroller General for any number of actual or perceived transgressions of the legislative will. The Constitutional Convention chose to permit impeachment of executive officers only for "Treason, Bribery, or other high Crimes and Misdemeanors." It rejected language that would have permitted impeachment for "maladministration," with Madison *730 arguing that "[s]o vague a term will be equivalent to a tenure during pleasure of the Senate." 2 M. Farrand, Records of the Federal Convention of 1787, p. 550 (1911). We need not decide whether "inefficiency" or "malfeasance" are terms as broad as "maladministration" in order to reject the dissent's position that removing the Comptroller General requires "a feat of bipartisanship more difficult than that required to impeach and convict." Post, at 771 (WHITE, J., dissenting). Surely no one would seriously suggest that judicial independence would be strengthened by allowing removal of federal judges only by a joint resolution finding "inefficiency," "neglect of duty," or "malfeasance." JUSTICE WHITE, however, assures us that "[r]ealistic consideration" of the "practical result of the removal provision," post, at 774, 773, reveals that the Comptroller General is unlikely to be removed by Congress. The separated powers of our Government cannot be permitted to turn on judicial assessment of whether an officer exercising executive power is on good terms with Congress. The Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty. In constitutional terms, the removal powers over the Comptroller General's office dictate that he will be subservient to Congress. This much said, we must also add that the dissent is simply in error to suggest that the political realities reveal that the Comptroller General is free from influence by Congress. The Comptroller General heads the General Accounting Office (GAO), "an instrumentality of the United States Government independent of the executive departments," 31 U.S. C. 702(a), which was created by Congress in 1921 as part of the Budget and Accounting Act of 1921, Congress created the office because it believed that it "needed an officer, responsible to it alone, to check upon the application of public funds in accordance with appropriations." H. Mansfield, *731 The Comptroller General: A Study in the Law and Practice of Financial Administration 65 (1939). It is clear that Congress has consistently viewed the Comptroller General as an officer of the Legislative Branch. The Reorganization Acts of 1945 and 1949, for example, both stated that the Comptroller General and the GAO are "a part of the legislative branch of the Government." ; Similarly, in the Accounting and Auditing Act of 1950, Congress required the Comptroller General to conduct audits "as an agent of the Congress." Over the years, the Comptrollers General have also viewed themselves as part of the Legislative Branch. In one of the early Annual Reports of Comptroller General, the official seal of his office was described as reflecting "the independence of judgment to be exercised by the General Accounting Office, subject to the control of the legislative branch. The combination represents an agency of the Congress independent of other authority auditing and checking the expenditures of the Government as required by law and subjecting any questions arising in that connection to quasi-judicial determination." GAO Ann. Rep. 5-6 (1924). Later, Comptroller General Warren, who had been a Member of Congress for 15 years before being appointed Comptroller General, testified: "During most of my public life, I have been a member of the legislative branch. Even now, although heading a great agency, it is an agency of the Congress, and I am an agent of the Congress." To Provide for Reorganizing of Agencies of the Government: Hearings on H. R. 3325 before the House Committee on Expenditures, 79th Cong., 1st Sess., 69 (1945) (emphasis added). And, in one conflict during Comptroller General McCarl's tenure, he asserted his independence of the Executive Branch, stating: "Congress is the only authority to which there lies an appeal from the decision of this office. *732 ". I may not accept the opinion of any official, inclusive of the Attorney General, as controlling my duty under the law." with respect to interpretation of compensation statute). Against this background, we see no escape from the conclusion that, because Congress has retained removal authority over the Comptroller General, he may not be entrusted with executive powers. The remaining question is whether the Comptroller General has been assigned such powers in the Balanced Budget and Emergency Deficit Control Act of V The primary responsibility of the Comptroller General under the instant Act is the preparation of a "report." This report must contain detailed estimates of projected federal revenues and expenditures. The report must also specify the reductions, if any, necessary to reduce the deficit to the target for the appropriate fiscal year. The reductions must be set forth on a program-by-program basis. In preparing the report, the Comptroller General is to have "due regard" for the estimates and reductions set forth in a joint report submitted to him by the Director of CBO and the Director of OMB, the President's fiscal and budgetary adviser. However, the Act plainly contemplates that the Comptroller General will exercise his independent judgment and evaluation with respect to those estimates. The Act also provides that the Comptroller General's report "shall explain fully any differences between the contents of such report and the report of the Directors." 251(b)(2). Appellants suggest that the duties assigned to the Comptroller General in the Act are essentially ministerial and mechanical so that their performance does not constitute "execution of the law" in a meaningful sense. On the contrary, we view these functions as plainly entailing execution *733 of the law in constitutional terms. Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of "execution" of the law. Under 251, the Comptroller General must exercise judgment concerning facts that affect the application of the Act. He must also interpret the provisions of the Act to determine precisely what budgetary calculations are required. Decisions of that kind are typically made by officers charged with executing a statute. The executive nature of the Comptroller General's functions under the Act is revealed in 252(a)(3) which gives the Comptroller General the ultimate authority to determine the budget cuts to be made. Indeed, the Comptroller General commands the President himself to carry out, without the slightest variation (with exceptions not relevant to the constitutional issues presented), the directive of the Comptroller General as to the budget reductions: "The [Presidential] order must provide for reductions in the manner specified in section 251(a)(3), must incorporate the provisions of the [Comptroller General's] report submitted under section 251(b), and must be consistent with such report in all respects. The President may not modify or recalculate any of the estimates, determinations, specifications, bases, amounts, or percentages set forth in the report submitted under section 251(b) in determining the reductions to be specified in the order with respect to programs, projects, and activities, or with respect to budget activities, within an account." 252(a)(3) (emphasis added). See also 251(d)(3)(A). Congress of course initially determined the content of the Balanced Budget and Emergency Deficit Control Act; and undoubtedly the content of the Act determines the nature of the executive duty. However, as makes clear, once Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution *734 of its enactment only indirectly by passing new legislation. By placing the responsibility for execution of the Balanced Budget and Emergency Deficit Control Act in the hands of an officer who is subject to removal only by itself, Congress in effect has retained control over the execution of the Act and has intruded into the executive function. The Constitution does not permit such intrusion. VI We now turn to the final issue of remedy. Appellants urge that rather than striking down 251 and invalidating the significant power Congress vested in the Comptroller General to meet a national fiscal emergency, we should take the lesser course of nullifying the statutory provisions of the 1921 Act that authorizes Congress to remove the Comptroller General. At oral argument, counsel for the Comptroller General suggested that this might make the Comptroller General removable by the President. All appellants urge that Congress would prefer invalidation of the removal provisions rather than invalidation of 251 of the Balanced Budget and Emergency Deficit Control Act. Severance at this late date of the removal provisions enacted 65 years ago would significantly alter the Comptroller General's office, possibly by making him subservient to the Executive Branch. Recasting the Comptroller General as an officer of the Executive Branch would accordingly alter the balance that Congress had in mind in drafting the Budget and Accounting Act of 1921 and the Balanced Budget and Emergency Deficit Control Act, to say nothing of the wide array of other tasks and duties Congress has assigned the Comptroller General in other statutes.[9] Thus appellants' *735 argument would require this Court to undertake a weighing of the importance Congress attached to the removal provisions in the Budget and Accounting Act of 1921 as well as in other subsequent enactments against the importance it placed on the Balanced Budget and Emergency Deficit Control Act of Fortunately this is a thicket we need not enter. The language of the Balanced Budget and Emergency Deficit Control Act itself settles the issue. In 274(f), Congress has explicitly provided "fallback" provisions in the Act that take effect "[i]n the event any of the reporting procedures described in section 251 are invalidated." 274(f)(1) (emphasis added). The fallback provisions are " `fully operative as a law,' " ). Assuming that appellants are correct in urging that this matter must be resolved on the basis of congressional intent, the intent appears to have been for 274(f) to be given effect in this situation. Indeed, striking the removal provisions would lead to a statute that Congress would probably have refused to adopt. As the District Court concluded: "[T]he grant of authority to the Comptroller General was a carefully considered protection against what the House conceived to be the pro-executive bias of the OMB. It is doubtful that the automatic deficit reduction process would have passed without such protection, and doubtful that the protection would have been considered present if the Comptroller General were not removable by Congress itself" *736A Accordingly, rather than perform the type of creative and imaginative statutory surgery urged by appellants, our holding simply permits the fallback provisions to come into play.[10] VII No one can doubt that Congress and the President are confronted with fiscal and economic problems of unprecedented magnitude, but "the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives or the hallmarks of democratic government." We conclude that the District Court correctly held that the powers vested in the Comptroller General under 251 violate the command of the Constitution that the Congress play no direct role in the execution of the laws. Accordingly, the judgment and order of the District Court are affirmed. Our judgment is stayed for a period not to exceed 60 days to permit Congress to implement the fallback provisions. It is so ordered. *736B JUSTICE STEVENS, with whom JUSTICE MARSHALL joins, concurring in the judgment. |
Justice Douglas | concurring | true | Doherty v. United States | 1971-11-09T00:00:00 | null | https://www.courtlistener.com/opinion/108396/doherty-v-united-states/ | https://www.courtlistener.com/api/rest/v3/clusters/108396/ | 1,971 | 1971-008 | 2 | 7 | 0 | While concurring completely in the Court's per curiam, I believe additional detail clarifying the applicability of *30 Fed. Rule Crim. Proc. 44 and the Criminal Justice Act[1] to these circumstances is warranted inasmuch as all of the circuits' rules implementing the latter are susceptible of replications of the result reached below.[2] Rule 44 and the Criminal Justice Act each establish a federal policy of providing every indigent federal accused with appointed counsel at every stage in his defense from arraignment through direct review by this Court, including petitioning for certiorari.
I
Rule 44
The Act of June 29, 1940, 54 Stat. 688,[3] authorized the Supreme Court to prescribe uniform criminal procedures in the federal courts prior to and including verdict. By an order of the Court on December 26, *31 1944 (323 U.S. 821), such rules were adopted, thereafter transmitted to the Congress, and became effective on March 21, 1946. These contained the forerunner of the present Rule 44, which provided:
"Assignment of Counsel. If the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel."
This procedure embodied our holding in Johnson v. Zerbst, 304 U.S. 458 (1938), that federal indigent defendants had a right under the Sixth Amendment to free counsel during trial. Until Johnson v. United States, 352 U.S. 565 (1957), it was unclear whether Rule 44 extended that assistance to direct appeals of convictions arising in the federal courts. In any event by the last decade the sweep of our decisions involving right to counsel on appeal required revision of Rule 44 to make clear that "every stage of the proceedings" did, in fact, include appeals.[4] Thus, the revised rule effective since 1966 now reads:
"Every defendant who is unable to obtain counsel shall be entitled to have counsel assigned to represent him at every stage of the proceedings from his initial appearance before the commissioner or *32 the court through appeal, unless he waives such appointment." Fed. Rule Crim. Proc. 44 (a).
Whether "appeal" includes proceedings before the Supreme Court was not addressed by the Advisory Committee's Note and was until now an academic question since the rule became effective after the implementation of the Criminal Justice Act under which courts of appeals have uniformly adopted procedures routinely to extend appointed counsel's duty to preparation of certiorari petitions desired by their clients. Because this Court has traditionally appointed counsel for those indigents whose certiorari petitions are granted, the only gap in coverage would arise where, as here, a request for appointment is made to the Court of Appeals after it has decided an indigent's appeal.
It is significant that the language of the amended rule does extend assistance to "appeals" and does not restrict "appeals" to proceedings in "courts of appeals." Moreover, no qualification such as "first appeal" is present. Additionally, to the extent that the Advisory Committee's suggested reading sheds light on its thinking, its Note refers to a law review article which argues for mandatory appointments in all stages of the federal criminal process,[5] including petitions for certiorari. That is the obvious disposition to be made of any ambiguity.
II
Criminal Justice Act
An independent source of the federal statutory policy of continuous representation of indigents during their defense in the federal criminal process is the Criminal Justice Act of 1964. As does Rule 44, the Act provides an automatic right to counsel only in prosecutions *33 originating in the District Courts and during direct review therefrom. Unlike Rule 44, the Act also authorizes discretionary appointment of counsel in the "interests of justice" to any pauper "subject to revocation of parole, in custody as a material witness, or seeking relief under section 2241, 2254, or 2255 of title 28 or section 4245 of title 18."[6] 18 U.S. C. § 3006A (g). Another important difference between the Act and Rule 44 is that only the former authorizes the disbursement of federal funds to reimburse court-appointed lawyers.[7] Financial relief to the Bar has become increasingly necessary as our decisions have expanded indigents' rights to counsel.
The clearest statement of the Act's policy of providing blanket coverage of indigents' representation from arraignment through review by this Court is found in the first sentence of subsection (c):
"A person for whom counsel is appointed shall be represented at every stage of the proceedings from his initial appearance before the United States magistrate or the court through appeal, including ancillary matters." 18 U.S. C. § 3006A (c).
The ambiguous phrase "through appeal," has been clarified by a 1970 amendment to another section. 18 U.S. C. § 3006A (d) (6) now provides:
"If a person for whom counsel is appointed under this section appeals to an appellate court or petitions for a writ of certiorari, he may do so without *34 prepayment of fees and costs or security therefor and without filing the affidavit required by section 1915 (a) of title 28." 84 Stat. 918.[8] (Emphasis added.)
Most of the original congressional hearings and floor debates concern the wisdom of public defender services in contrast to the more conventional system of rotating appointments among the Bar. No discussion was directed to the precise question involved here. Nonetheless, there are several indicia that "appeal," as used in § 3006A (c), was intended to include proceedings in this Court.
Different versions of the Actall based upon the Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice report of 1963 were passed in each of the Houses of Congress. A conference committee ironed out the differences and its House members afterwards reported concerning the present language of subsection (c):
"Implied in the Senate version, and expressed in the House version, is the right of a defendant to have counsel appointed at any stage of the proceeding; i. e., before the commissioner, the district court, the court of appeals, or the Supreme Court." H. R. Rep. No. 1709, 88th Cong., 2d Sess., 7 (1964) (emphasis added).
At least two exchanges during the floor debates made explicit that proceedings in this Court were within the Act's coverage.[9]
*35 Moreover, the Judicial Conference's Committee to Implement the Criminal Justice Act of 1964 submitted in 1965 an interim recommendation that:
"[C]ounsel appointed on appeal should advise the defendant of his right to initiate a further review by the filing of a petition for certiorari, and to file such petition, if requested by the defendant." Report on Criminal Justice Act, 36 F. R. D. 285, 291 (1965).[10]
As mentioned earlier, this recommendation has been adopted by all of the circuit conferences.
And our own rules have been amended to implement our participation under the Act in cases where we grant certiorari or note probable jurisdiction. Supreme Court Rule 53 (8).
Other indicators of intent are found in the Attorney General's Committee study. One of its recommendations was that a lawyer appointed by the trial court should have incentives to represent the accused in the subsequent stages of the case including "any appellate proceedings." Hearings on S. 1057 before the Senate Committee on the judiciary, 88th Cong., 1st Sess., 183, 205 (1963). Presumably a purpose to excise the step during which certiorari petitions are prepared would have avoided the phrase "any appellate proceedings" and substituted instead "proceedings before the Courts of Appeals." Moreover, the study group recommended that the Act cover probation and parole revocation hearings, *36 a suggestion accepted by the legislature. Id., at 210, 18 U.S. C. § 3006A (a). It is difficult to ascribe to Congress a purpose to extend the assistance of counsel to paupers in these ancillary matters but to withhold it when they petition for certiorari.
It is clear that the help of counsel was meant to be available during review by this Court both in filing for certiorari and on the merits. It cannot seriously be urged against this backdrop, that Congress intended to leave lawyerless those relatively infrequent and impecunious petitioners who request counsel only after courts of appeals have adversely decided their claims. In such situations as this one, the judicial function is to resolve ambiguous statutory language in light of the underlying purposes of the measure.
Since the applicant is entitled to counsel to aid in his preparation of his petition for writ of certiorari, the only question which remains is whether it is the duty of the court of appeals or of this Court to make an appointment. Given the existing apparatus of the courts of appeals for the purpose of appointing counsel for their impoverished appellants, it would seem to be little burden upon them to process applications such as this one. Also, local appointments would facilitate swift filings of those petitions within the time limits prescribed by Supreme Court Rule 22 (2). The conclusion that the duty to process these requests should lie with the courts of appeals, rather than this Court, has been suggested elsewhere. Boskey, The Right to Counsel in Appellate Proceedings, 45 Minn. L. Rev. 783 (1961).
I join the Court in remanding the case so that the Court of Appeals may reconsider the application. I agree that it should enter a new decree so that Doherty's time within which he may file his certiorari papers may run anew.
| While concurring completely in the Court's per curiam, I believe additional detail clarifying the applicability of *30 Fed. Rule Crim. Proc. 44 and the Criminal Justice Act[1] to these circumstances is warranted inasmuch as all of the circuits' rules implementing the latter are susceptible of replications of the result reached below.[2] Rule 44 and the Criminal Justice Act each establish a federal policy of providing every indigent federal accused with appointed counsel at every stage in his defense from arraignment through direct review by this Court, including petitioning for certiorari. I Rule 44 The Act of June 29, 1940,[3] authorized the Supreme Court to prescribe uniform criminal procedures in the federal courts prior to and including verdict. By an order of the Court on December 26, *31 1944 (), such rules were adopted, thereafter transmitted to the Congress, and became effective on March 21, 1946. These contained the forerunner of the present Rule 44, which provided: "Assignment of Counsel. If the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel." This procedure embodied our holding in that federal indigent defendants had a right under the Sixth Amendment to free counsel during trial. Until it was unclear whether Rule 44 extended that assistance to direct appeals of convictions arising in the federal courts. In any event by the last decade the sweep of our decisions involving right to counsel on appeal required revision of Rule 44 to make clear that "every stage of the proceedings" did, in fact, include appeals.[4] Thus, the revised rule effective since 1966 now reads: "Every defendant who is unable to obtain counsel shall be entitled to have counsel assigned to represent him at every stage of the proceedings from his initial appearance before the commissioner or *32 the court through appeal, unless he waives such appointment." Fed. Rule Crim. Proc. 44 (a). Whether "appeal" includes proceedings before the Supreme Court was not addressed by the Advisory Committee's Note and was until now an academic question since the rule became effective after the implementation of the Criminal Justice Act under which courts of appeals have uniformly adopted procedures routinely to extend appointed counsel's duty to preparation of certiorari petitions desired by their clients. Because this Court has traditionally appointed counsel for those indigents whose certiorari petitions are granted, the only gap in coverage would arise where, as here, a request for appointment is made to the Court of Appeals after it has decided an indigent's appeal. It is significant that the language of the amended rule does extend assistance to "appeals" and does not restrict "appeals" to proceedings in "courts of appeals." Moreover, no qualification such as "first appeal" is present. Additionally, to the extent that the Advisory Committee's suggested reading sheds light on its thinking, its Note refers to a law review article which argues for mandatory appointments in all stages of the federal criminal process,[5] including petitions for certiorari. That is the obvious disposition to be made of any ambiguity. II Criminal Justice Act An independent source of the federal statutory policy of continuous representation of indigents during their defense in the federal criminal process is the Criminal Justice Act of 1964. As does Rule 44, the Act provides an automatic right to counsel only in prosecutions *33 originating in the District Courts and during direct review therefrom. Unlike Rule 44, the Act also authorizes discretionary appointment of counsel in the "interests of justice" to any pauper "subject to revocation of parole, in custody as a material witness, or seeking relief under section 2241, 2254, or 2255 of title 28 or section 4245 of title 18."[6] 18 U.S. C. 3006A (g). Another important difference between the Act and Rule 44 is that only the former authorizes the disbursement of federal funds to reimburse court-appointed lawyers.[7] Financial relief to the Bar has become increasingly necessary as our decisions have expanded indigents' rights to counsel. The clearest statement of the Act's policy of providing blanket coverage of indigents' representation from arraignment through review by this Court is found in the first sentence of subsection (c): "A person for whom counsel is appointed shall be represented at every stage of the proceedings from his initial appearance before the United States magistrate or the court through appeal, including ancillary matters." 18 U.S. C. 3006A (c). The ambiguous phrase "through appeal," has been clarified by a 1970 amendment to another section. 18 U.S. C. 3006A (d) (6) now provides: "If a person for whom counsel is appointed under this section appeals to an appellate court or petitions for a writ of certiorari, he may do so without *34 prepayment of fees and costs or security therefor and without filing the affidavit required by section 1915 (a) of title 28."[8] (Emphasis added.) Most of the original congressional hearings and floor debates concern the wisdom of public defender services in contrast to the more conventional system of rotating appointments among the Bar. No discussion was directed to the precise question involved here. Nonetheless, there are several indicia that "appeal," as used in 3006A (c), was intended to include proceedings in this Court. Different versions of the Actall based upon the Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice report of 1963 were passed in each of the Houses of Congress. A conference committee ironed out the differences and its House members afterwards reported concerning the present language of subsection (c): "Implied in the Senate version, and expressed in the House version, is the right of a defendant to have counsel appointed at any stage of the proceeding; i. e., before the commissioner, the district court, the court of appeals, or the Supreme Court." H. R. Rep. No. 1709, 88th Cong., 2d Sess., 7 (1964) (emphasis added). At least two exchanges during the floor debates made explicit that proceedings in this Court were within the Act's coverage.[9] *35 Moreover, the Judicial Conference's Committee to Implement the Criminal Justice Act of 1964 submitted in 1965 an interim recommendation that: "[C]ounsel appointed on appeal should advise the defendant of his right to initiate a further review by the filing of a petition for certiorari, and to file such petition, if requested by the defendant." Report on Criminal Justice Act, 36 F. R. D. 285, 291 (1965).[10] As mentioned earlier, this recommendation has been adopted by all of the circuit conferences. And our own rules have been amended to implement our participation under the Act in cases where we grant certiorari or note probable jurisdiction. Supreme Court Rule 53 (8). Other indicators of intent are found in the Attorney General's Committee study. One of its recommendations was that a lawyer appointed by the trial court should have incentives to represent the accused in the subsequent stages of the case including "any appellate proceedings." Hearings on S. 1057 before the Senate Committee on the judiciary, 88th Cong., 1st Sess., 183, 205 (1963). Presumably a purpose to excise the step during which certiorari petitions are prepared would have avoided the phrase "any appellate proceedings" and substituted instead "proceedings before the Courts of Appeals." Moreover, the study group recommended that the Act cover probation and parole revocation hearings, *36 a suggestion accepted by the legislature. 18 U.S. C. 3006A (a). It is difficult to ascribe to Congress a purpose to extend the assistance of counsel to paupers in these ancillary matters but to withhold it when they petition for certiorari. It is clear that the help of counsel was meant to be available during review by this Court both in filing for certiorari and on the merits. It cannot seriously be urged against this backdrop, that Congress intended to leave lawyerless those relatively infrequent and impecunious petitioners who request counsel only after courts of appeals have adversely decided their claims. In such situations as this one, the judicial function is to resolve ambiguous statutory language in light of the underlying purposes of the measure. Since the applicant is entitled to counsel to aid in his preparation of his petition for writ of certiorari, the only question which remains is whether it is the duty of the court of appeals or of this Court to make an appointment. Given the existing apparatus of the courts of appeals for the purpose of appointing counsel for their impoverished appellants, it would seem to be little burden upon them to process applications such as this one. Also, local appointments would facilitate swift filings of those petitions within the time limits prescribed by Supreme Court Rule 22 (2). The conclusion that the duty to process these requests should lie with the courts of appeals, rather than this Court, has been suggested elsewhere. Boskey, The Right to Counsel in Appellate Proceedings, I join the Court in remanding the case so that the Court of Appeals may reconsider the application. I agree that it should enter a new decree so that Doherty's time within which he may file his certiorari papers may run anew. |
Justice Thomas | majority | false | Robinson v. Shell Oil Co. | 1997-02-18T00:00:00 | null | https://www.courtlistener.com/opinion/118082/robinson-v-shell-oil-co/ | https://www.courtlistener.com/api/rest/v3/clusters/118082/ | 1,997 | 1996-021 | 2 | 9 | 0 | Section 704(a) of Title VII of the Civil Rights Act of 1964 makes it unlawful "for an employer to discriminate against any of his employees or applicants for employment" who have either availed themselves of Title VII's protections or assisted others in so doing. 78 Stat. 257, as amended, 42 U.S. C. § 2000e3(a). We are asked to decide in this case whether the term "employees," as used in § 704(a), includes former employees, such that petitioner may bring suit against his former employer for postemployment actions allegedly taken in retaliation for petitioner's having filed a charge with the Equal Employment Opportunity Commission (EEOC). The United States Court of Appeals for the Fourth Circuit, sitting en banc, held that the term "employees" in § 704(a) referred only to current employees and therefore petitioner's claim was not cognizable under Title VII. We granted certiorari, 517 U.S. 1154 (1996), and now reverse.
I
Respondent Shell Oil Co. fired petitioner Charles T. Robinson, Sr., in 1991. Shortly thereafter, petitioner filed a charge with the EEOC, alleging that respondent had discharged him because of his race. While that charge was pending, petitioner applied for a job with another company. That company contacted respondent, as petitioner's former employer, for an employment reference. Petitioner claims that respondent gave him a negative reference in retaliation for his having filed the EEOC charge.
*340 Petitioner subsequently sued under § 704(a), alleging retaliatory discrimination. On respondent's motion, the District Court dismissed the action, adhering to previous Fourth Circuit precedent holding that § 704(a) does not apply to former employees. Petitioner appealed, and a divided panel of the Fourth Circuit reversed the District Court. The Fourth Circuit granted rehearing en banc, vacated the panel decision, and thereafter affirmed the District Court's determination that former employees may not bring suit under § 704(a) for retaliation occurring after termination of their employment. 70 F.3d 325 (1995).
We granted certiorari in order to resolve a conflict among the Circuits on this issue.[1]
II
A
Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and "the statutory scheme is coherent and consistent." United States v.Ron Pair Enterprises, Inc., 489 U.S. 235, 240 (1989); see also Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-254 (1992).
*341 The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole. Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 477 (1992); McCarthy v. Bronson, 500 U.S. 136, 139 (1991). In this case, consideration of those factors leads us to conclude that the term "employees," as used in § 704(a), is ambiguous as to whether it excludes former employees.
At first blush, the term "employees" in § 704(a) would seem to refer to those having an existing employment relationship with the employer in question. Cf. Walters v. Metropolitan Ed. Enterprises, Inc., ante, at 207-208 (interpreting the term "employees" in § 701(b), 42 U.S. C. § 2000e(b)). This initial impression, however, does not withstand scrutiny in the context of § 704(a). First, there is no temporal qualifier in the statute such as would make plain that § 704(a) protects only persons still employed at the time of the retaliation. That the statute could have expressly included the phrase "former employees" does not aid our inquiry. Congress also could have used the phrase "current employees." But nowhere in Title VII is either phrase usedeven where the specific context otherwise makes clear an intent to cover current or former employees.[2] Similarly, that other statutes have been more specific in their coverage of "employees" and *342 "former employees," see, e. g., 2 U.S. C. § 1301(4) (1994 ed., Supp. I) (defining "employee" to include "former employee"); 5 U.S. C. § 1212(a)(1) (including "employees, former employees, and applicants for employment" in the operative provision), proves only that Congress can use the unqualified term "employees" to refer only to current employees, not that it did so in this particular statute.
Second, Title VII's definition of "employee" likewise lacks any temporal qualifier and is consistent with either current or past employment. Section 701(f) defines "employee" for purposes of Title VII as "an individual employed by an employer." 42 U.S. C. § 2000e(f). The argument that the term "employed," as used in § 701(f), is commonly used to mean "[p]erforming work under an employer-employee relationship," Black's Law Dictionary 525 (6th ed. 1990), begs the question by implicitly reading the word "employed" to mean "is employed." But the word "employed" is not so limited in its possible meanings, and could just as easily be read to mean "was employed."
Third, a number of other provisions in Title VII use the term "employees" to mean something more inclusive or different from "current employees." For example, §§ 706(g)(1) and 717(b) both authorize affirmative remedial action (by a court or EEOC, respectively) "which may include . . . reinstatement or hiring of employees." 42 U.S. C. §§ 2000e 5(g)(1) and 2000e16(b). As petitioner notes, because one does not "reinstat[e]" current employees, that language necessarily refers to former employees. Likewise, one may hire individuals to be employees, but one does not typically hire persons who already are employees.
Section 717(b) requires federal departments and agencies to have equal employment opportunity policies and rules, "which shall include a provision that an employee or applicant for employment shall be notified of any final action taken on any complaint of discrimination filed by him thereunder." 42 U.S. C. § 2000e16(b). If the complaint involves *343 discriminatory discharge, as it often does, the "employee" who must be notified is necessarily a former employee. Similarly, § 717(c) provides that an "employee or applicant for employment, if aggrieved by the final disposition of his complaint, . . . may file a civil action . . . ." 42 U.S. C. § 2000e16(c). Again, given that discriminatory discharge is a forbidden "personnel actio[n] affecting employees," see § 717(a), 42 U.S. C. § 2000e16(a), the term "employee" in § 717(c) necessarily includes a former employee. See Loeffler v. Frank, 486 U.S. 549 (1988) (involving a discriminatory discharge action successfully brought under § 717 by a former Postal Service employee).[3]
Of course, there are sections of Title VII where, in context, use of the term "employee" refers unambiguously to a current employee, for example, those sections addressing salary or promotions. See § 703(h), 42 U.S. C. § 2000e2(h) (allowing different standards of compensation for "employees who work in different locations"); § 717(b), 42 U.S. C. § 2000e 16(b) (directing federal agencies to establish a plan "to provide a maximum opportunity for employees to advance so as to perform at their highest potential").
But those examples at most demonstrate that the term "employees" may have a plain meaning in the context of a particular sectionnot that the term has the same meaning in all other sections and in all other contexts. Once it is established that the term "employees" includes former employees in some sections, but not in others, the term standing alone is necessarily ambiguous and each section must be analyzed *344 to determine whether the context gives the term a further meaning that would resolve the issue in dispute.[4]
Respondent argues that the addition of the word "his" before "employees" narrows the scope of the provision. Brief for Respondent 19. That argument is true, so far as it goes, but it does not resolve the question before usnamely, in what time frame must the employment relationship exist. The phrase "his employees" could include "his" former employees, but still exclude persons who have never worked for the particular employer being charged with retaliation.
Nor are we convinced by respondent's argument that Congress' inclusion in § 704(a) of "applicants for employment" as persons distinct from "employees," coupled with its failure to include "former employees," is evidence of congressional intent not to include former employees. The use of the term "applicants" in § 704(a) does not serve to confine, by negative inference, the temporal scope of the term "employees." Respondent's argument rests on the incorrect premise that the term "applicants" is equivalent to the phrase "future employees." But the term "applicants" would seem to cover many persons who will not become employees. Unsuccessful applicants or those who turn down a job offer, for example, would have been applicants, but not future employees. And the term fails to cover certain future employees who may be offered and will accept jobs without having to apply for those jobs. Because the term "applicants" in § 704(a) is not synonymous with the phrase "future employees," there is no basis for engaging in the further (and questionable) negative inference *345 that inclusion of the term "applicants" demonstrates intentional exclusion of former employees.
Finally, the use of the term "individual" in § 704(a), as well as in § 703(a), 42 U.S. C. § 2000e2(a), provides no meaningful assistance in resolving this case. To be sure, "individual" is a broader term than "employee" and would facially seem to cover a former employee. But it would also encompass a present employee as well as other persons who have never had an employment relationship with the employer at issue. The term "individual," therefore, does not seem designed to capture former employees, as distinct from current employees, and its use provides no insight into whether the term "employees" is limited only to current employees.
B
Finding that the term "employees" in § 704(a) is ambiguous, we are left to resolve that ambiguity. The broader context provided by other sections of the statute provides considerable assistance in this regard. As noted above, several sections of the statute plainly contemplate that former employees will make use of the remedial mechanisms of Title VII. See supra, at 342-343. Indeed, § 703(a) expressly includes discriminatory "discharge" as one of the unlawful employment practices against which Title VII is directed. 42 U.S. C. § 2000e2(a). Insofar as § 704(a) expressly protects employees from retaliation for filing a "charge" under Title VII, and a charge under § 703(a) alleging unlawful discharge would necessarily be brought by a former employee, it is far more consistent to include former employees within the scope of "employees" protected by § 704(a).
In further support of this view, petitioner argues that the word "employees" includes former employees because to hold otherwise would effectively vitiate much of the protection afforded by § 704(a). See Brief for Petitioner 20-30. This is also the position taken by the EEOC. See Brief for *346 United States and EEOC as Amici Curiae 16-25; see also 2 EEOC Compliance Manual § 614.7(f). According to the EEOC, exclusion of former employees from the protection of § 704(a) would undermine the effectiveness of Title VII by allowing the threat of postemployment retaliation to deter victims of discrimination from complaining to the EEOC, and would provide a perverse incentive for employers to fire employees who might bring Title VII claims. Brief for United States and EEOC as Amici Curiae 18-21.
Those arguments carry persuasive force given their coherence and their consistency with a primary purpose of antiretaliation provisions: Maintaining unfettered access to statutory remedial mechanisms. Cf. NLRB v. Scrivener, 405 U.S. 117, 121-122 (1972) (National Labor Relations Act); Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292 293 (1960) (Fair Labor Standards Act). The EEOC quite persuasively maintains that it would be destructive of this purpose of the antiretaliation provision for an employer to be able to retaliate with impunity against an entire class of acts under Title VIIfor example, complaints regarding discriminatory termination. We agree with these contentions and find that they support the inclusive interpretation of "employees" in § 704(a) that is already suggested by the broader context of Title VII.
III
We hold that the term "employees," as used in § 704(a) of Title VII, is ambiguous as to whether it includes former employees. It being more consistent with the broader context of Title VII and the primary purpose of § 704(a), we hold that former employees are included within § 704(a)'s coverage. Accordingly, the decision of the Fourth Circuit is reversed.
It is so ordered.
| Section 704(a) of Title VII of the Civil Rights Act of 1964 makes it unlawful "for an employer to discriminate against any of his employees or applicants for employment" who have either availed themselves of Title VII's protections or assisted others in so doing. as amended, 42 U.S. C. 2000e3(a). We are asked to decide in this case whether the term "employees," as used in 704(a), includes former employees, such that petitioner may bring suit against his former employer for postemployment actions allegedly taken in retaliation for petitioner's having filed a charge with the Equal Employment Opportunity Commission (EEOC). The United States Court of Appeals for the Fourth Circuit, sitting en banc, held that the term "employees" in 704(a) referred only to current employees and therefore petitioner's claim was not cognizable under Title VII. We granted certiorari, and now reverse. I Respondent Shell Oil Co. fired petitioner Charles T. Robinson, Sr., in 1991. Shortly thereafter, petitioner filed a charge with the EEOC, alleging that respondent had discharged him because of his race. While that charge was pending, petitioner applied for a job with another company. That company contacted respondent, as petitioner's former employer, for an employment reference. Petitioner claims that respondent gave him a negative reference in retaliation for his having filed the EEOC charge. *340 Petitioner subsequently sued under 704(a), alleging retaliatory discrimination. On respondent's motion, the District Court dismissed the action, adhering to previous Fourth Circuit precedent holding that 704(a) does not apply to former employees. Petitioner appealed, and a divided panel of the Fourth Circuit reversed the District Court. The Fourth Circuit granted rehearing en banc, vacated the panel decision, and thereafter affirmed the District Court's determination that former employees may not bring suit under 704(a) for retaliation occurring after termination of their employment. We granted certiorari in order to resolve a conflict among the Circuits on this issue.[1] II A Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and "the statutory scheme is coherent and consistent." United States v.Ron Pair Enterprises, Inc., ; see also Connecticut Nat. *341 The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole. Estate of ; In this case, consideration of those factors leads us to conclude that the term "employees," as used in 704(a), is ambiguous as to whether it excludes former employees. At first blush, the term "employees" in 704(a) would seem to refer to those having an existing employment relationship with the employer in question. Cf. Walters v. Metropolitan Ed. Enterprises, Inc., ante, at 207-208 (interpreting the term "employees" in 701(b), 42 U.S. C. 2000e(b)). This initial impression, however, does not withstand scrutiny in the context of 704(a). First, there is no temporal qualifier in the statute such as would make plain that 704(a) protects only persons still employed at the time of the retaliation. That the statute could have expressly included the phrase "former employees" does not aid our inquiry. Congress also could have used the phrase "current employees." But nowhere in Title VII is either phrase usedeven where the specific context otherwise makes clear an intent to cover current or former employees.[2] Similarly, that other statutes have been more specific in their coverage of "employees" and *342 "former employees," see, e. g., 2 U.S. C. 1301(4) (1994 ed., Supp. I) (defining "employee" to include "former employee"); 5 U.S. C. 1212(a)(1) (including "employees, former employees, and applicants for employment" in the operative provision), proves only that Congress can use the unqualified term "employees" to refer only to current employees, not that it did so in this particular statute. Second, Title VII's definition of "employee" likewise lacks any temporal qualifier and is consistent with either current or past employment. Section 701(f) defines "employee" for purposes of Title VII as "an individual employed by an employer." 42 U.S. C. 2000e(f). The argument that the term "employed," as used in 701(f), is commonly used to mean "[p]erforming work under an employer-employee relationship," Black's Law Dictionary 525 (6th ed. 1990), begs the question by implicitly reading the word "employed" to mean "is employed." But the word "employed" is not so limited in its possible meanings, and could just as easily be read to mean "was employed." Third, a number of other provisions in Title VII use the term "employees" to mean something more inclusive or different from "current employees." For example, 706(g)(1) and 717(b) both authorize affirmative remedial action (by a court or EEOC, respectively) "which may include reinstatement or hiring of employees." 42 U.S. C. 2000e 5(g)(1) and 2000e16(b). As petitioner notes, because one does not "reinstat[e]" current employees, that language necessarily refers to former employees. Likewise, one may hire individuals to be employees, but one does not typically hire persons who already are employees. Section 717(b) requires federal departments and agencies to have equal employment opportunity policies and rules, "which shall include a provision that an employee or applicant for employment shall be notified of any final action taken on any complaint of discrimination filed by him thereunder." 42 U.S. C. 2000e16(b). If the complaint involves *343 discriminatory discharge, as it often does, the "employee" who must be notified is necessarily a former employee. Similarly, 717(c) provides that an "employee or applicant for employment, if aggrieved by the final disposition of his complaint, may file a civil action" 42 U.S. C. 2000e16(c). Again, given that discriminatory discharge is a forbidden "personnel actio[n] affecting employees," see 717(a), 42 U.S. C. 2000e16(a), the term "employee" in 717(c) necessarily includes a former employee. See (involving a discriminatory discharge action successfully brought under 717 by a former Postal Service employee).[3] Of course, there are sections of Title VII where, in context, use of the term "employee" refers unambiguously to a current employee, for example, those sections addressing salary or promotions. See 703(h), 42 U.S. C. 2000e2(h) (allowing different standards of compensation for "employees who work in different locations"); 717(b), 42 U.S. C. 2000e 16(b) (directing federal agencies to establish a plan "to provide a maximum opportunity for employees to advance so as to perform at their highest potential"). But those examples at most demonstrate that the term "employees" may have a plain meaning in the context of a particular sectionnot that the term has the same meaning in all other sections and in all other contexts. Once it is established that the term "employees" includes former employees in some sections, but not in others, the term standing alone is necessarily ambiguous and each section must be analyzed *344 to determine whether the context gives the term a further meaning that would resolve the issue in dispute.[4] Respondent argues that the addition of the word "his" before "employees" narrows the scope of the provision. Brief for Respondent 19. That argument is true, so far as it goes, but it does not resolve the question before usnamely, in what time frame must the employment relationship exist. The phrase "his employees" could include "his" former employees, but still exclude persons who have never worked for the particular employer being charged with retaliation. Nor are we convinced by respondent's argument that Congress' inclusion in 704(a) of "applicants for employment" as persons distinct from "employees," coupled with its failure to include "former employees," is evidence of congressional intent not to include former employees. The use of the term "applicants" in 704(a) does not serve to confine, by negative inference, the temporal scope of the term "employees." Respondent's argument rests on the incorrect premise that the term "applicants" is equivalent to the phrase "future employees." But the term "applicants" would seem to cover many persons who will not become employees. Unsuccessful applicants or those who turn down a job offer, for example, would have been applicants, but not future employees. And the term fails to cover certain future employees who may be offered and will accept jobs without having to apply for those jobs. Because the term "applicants" in 704(a) is not synonymous with the phrase "future employees," there is no basis for engaging in the further (and questionable) negative inference *345 that inclusion of the term "applicants" demonstrates intentional exclusion of former employees. Finally, the use of the term "individual" in 704(a), as well as in 703(a), 42 U.S. C. 2000e2(a), provides no meaningful assistance in resolving this case. To be sure, "individual" is a broader term than "employee" and would facially seem to cover a former employee. But it would also encompass a present employee as well as other persons who have never had an employment relationship with the employer at issue. The term "individual," therefore, does not seem designed to capture former employees, as distinct from current employees, and its use provides no insight into whether the term "employees" is limited only to current employees. B Finding that the term "employees" in 704(a) is ambiguous, we are left to resolve that ambiguity. The broader context provided by other sections of the statute provides considerable assistance in this regard. As noted above, several sections of the statute plainly contemplate that former employees will make use of the remedial mechanisms of Title VII. See Indeed, 703(a) expressly includes discriminatory "discharge" as one of the unlawful employment practices against which Title VII is directed. 42 U.S. C. 2000e2(a). Insofar as 704(a) expressly protects employees from retaliation for filing a "charge" under Title VII, and a charge under 703(a) alleging unlawful discharge would necessarily be brought by a former employee, it is far more consistent to include former employees within the scope of "employees" protected by 704(a). In further support of this view, petitioner argues that the word "employees" includes former employees because to hold otherwise would effectively vitiate much of the protection afforded by 704(a). See Brief for Petitioner 20-30. This is also the position taken by the EEOC. See Brief for *346 United States and EEOC as Amici Curiae 16-25; see also 2 EEOC Compliance Manual 614.7(f). According to the EEOC, exclusion of former employees from the protection of 704(a) would undermine the effectiveness of Title VII by allowing the threat of postemployment retaliation to deter victims of discrimination from complaining to the EEOC, and would provide a perverse incentive for employers to fire employees who might bring Title VII claims. Brief for United States and EEOC as Amici Curiae 18-21. Those arguments carry persuasive force given their coherence and their consistency with a primary purpose of antiretaliation provisions: Maintaining unfettered access to statutory remedial mechanisms. Cf. ; The EEOC quite persuasively maintains that it would be destructive of this purpose of the antiretaliation provision for an employer to be able to retaliate with impunity against an entire class of acts under Title VIIfor example, complaints regarding discriminatory termination. We agree with these contentions and find that they support the inclusive interpretation of "employees" in 704(a) that is already suggested by the broader context of Title VII. III We hold that the term "employees," as used in 704(a) of Title VII, is ambiguous as to whether it includes former employees. It being more consistent with the broader context of Title VII and the primary purpose of 704(a), we hold that former employees are included within 704(a)'s coverage. Accordingly, the decision of the Fourth Circuit is reversed. It is so ordered. |
Justice Souter | majority | false | Johnson v. United States | 2000-05-15T00:00:00 | null | https://www.courtlistener.com/opinion/118364/johnson-v-united-states/ | https://www.courtlistener.com/api/rest/v3/clusters/118364/ | 2,000 | 1999-059 | 1 | 8 | 1 | The issue in this case grows out of an Ex Post Facto Clause challenge to the retroactive application of 18 U.S. C. § 3583(h), which authorizes a district court to impose an additional term of supervised release following the reimprisonment of those who violate the conditions of an initial term. The United States argues that district courts had the power to do so under the prior law, and that this cures any ex post facto problems. We agree with the Government as to the interpretation of prior law, and we find that consideration of the Ex Post Facto Clause is unnecessary.
I
In the Sentencing Reform Act of 1984, § 212(a)(2), 98 Stat. 1999, Congress eliminated most forms of parole in favor of *697 supervised release, a form of postconfinement monitoring overseen by the sentencing court, rather than the Parole Commission. See Gozlon-Peretz v. United States, 498 U.S. 395, 400-401 (1991). The sentencing court was authorized to impose a term of supervised release to follow imprisonment, with the maximum length of the term varying according to the severity of the initial offense. See 18 U.S. C. §§ 3583(a), (b). While on supervised release, the offender was required to abide by certain conditions, some specified by statute and some imposable at the court's discretion. See § 3583(d). Upon violation of a condition, 18 U.S. C. § 3583(e)(3) (1988 ed., Supp. V) authorized the court to "revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for time previously served on post-release supervision . . . ."[1] Such was done here.
In October 1993, petitioner Cornell Johnson violated 18 U.S. C. § 1029(b)(2), a Class D felony. In March 1994, the United States District Court for the Eastern District of Tennessee sentenced him to 25 months' imprisonment, to be followed by three years of supervised release, the maximum term available under § 3583(b) for a Class D felony. Johnson was released from prison on August 14, 1995, having received good-conduct credits, and began serving his 3-year term of supervised release. Some seven months into that term, he was arrested in Virginia and later convicted of four state forgery-related offenses. He was thus found to have violated one of the conditions of supervised release made mandatory by § 3583(d), that he not commit another crime during his term of supervised release, and one imposed by the District Court, that he not leave the judicial district without permission.
*698 The District Court revoked Johnson's supervised release, imposed a prison term of 18 months, and ordered Johnson placed on supervised release for 12 months following imprisonment. App. 40-41. For this last order, the District Court did not identify the source of its authority, though under Circuit law it might have relied on § 3583(h), a subsection added to the statute in 1994, see Violent Crime Control and Law Enforcement Act of 1994, § 110505(2)(B), 108 Stat. 2017. Subsection (h) explicitly gave district courts the power to impose another term of supervised release following imprisonment, a power not readily apparent from the text of § 3583(e)(3) (set out infra, at 704).
Johnson appealed his sentence, arguing that § 3583(e)(3) gave district courts no such power and that applying § 3583(h) to him violated the Ex Post Facto Clause of the Constitution, Art. I, § 9. The Sixth Circuit, joining the majority of the Federal Courts of Appeals, had earlier taken Johnson's position as far as the interpretation of § 3583(e)(3) was concerned, holding that it did not authorize a district court to impose a new term of supervised release following revocation and reimprisonment. See United States v. Truss, 4 F.3d 437 (CA6 1993).[2] It nonetheless affirmed the District Court, judgt. order reported at 181 F.3d 105 (1999), reasoning that the application of § 3583(h) was not retroactive at all, since revocation of supervised release was punishment for Johnson's violation of the conditions of supervised *699 release, which occurred after the 1994 amendments. With no retroactivity, there could be no Ex Post Facto Clause violation. See App. 49 (citing United States v. Abbington, 144 F.3d 1003, 1005 (CA6), cert. denied, 525 U.S. 933 (1998)). Other Circuits had held to the contrary, that revocation and reimprisonment were punishment for the original offense. From that perspective, application of § 3583(h) was retroactive and at odds with the Ex Post Facto Clause.[3] We granted certiorari to resolve the conflicts, 528 U.S. 950 (1999), and now affirm.
II
The heart of the Ex Post Facto Clause, U. S. Const., Art. I, § 9, bars application of a law "that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed . . . ." Calder v. Bull, 3 Dall. 386, 390 (1798) (emphasis deleted). To prevail on this sort of ex post facto claim, Johnson must show both that the law he challenges operates retroactively (that it applies to conduct completed before its enactment) and that it raises the penalty from whatever the law provided when he acted. See California Dept. of Corrections v. Morales, 514 U.S. 499, 506-507, n. 3 (1995).
A
The Sixth Circuit, as mentioned earlier, disposed of the ex post facto challenge by applying its earlier cases holding the application of § 3583(h) not retroactive at all: revocation *700 of supervised release "imposes punishment for defendants' new offenses for violating the conditions of their supervised release." United States v. Page, 131 F.3d 1173, 1176 (1997). On this theory, that is, if the violation of the conditions of supervised release occurred after the enactment of § 3583(h), as Johnson's did, the new law could be given effect without applying it to events before its enactment.
While this understanding of revocation of supervised release has some intuitive appeal, the Government disavows it, and wisely so in view of the serious constitutional questions that would be raised by construing revocation and reimprisonment as punishment for the violation of the conditions of supervised release. Although such violations often lead to reimprisonment, the violative conduct need not be criminal and need only be found by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt. See 18 U.S. C. § 3583(e)(3) (1988 ed., Supp. V). Where the acts of violation are criminal in their own right, they may be the basis for separate prosecution, which would raise an issue of double jeopardy if the revocation of supervised release were also punishment for the same offense. Treating postrevocation sanctions as part of the penalty for the initial offense, however (as most courts have done), avoids these difficulties. See, e. g., United States v. Wyatt, 102 F.3d 241, 244-245 (CA7 1996) (rejecting double jeopardy challenge on ground that sanctions for violating the conditions of supervised release are part of the original sentence); United States v. Beals, 87 F.3d 854, 859-860 (CA7 1996) (noting that punishment for noncriminal violations must be justified by reference to original crimes), overruled on other grounds, United States v. Withers, 128 F.3d 1167 (1997); United States v. Meeks, 25 F.3d 1117, 1123 (CA2 1994) (noting absence of constitutional procedural protections in revocation proceedings). Cf. Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) ("Probation revocation . . . is not a stage of a criminal *701 prosecution"). For that matter, such treatment is all but entailed by our summary affirmance of Greenfield v. Scafati, 277 F. Supp. 644 (Mass. 1967) (three-judge court), summarily aff'd, 390 U.S. 713 (1968), in which a three-judge panel forbade on ex post facto grounds the application of a Massachusetts statute imposing sanctions for violation of parole to a prisoner originally sentenced before its enactment. We therefore attribute postrevocation penalties to the original conviction.
B
Since postrevocation penalties relate to the original offense, to sentence Johnson to a further term of supervised release under § 3583(h) would be to apply this section retroactively (and to raise the remaining ex post facto question, whether that application makes him worse off). But before any such application (and constitutional test), there is a question that neither party addresses. The Ex Post Facto Clause raises to the constitutional level one of the most basic presumptions of our law: legislation, especially of the criminal sort, is not to be applied retroactively. See, e. g., Lynce v. Mathis, 519 U.S. 433, 439 (1997); Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994). Quite independent of the question whether the Ex Post Facto Clause bars retroactive application of § 3583(h), then, there is the question whether Congress intended such application. Absent a clear statement of that intent, we do not give retroactive effect to statutes burdening private interests. See id., at 270.
The Government offers nothing indicating congressional intent to apply § 3583(h) retroactively. The legislative decision to alter the rule of law established by the majority interpretation of § 3583(e)(3) (no authority for supervised release after revocation and reimprisonment) does not, by itself, tell us when or how that legislative decision was intended to take effect. See Rivers v. Roadway Express, *702 Inc., 511 U.S. 298, 304-307 (1994). Neither is there any indication of retroactive purpose in the omission of an express effective date from the statute. The omission simply remits us to the general rule that when a statute has no effective date, "absent a clear direction by Congress to the contrary, [it] takes effect on the date of its enactment." GozlonPeretz, 498 U. S., at 404.[4]
Nor, finally, has Congress given us anything expressly identifying the relevant conduct in a way that would point to retroactive intent. It may well be that Congress, like the Sixth Circuit, believed that § 3583(h) would naturally govern sentencing proceedings for violations of supervised release that took place after the statute's enactment, simply because the violation was the occasion for imposing the sanctions.[5] But Congress gave us no clear indication to this effect, and we have already rejected that theory; the relevant conduct is the initial offense. In sum, there being no contrary intent, our longstanding presumption directs that § 3583(h) applies only to cases in which that initial offense occurred after the effective date of the amendment, September 13, 1994.
Given this conclusion, the case does not turn on whether Johnson is worse off under § 3583(h) than he previously was under § 3583(e)(3), as subsection (h) does not apply, and the ex post facto question does not arise. The case turns, instead, *703 simply on whether § 3583(e)(3) permitted imposition of supervised release following a recommitment.[6]
III
Section 3583(e), at the time of Johnson's conviction, authorized a district court to
"(1) terminate a term of supervised release and discharge the person released at any time after the expiration of one year of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation, if it is satisfied that such action is warranted by the conduct of the person released and the interest of justice;
"(2) extend a term of supervised release if less than the maximum authorized term was previously imposed, and . . . modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation and the provisions applicable to the initial setting of the terms and conditions of post-release supervision;
*704 "(3) revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for the time previously served on postrelease supervision, if it finds by a preponderance of the evidence that the person violated a condition of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure that are applicable to probation revocation and to the provisions of applicable policy statements issued by the Sentencing Commission . . . ."
The text of subsection (e)(3) does not speak directly to the question whether a district court revoking a term of supervised release in favor of reimprisonment may require service of a further term of supervised release following the further incarceration. And if we were to concentrate exclusively on the verb "revoke," we would not detect any suggestion that the reincarceration might be followed by another term of supervised release, the conventional understanding of "revoke" being simply "to annul by recalling or taking back." Webster's Third New International Dictionary 1944 (1981). There are reasons, nonetheless, to think that the option of further supervised release was intended.
First, there are some textual reasons, starting with the preceding subsection (e)(1). This is an unequivocal provision for ending the term of supervised release without the possibility of its reimposition or continuation at a later time. Congress wrote that when a court finds that a defendant's conduct and the interests of justice warrant it, the court may "terminate a term of supervised release and discharge the person released," once at least a year of release time has been served. If application of subsection (3) had likewise been meant to conclude any possibility of supervised release later, it would have been natural for Congress to write in like terms. It could have provided that upon finding a defendant in violation of the release conditions the court could "terminate a term of supervised release" and order the defendant *705 incarcerated for a term as long as the original supervised release term. But that is not what Congress did. Instead of using "terminate" with the sense of finality just illustrated in subsection (1), Congress used the verb "revoke" and so at the least left the door open to a reading of subsection (3) that would not preclude further supervised release after the initial revocation.[7] In fact, the phrasing of subsection (3) did more than just leave the door open to the nonpreclusive reading.
As it was written before the 1994 amendments, subsection (3) did not provide (as it now does) that the court could revoke the release term and require service of a prison term equal to the maximum authorized length of a term of supervised release. It provided, rather, that the court could "revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release . . . ." So far as the text is concerned, it is not a "term of imprisonment" that is to be served, but all or part of "the term of supervised release." But if "the term of supervised release" is being served, in whole or part, in prison, then something about the term of supervised release survives the preceding order of revocation. While this sounds very metaphysical, the metaphysics make one thing clear: unlike a "terminated" order of supervised release, one *706 that is "revoked" continues to have some effect. And since it continues in some sense after revocation even when part of it is served in prison, why can the balance of it not remain effective as a term of supervised release when the reincarceration is over?[8]
Without more, we would have to admit that Congress had used "revoke" in an unconventional way in subsection (3), but it turns out that the unconventional sense is not unheard of. See United States v. O'Neil, 11 F.3d 292, 295-296 (CA1 1993). Webster's Third New International Dictionary (our edition of which was issued three years before the 1984 Act) reveals that "revoke" can mean "to call or summon back," without the implication (here) that no further supervised release is subsequently possible. It gives "recall" as a synonym and comments that "RECALL in this sense indicates a calling back, suspending, or abrogating, either finally as erroneous or ill-advised or tentatively for deliberation . . . ." Ibid.[9] The unconventional dictionary definition is not, of *707 course, dispositive (although the emphasis placed upon it by Justice Scalia might suggest otherwise, see post, at 718 719). What it does do, however, is to soften the strangeness of Congress's unconventional sense of "revoke" as allowing a "revoked" term of supervised release to retain vitality after revocation. It shows that saying a "revoked" term of supervised release survives to be served in prison following the court's reconsideration of it is consistent with a secondary but recognized definition, and so is saying that any balance not served in prison may survive to be served out as supervised release.
A final textually based point is that the result of recognizing Congress's unconventional usage of "revoke" is far less remarkable even than the unconventional usage. Let us suppose that Congress had legislated in language that unequivocally *708 supported the dissent, by writing subsection (3) to provide that the judge could "revoke" or "terminate" the term of supervised release and sentence the defendant to a further term of incarceration. There is no reason to think that under that regime the court would lack the power to impose a subsequent term of supervised release in accordance with its general sentencing authority under 18 U.S. C. § 3583(a). This section provides that "[t]he court, in imposing a sentence to a term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment . . . ." Thus, on the dissent's reading, when Johnson's supervised release was revoked and he was committed to prison, the District Court "impos[ed] a sentence to a term of imprisonment." See, e. g., App. 36, 39. And that sentence was, as already noted, imposed for his initial offense, the Class D felony violation of § 1029(b)(2). See supra, at 699-701. Nor would it be mere formalism to link the second prison sentence to the initial offense; the gravity of the initial offense determines the maximum term of reimprisonment, see § 3583(e)(3), just as it controls the maximum term of supervised release in the initial sentencing, see § 3583(b). Since on the dissent's understanding the resentencing proceeding would fall literally and sensibly within the terms of § 3583(a), a plain meaning approach would find authority for reimposition of supervised release there. Cf. United States v. Wesley, 81 F.3d 482, 483-484 (CA4 1996) (finding that § 3583(a) grants power to impose a term of supervised release following reimprisonment at resentencing for violation of probation).
There is, then, nothing surprising about the consequences of our reading. The reading also enjoys the virtue of serving the evident congressional purpose. The congressional policy in providing for a term of supervised release after incarceration is to improve the odds of a successful transition *709 from the prison to liberty. See, e. g., United States v. Johnson, ante, at 59 ("Congress intended supervised release to assist individuals in their transition to community life. Supervised release fulfills rehabilitative ends, distinct from those served by incarceration"). The Senate Report was quite explicit about this, stating that the goal of supervised release is "to ease the defendant's transition into the community after the service of a long prison term for a particularly serious offense, or to provide rehabilitation to a defendant who has spent a fairly short period in prison for punishment or other purposes but still needs supervision and training programs after release." S. Rep. No. 98-225, p. 124 (1983).
Prisoners may, of course, vary in the degree of help needed for successful reintegration. Supervised release departed from the parole system it replaced by giving district courts the freedom to provide postrelease supervision for those, and only those, who needed it. See id., at 125 ("In effect, the term of supervised release provided by the bill takes the place of parole supervision under current law. Unlike current law, however, probation officers will only be supervising those releasees from prison who actually need supervision, and every releasee who does need supervision will receive it"). Congress aimed, then, to use the district courts' discretionary judgment to allocate supervision to those releasees who needed it most. But forbidding the reimposition of supervised release after revocation and reimprisonment would be fundamentally contrary to that scheme. A violation of the terms of supervised release tends to confirm the judgment that help was necessary, and if any prisoner might profit from the decompression stage of supervised release, no prisoner needs it more than one who has already tried liberty and failed. He is the problem case among problem cases, and a Congress asserting that "every releasee who does need supervision will receive it," ibid., seems very unlikely *710 to have meant to compel the courts to wash their hands of the worst cases at the end of reimprisonment.[10]
The idea that a sentencing court should have authority to subject a reincarcerated prisoner to further supervised release has support, moreover, in the pre-Guidelines practice with respect to nondetentive monitoring, as illuminated in United States v. O'Neil, 11 F.3d 292 (CA1 1993). The Sentencing Guidelines, after all, "represent an approach that begins with, and builds upon," pre-Guidelines law, see USSG, ch. 1, pt. A, intro. comment. 3, and when a new legal regime develops out of an identifiable predecessor, it is reasonable to look to the precursor in fathoming the new law. Cf. INS v. Cardoza-Fonseca, 480 U.S. 421, 432-434 (1987) (examining practice under precursor statute to determine meaning of amended statute).
Two sorts of nondetentive monitoring existed before the introduction of supervised release: probation and parole. Of these pre-Guidelines options, the one more closely analogous *711 to supervised release following imprisonment was parole, which by definition was a release under supervision of a parole officer following service of some term of incarceration. Courts have commented on the similarity. See, e. g., Meeks, 25 F. 3d, at 1121 ("[S]upervised release is essentially similar to parole"); United States v. Paskow, 11 F.3d 873, 881 (CA9 1993) ("Supervised release and parole are virtually identical systems").
In thinking about this case, it is striking that the provisions of the former parole scheme dealing with the consequences of violating parole conditions repeatedly used the verb "revoke." See, e. g., 18 U.S. C. § 4214(d)(5) (1982 ed.) (repealed 1984, Pub. L. 98-473, §§ 218(a)(5), 235, 98 Stat. 2027, 2031) (revocation of parole); 21 U.S. C. § 841(c) (1982 ed.) (repealed 1984) (revocation of special parole). And yet there seems never to have been a question that a new term of parole could follow a prison sentence imposed after revocation of an initial parole term.[11] See, e. g., 28 CFR § 2.52(b) *712 (1999) (following revocation of parole, Sentencing Commission will determine whether reparole is warranted); O'Neil, supra, at 299; United States Parole Comm'n v. Williams, 54 F.3d 820, 824 (CADC 1995) (noting "the established preGuidelines sentencing principle that parole isavailable unless expressly precluded" (citation and internal quotation marks omitted)).[12] Thus, "revocation" of parole followed by further imprisonment was not a mere termination of a limited liberty that a defendant could experience only once per conviction, and it is fair to suppose that in the absence of any textual bar "revocation" of parole's replacement, supervised release, was meant to leave open the possibility of further supervised release, as well.
As seen already, "revoke" is no such bar, and we find no other. The proceeding that follows a violation of the conditions of supervised release is not, to be sure, a precise reenactment of the initial sentencing. Section 3583(e)(3) limits the possible prison term to the duration of the term of supervised release originally imposed. (If less than the maximum has been imposed, a court presumably may, before revoking the term, extend it pursuant to § 3583(e)(2); this would allow the term of imprisonment to equal the term of supervised release authorized for the initial offense.) The new prison term is limited further according to the gravity of the original offense. See § 3583(e)(3). But nothing in these specific *713 provisions suggests that the possibility of supervised release following imprisonment was meant to be eliminated.[13]
In sum, from a purely textual perspective, the more plausible reading of § 3583(e)(3) before its amendment and the addition of subsection (h) leaves open the possibility of supervised release after reincarceration. Pre-Guidelines practice, linguistic continuity from the old scheme to the current one, and the obvious thrust of congressional sentencing policy confirm that, in applying the law as before the enactment of subsection (h), district courts have the authority to order terms of supervised release following reimprisonment.
The judgment of the Court of Appeals for the Sixth Circuit is
Affirmed.
Justice Kennedy, concurring in part.
The Court holds that 18 U.S. C. § 3583(e)(3), as it stood before the amendment adding what is now subsection (h), permits a trial court to impose further incarceration followed by a period of supervised release after revoking an earlier supervised release because the conditions were violated. In my view this is the correct result. The subsection permits a court to "require [a] person to serve in prison all or part of the term of supervised release" originally imposed. 18 U.S. C. § 3583(e)(3) (1988 ed., Supp. V). This indicates that after the right to be on supervised release has been revoked there is yet an unexpired term of supervised release that can be allocated, in the court's discretion, in whole or in part to confinement and to release on such terms and conditions *714 as the court specifies. This was the convincing analysis adopted by the Court of Appeals for the First Circuit in reaching the same conclusion, and it suffices to resolve the case. See United States v. O'Neil, 11 F.3d 292 (1993). The analysis, moreover, is no less fair than Justice Scalia's, post, at 722, n. 5 (dissenting opinion), which, after explaining at length that the only possible meaning of "revoke a term" is "`to annul' " it,post, at 715, to "`cancel' " it,post, at 716, and to treat it "as though it had never existed," post, at 717, explains away the statute's later inconvenient reference to "the term of supervised release" as "describ[ing] the length of the permitted imprisonment by reference to that nowdefunct term of supervised release," post, at 721. This, of course, is not what the text says. Indeed, for support Justice Scalia turns to Congress' use of "terminate" in § 3583(g)which Justice Scalia elsewhere concedes "was a mistake." Post, at 718, n. 2. Faced with a choice between two difficult readings of what all must admit is not optimal statutory text, the Court is correct to adopt the interpretation that makes the most sense.
I would not go on to suggest, as the Court does, that a court could extend a term of supervised release pursuant to § 3583(e)(2) prior to revoking the term under § 3583(e)(3). Ante, at 712. The subparts of § 3583(e) are phrased in the disjunctive; and § 3583(e)(3) must stand on its own. This suggests the term of imprisonment plus any further term of supervised release imposed under § 3583(e)(3) may not exceed the original term of supervised release that had been imposed and then violated.
Nor would I invoke 18 U.S. C. § 3583(a), ante, at 708, which raises more issues than it resolves, not the least of which is the description of the District Court's action as "imposing a sentence." Petitioner's sentence was imposed upon conviction. What is at issue in this case is the appropriate adjustment to make to that sentence when the prisoner has violated the conditions of supervised release.
*715 With these observations I join the opinion of the Court, save for its parenthetical discussion of § 3583(e)(2), ante, at 712, and its dictum regarding § 3583(a), ante, at 708.
Justice Thomas, concurring in the judgment. | The issue in this case grows out of an Ex Post Facto Clause challenge to the retroactive application of 18 U.S. C. 3583(h), which authorizes a district court to impose an additional term of supervised release following the reimprisonment of those who violate the conditions of an initial term. The United States argues that district courts had the power to do so under the prior law, and that this cures any ex post facto problems. We agree with the Government as to the interpretation of prior law, and we find that consideration of the Ex Post Facto Clause is unnecessary. I In the Sentencing Reform Act of 1984, 212(a)(2), Congress eliminated most forms of parole in favor of *697 supervised release, a form of postconfinement monitoring overseen by the sentencing court, rather than the Parole Commission. See The sentencing court was authorized to impose a term of supervised release to follow imprisonment, with the maximum length of the term varying according to the severity of the initial offense. See 18 U.S. C. 3583(a), (b). While on supervised release, the offender was required to abide by certain conditions, some specified by statute and some imposable at the court's discretion. See 3583(d). Upon violation of a condition, 18 U.S. C. 3583(e)(3) (1988 ed., Supp. V) authorized the court to "revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for time previously served on post-release supervision"[1] Such was done here. In October petitioner Cornell Johnson violated 18 U.S. C. 1029(b)(2), a Class D felony. In March the United States District Court for the Eastern District of Tennessee sentenced him to 25 months' imprisonment, to be followed by three years of supervised release, the maximum term available under 3583(b) for a Class D felony. Johnson was released from prison on August 14, having received good-conduct credits, and began serving his 3-year term of supervised release. Some seven months into that term, he was arrested in Virginia and later convicted of four state forgery-related offenses. He was thus found to have violated one of the conditions of supervised release made mandatory by 3583(d), that he not commit another crime during his term of supervised release, and one imposed by the District Court, that he not leave the judicial district without permission. *698 The District Court revoked Johnson's supervised release, imposed a prison term of 18 months, and ordered Johnson placed on supervised release for 12 months following imprisonment. App. 40-41. For this last order, the District Court did not identify the source of its authority, though under Circuit law it might have relied on 3583(h), a subsection added to the statute in see Violent Crime Control and Law Enforcement Act of 110505(2)(B), Subsection (h) explicitly gave district courts the power to impose another term of supervised release following imprisonment, a power not readily apparent from the text of 3583(e)(3) (set out infra, at 704). Johnson appealed his sentence, arguing that 3583(e)(3) gave district courts no such power and that applying 3583(h) to him violated the Ex Post Facto Clause of the Constitution, Art. I, 9. The Sixth Circuit, joining the majority of the Federal Courts of Appeals, had earlier taken Johnson's position as far as the interpretation of 3583(e)(3) was concerned, holding that it did not authorize a district court to impose a new term of supervised release following revocation and reimprisonment. See United[2] It nonetheless affirmed the District Court, judgt. order reported at reasoning that the application of 3583(h) was not retroactive at all, since revocation of supervised release was punishment for Johnson's violation of the conditions of supervised *699 release, which occurred after the amendments. With no retroactivity, there could be no Ex Post Facto Clause violation. See App. 49 (citing United (CA6), cert. denied, ). Other Circuits had held to the contrary, that revocation and reimprisonment were punishment for the original offense. From that perspective, application of 3583(h) was retroactive and at odds with the Ex Post Facto Clause.[3] We granted certiorari to resolve the conflicts, and now affirm. II The heart of the Ex Post Facto Clause, U. S. Const., Art. I, 9, bars application of a law "that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed" To prevail on this sort of ex post facto claim, Johnson must show both that the law he challenges operates retroactively (that it applies to conduct completed before its enactment) and that it raises the penalty from whatever the law provided when he acted. See California Dept. of A The Sixth Circuit, as mentioned earlier, disposed of the ex post facto challenge by applying its earlier cases holding the application of 3583(h) not retroactive at all: revocation *700 of supervised release "imposes punishment for defendants' new offenses for violating the conditions of their supervised release." United On this theory, that is, if the violation of the conditions of supervised release occurred after the enactment of 3583(h), as Johnson's did, the new law could be given effect without applying it to events before its enactment. While this understanding of revocation of supervised release has some intuitive appeal, the Government disavows it, and wisely so in view of the serious constitutional questions that would be raised by construing revocation and reimprisonment as punishment for the violation of the conditions of supervised release. Although such violations often lead to reimprisonment, the violative conduct need not be criminal and need only be found by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt. See 18 U.S. C. 3583(e)(3) (1988 ed., Supp. V). Where the acts of violation are criminal in their own right, they may be the basis for separate prosecution, which would raise an issue of double jeopardy if the revocation of supervised release were also punishment for the same offense. Treating postrevocation sanctions as part of the penalty for the initial offense, however (as most courts have done), avoids these difficulties. See, e. g., United ; United overruled on other grounds, United ; United Cf. For that matter, such treatment is all but entailed by our summary affirmance of summarily aff'd, U.S. 713 in which a three-judge panel forbade on ex post facto grounds the application of a Massachusetts statute imposing sanctions for violation of parole to a prisoner originally sentenced before its enactment. We therefore attribute postrevocation penalties to the original conviction. B Since postrevocation penalties relate to the original offense, to sentence Johnson to a further term of supervised release under 3583(h) would be to apply this section retroactively (and to raise the remaining ex post facto question, whether that application makes him worse off). But before any such application (and constitutional test), there is a question that neither party addresses. The Ex Post Facto Clause raises to the constitutional level one of the most basic presumptions of our law: legislation, especially of the criminal sort, is not to be applied retroactively. See, e. g., ; Quite independent of the question whether the Ex Post Facto Clause bars retroactive application of 3583(h), then, there is the question whether Congress intended such application. Absent a clear statement of that intent, we do not give retroactive effect to statutes burdening private interests. See The Government offers nothing indicating congressional intent to apply 3583(h) retroactively. The legislative decision to alter the rule of law established by the majority interpretation of 3583(e)(3) (no authority for supervised release after revocation and reimprisonment) does not, by itself, tell us when or how that legislative decision was intended to take effect. See Neither is there any indication of retroactive purpose in the omission of an express effective date from the statute. The omission simply remits us to the general rule that when a statute has no effective date, "absent a clear direction by Congress to the contrary, [it] takes effect on the date of its enactment." GozlonPeretz,[4] Nor, finally, has Congress given us anything expressly identifying the relevant conduct in a way that would point to retroactive intent. It may well be that Congress, like the Sixth Circuit, believed that 3583(h) would naturally govern sentencing proceedings for violations of supervised release that took place after the statute's enactment, simply because the violation was the occasion for imposing the sanctions.[5] But Congress gave us no clear indication to this effect, and we have already rejected that theory; the relevant conduct is the initial offense. In sum, there being no contrary intent, our longstanding presumption directs that 3583(h) applies only to cases in which that initial offense occurred after the effective date of the amendment, September 13, Given this conclusion, the case does not turn on whether Johnson is worse off under 3583(h) than he previously was under 3583(e)(3), as subsection (h) does not apply, and the ex post facto question does not arise. The case turns, instead, *703 simply on whether 3583(e)(3) permitted imposition of supervised release following a recommitment.[6] III Section 3583(e), at the time of Johnson's conviction, authorized a district court to "(1) terminate a term of supervised release and discharge the person released at any time after the expiration of one year of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation, if it is satisfied that such action is warranted by the conduct of the person released and the interest of justice; "(2) extend a term of supervised release if less than the maximum authorized term was previously imposed, and modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation and the provisions applicable to the initial setting of the terms and conditions of post-release supervision; *704 "(3) revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for the time previously served on postrelease supervision, if it finds by a preponderance of the evidence that the person violated a condition of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure that are applicable to probation revocation and to the provisions of applicable policy statements issued by the Sentencing Commission" The text of subsection (e)(3) does not speak directly to the question whether a district court revoking a term of supervised release in favor of reimprisonment may require service of a further term of supervised release following the further incarceration. And if we were to concentrate exclusively on the verb "revoke," we would not detect any suggestion that the reincarceration might be followed by another term of supervised release, the conventional understanding of "revoke" being simply "to annul by recalling or taking back." Webster's Third New International Dictionary 1944 (1981). There are reasons, nonetheless, to think that the option of further supervised release was intended. First, there are some textual reasons, starting with the preceding subsection (e)(1). This is an unequivocal provision for ending the term of supervised release without the possibility of its reimposition or continuation at a later time. Congress wrote that when a court finds that a defendant's conduct and the interests of justice warrant it, the court may "terminate a term of supervised release and discharge the person released," once at least a year of release time has been served. If application of subsection (3) had likewise been meant to conclude any possibility of supervised release later, it would have been natural for Congress to write in like terms. It could have provided that upon finding a defendant in violation of the release conditions the court could "terminate a term of supervised release" and order the defendant *705 incarcerated for a term as long as the original supervised release term. But that is not what Congress did. Instead of using "terminate" with the sense of finality just illustrated in subsection (1), Congress used the verb "revoke" and so at the least left the door open to a reading of subsection (3) that would not preclude further supervised release after the initial revocation.[7] In fact, the phrasing of subsection (3) did more than just leave the door open to the nonpreclusive reading. As it was written before the amendments, subsection (3) did not provide (as it now does) that the court could revoke the release term and require service of a prison term equal to the maximum authorized length of a term of supervised release. It provided, rather, that the court could "revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release" So far as the text is concerned, it is not a "term of imprisonment" that is to be served, but all or part of "the term of supervised release." But if "the term of supervised release" is being served, in whole or part, in prison, then something about the term of supervised release survives the preceding order of revocation. While this sounds very metaphysical, the metaphysics make one thing clear: unlike a "terminated" order of supervised release, one *706 that is "revoked" continues to have some effect. And since it continues in some sense after revocation even when part of it is served in prison, why can the balance of it not remain effective as a term of supervised release when the reincarceration is over?[8] Without more, we would have to admit that Congress had used "revoke" in an unconventional way in subsection (3), but it turns out that the unconventional sense is not unheard of. See United Webster's Third New International Dictionary (our edition of which was issued three years before the 1984 Act) reveals that "revoke" can mean "to call or summon back," without the implication (here) that no further supervised release is subsequently possible. It gives "recall" as a synonym and comments that "RECALL in this sense indicates a calling back, suspending, or abrogating, either finally as erroneous or ill-advised or tentatively for deliberation" Ibid.[9] The unconventional dictionary definition is not, of *707 course, dispositive (although the emphasis placed upon it by Justice Scalia might suggest otherwise, see post, at 718 719). What it does do, however, is to soften the strangeness of Congress's unconventional sense of "revoke" as allowing a "revoked" term of supervised release to retain vitality after revocation. It shows that saying a "revoked" term of supervised release survives to be served in prison following the court's reconsideration of it is consistent with a secondary but recognized definition, and so is saying that any balance not served in prison may survive to be served out as supervised release. A final textually based point is that the result of recognizing Congress's unconventional usage of "revoke" is far less remarkable even than the unconventional usage. Let us suppose that Congress had legislated in language that unequivocally *708 supported the dissent, by writing subsection (3) to provide that the judge could "revoke" or "terminate" the term of supervised release and sentence the defendant to a further term of incarceration. There is no reason to think that under that regime the court would lack the power to impose a subsequent term of supervised release in accordance with its general sentencing authority under 18 U.S. C. 3583(a). This section provides that "[t]he court, in imposing a sentence to a term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment" Thus, on the dissent's reading, when Johnson's supervised release was revoked and he was committed to prison, the District Court "impos[ed] a sentence to a term of imprisonment." See, e. g., App. 36, 39. And that sentence was, as already noted, imposed for his initial offense, the Class D felony violation of 1029(b)(2). See Nor would it be mere formalism to link the second prison sentence to the initial offense; the gravity of the initial offense determines the maximum term of reimprisonment, see 3583(e)(3), just as it controls the maximum term of supervised release in the initial sentencing, see 3583(b). Since on the dissent's understanding the resentencing proceeding would fall literally and sensibly within the terms of 3583(a), a plain meaning approach would find authority for reimposition of supervised release there. Cf. United (finding that 3583(a) grants power to impose a term of supervised release following reimprisonment at resentencing for violation of probation). There is, then, nothing surprising about the consequences of our reading. The reading also enjoys the virtue of serving the evident congressional purpose. The congressional policy in providing for a term of supervised release after incarceration is to improve the odds of a successful transition *709 from the prison to liberty. See, e. g., United States v. Johnson, ante, at 59 ("Congress intended supervised release to assist individuals in their transition to community life. Supervised release fulfills rehabilitative ends, distinct from those served by incarceration"). The Senate Report was quite explicit about this, stating that the goal of supervised release is "to ease the defendant's transition into the community after the service of a long prison term for a particularly serious offense, or to provide rehabilitation to a defendant who has spent a fairly short period in prison for punishment or other purposes but still needs supervision and training programs after release." S. Rep. No. 98-225, p. 124 (1983). Prisoners may, of course, vary in the degree of help needed for successful reintegration. Supervised release departed from the parole system it replaced by giving district courts the freedom to provide postrelease supervision for those, and only those, who needed it. See ("In effect, the term of supervised release provided by the bill takes the place of parole supervision under current law. Unlike current law, however, probation officers will only be supervising those releasees from prison who actually need supervision, and every releasee who does need supervision will receive it"). Congress aimed, then, to use the district courts' discretionary judgment to allocate supervision to those releasees who needed it most. But forbidding the reimposition of supervised release after revocation and reimprisonment would be fundamentally contrary to that scheme. A violation of the terms of supervised release tends to confirm the judgment that help was necessary, and if any prisoner might profit from the decompression stage of supervised release, no prisoner needs it more than one who has already tried liberty and failed. He is the problem case among problem cases, and a Congress asserting that "every releasee who does need supervision will receive it," ib seems very unlikely *710 to have meant to compel the courts to wash their hands of the worst cases at the end of reimprisonment.[10] The idea that a sentencing court should have authority to subject a reincarcerated prisoner to further supervised release has support, moreover, in the pre-Guidelines practice with respect to nondetentive monitoring, as illuminated in United The Sentencing Guidelines, after all, "represent an approach that begins with, and builds upon," pre-Guidelines law, see USSG, ch. 1, pt. A, intro. comment. 3, and when a new legal regime develops out of an identifiable predecessor, it is reasonable to look to the precursor in fathoming the new law. Cf. Two sorts of nondetentive monitoring existed before the introduction of supervised release: probation and parole. Of these pre-Guidelines options, the one more closely analogous *711 to supervised release following imprisonment was parole, which by definition was a release under supervision of a parole officer following service of some term of incarceration. Courts have commented on the similarity. See, e. g., ; United In thinking about this case, it is striking that the provisions of the former parole scheme dealing with the consequences of violating parole conditions repeatedly used the verb "revoke." See, e. g., 18 U.S. C. 4214(d)(5) (1982 ed.) (repealed 1984, Pub. L. 98-473, 218(a)(5), 235, 2031) (revocation of parole); 21 U.S. C. 841(c) (1982 ed.) (repealed 1984) (revocation of special parole). And yet there seems never to have been a question that a new term of parole could follow a prison sentence imposed after revocation of an initial parole term.[11] See, e. g., 28 CFR 2.52(b) *712 (following revocation of parole, Sentencing Commission will determine whether reparole is warranted); O', ; United States Parole[12] Thus, "revocation" of parole followed by further imprisonment was not a mere termination of a limited liberty that a defendant could experience only once per conviction, and it is fair to suppose that in the absence of any textual bar "revocation" of parole's replacement, supervised release, was meant to leave open the possibility of further supervised release, as well. As seen already, "revoke" is no such bar, and we find no other. The proceeding that follows a violation of the conditions of supervised release is not, to be sure, a precise reenactment of the initial sentencing. Section 3583(e)(3) limits the possible prison term to the duration of the term of supervised release originally imposed. (If less than the maximum has been imposed, a court presumably may, before revoking the term, extend it pursuant to 3583(e)(2); this would allow the term of imprisonment to equal the term of supervised release authorized for the initial offense.) The new prison term is limited further according to the gravity of the original offense. See 3583(e)(3). But nothing in these specific *713 provisions suggests that the possibility of supervised release following imprisonment was meant to be eliminated.[13] In sum, from a purely textual perspective, the more plausible reading of 3583(e)(3) before its amendment and the addition of subsection (h) leaves open the possibility of supervised release after reincarceration. Pre-Guidelines practice, linguistic continuity from the old scheme to the current one, and the obvious thrust of congressional sentencing policy confirm that, in applying the law as before the enactment of subsection (h), district courts have the authority to order terms of supervised release following reimprisonment. The judgment of the Court of Appeals for the Sixth Circuit is Affirmed. Justice Kennedy, concurring in part. The Court holds that 18 U.S. C. 3583(e)(3), as it stood before the amendment adding what is now subsection (h), permits a trial court to impose further incarceration followed by a period of supervised release after revoking an earlier supervised release because the conditions were violated. In my view this is the correct result. The subsection permits a court to "require [a] person to serve in prison all or part of the term of supervised release" originally imposed. 18 U.S. C. 3583(e)(3) (1988 ed., Supp. V). This indicates that after the right to be on supervised release has been revoked there is yet an unexpired term of supervised release that can be allocated, in the court's discretion, in whole or in part to confinement and to release on such terms and conditions *714 as the court specifies. This was the convincing analysis adopted by the Court of Appeals for the First Circuit in reaching the same conclusion, and it suffices to resolve the case. See United The analysis, moreover, is no less fair than Justice Scalia's, post, at 722, n. 5 (dissenting opinion), which, after explaining at length that the only possible meaning of "revoke a term" is "`to annul' " it,post, at 715, to "`cancel' " it,post, at 716, and to treat it "as though it had never existed," post, at 717, explains away the statute's later inconvenient reference to "the term of supervised release" as "describ[ing] the length of the permitted imprisonment by reference to that nowdefunct term of supervised release," post, at 721. This, of course, is not what the text says. Indeed, for support Justice Scalia turns to Congress' use of "terminate" in 3583(g)which Justice Scalia elsewhere concedes "was a mistake." Post, at 718, n. 2. Faced with a choice between two difficult readings of what all must admit is not optimal statutory text, the Court is correct to adopt the interpretation that makes the most sense. I would not go on to suggest, as the Court does, that a court could extend a term of supervised release pursuant to 3583(e)(2) prior to revoking the term under 3583(e)(3). Ante, at 712. The subparts of 3583(e) are phrased in the disjunctive; and 3583(e)(3) must stand on its own. This suggests the term of imprisonment plus any further term of supervised release imposed under 3583(e)(3) may not exceed the original term of supervised release that had been imposed and then violated. Nor would I invoke 18 U.S. C. 3583(a), ante, at 708, which raises more issues than it resolves, not the least of which is the description of the District Court's action as "imposing a sentence." Petitioner's sentence was imposed upon conviction. What is at issue in this case is the appropriate adjustment to make to that sentence when the prisoner has violated the conditions of supervised release. *715 With these observations I join the opinion of the Court, save for its parenthetical discussion of 3583(e)(2), ante, at 712, and its dictum regarding 3583(a), ante, at 708. Justice Thomas, concurring in the judgment. |
Justice Scalia | concurring | false | Granfinanciera, SA v. Nordberg | 1989-06-23T00:00:00 | null | https://www.courtlistener.com/opinion/112317/granfinanciera-sa-v-nordberg/ | https://www.courtlistener.com/api/rest/v3/clusters/112317/ | 1,989 | 1988-137 | 2 | 6 | 3 | I join all but Part IV of the Court's opinion. I make that exception because I do not agree with the premise of its discussion: that "the Federal Government need not be a party for a case to revolve around `public rights.' " Ante, at 54, quoting Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 586 (1985). In my view a matter of "public rights," whose adjudication Congress may assign to tribunals lacking the essential characteristics of Article III courts, "must at a minimum arise `between the government and others.' " Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 69 (1982) (plurality opinion), quoting Ex parte Bakelite Corp., 279 U.S. 438, 451 (1929). Until quite recently this has also been the consistent view of the Court. See 458 U.S., at 69, n. 23 ("[T]he presence of the United States as a proper party . . . is a necessary but not sufficient means of distinguishing `private rights' from `public rights' "); Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n, 430 U.S. 442, 450 (1977) (public rights cases are "cases in which the Government sues in its sovereign capacity to enforce public rights created by statutes"); id., at 457 (noting "distinction between cases of private right and those which arise between the Government and persons subject to its authority"); id., at 458 (situations involving "public rights" are those "where the Government is involved in its sovereign capacity under an otherwise valid statute creating enforceable public rights"); Crowell v. Benson, 285 U.S. 22, 50-51 (1932) (public rights are "those which arise between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments"); *66 Ex parte Bakelite Corp., supra, at 451 (public rights are those "arising between the government and others, which from their nature do not require judicial determination and yet are susceptible of it"); Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 283 (1856) (plaintiff's argument that a controversy susceptible of judicial determination must be a "judicial controversy" heard in an Article III court "leaves out of view the fact that the United States is a party").
The notion that the power to adjudicate a legal controversy between two private parties may be assigned to a non-Article III, yet federal, tribunal is entirely inconsistent with the origins of the public rights doctrine. The language of Article III itself, of course, admits of no exceptions; it directs unambiguously that 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." In Murray's Lessee, supra, however, we recognized a category of "public rights" whose adjudication, though a judicial act, Congress may assign to tribunals lacking the essential characteristics of Article III courts. That case involved the Act of May 15, 1820, 3 Stat. 592, which established a summary procedure for obtaining from collectors of federal revenue funds that they owed to the Treasury. Under that procedure, after a federal auditor made the determination that the funds were due, a "distress warrant" would be issued by the Solicitor of the Treasury, authorizing a United States marshal to seize and sell the personal property of the collector, and to convey his real property, in satisfaction of the debt. The United States' lien upon the real property would be effective upon the marshal's filing of the distress warrant in the district court of the district where the property was located. The debtor could, however, bring a challenge to the distress warrant in any United States district court, in which judicial challenge "every fact upon which the legality of the extra-judicial remedy depends may be drawn in[to] question," *67 18 How., at 284. Murray's Lessee involved a dispute over title to lands that had been owned by a former collector of customs whom the Treasury auditor had adjudged to be deficient in his remittances. The defendant had purchased the land in the marshal's sale pursuant to a duly issued distress warrant (which had apparently not been contested by the collector in any district court proceeding). The plaintiff, who had acquired the same land pursuant to the execution of a judgment against the collector, which execution occurred before the marshal's sale, but after the marshal's filing of the distress warrant to establish the lien, brought an action for ejectment to try title. He argued, inter alia, that the process by which the defendant had obtained title violated Article III because adjudication of the collector's indebtedness to the United States was inherently a judicial act, and could not lawfully have been performed by a Treasury auditor, but only by an Article III court. We rejected this contention by observing that although "the auditing of the accounts of a receiver of public moneys may be, in an enlarged sense, a judicial act," id., at 280, the English and American traditions established that it did not, without consent of Congress, give rise to a judicial "controversy" within the meaning of Article III.
It was in the course of answering the plaintiff's rejoinder to this holding that we uttered the words giving birth to the public rights doctrine. The plaintiff argued that if we were correct that the matter was "not in its nature a judicial controversy, congress could not make it such, nor give jurisdiction over it to the district courts" in the bills permitted to be filed by collectors challenging distress warrants so that "the fact that congress has enabled the district court to pass upon it, is conclusive evidence that it is a judicial controversy." Id., at 282. That argument, we said, "leaves out of view the fact that the United States is a party." Id., at 283. Unlike a private party who acts extrajudicially to recapture his property, the marshal who executes a distress warrant "cannot *68 be made responsible in a judicial tribunal for obeying the lawful command of the government; and the government itself, which gave the command, cannot be sued without its own consent," even though the issue in question is an appropriate matter for a judicial controversy. Ibid. Congress could, however, waive this immunity, so as to permit challenges to the factual bases of officers' actions in Article III courts; and this waiver did not have to place the proceeding in the courts unconditionally or ab initio, for the "United States may consent to be sued, and may yield this consent upon such terms and under such restrictions as it may think just." Ibid. Thus, we summed up, in the oft-quoted passage establishing the doctrine at issue here:
[T]here are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which Congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper." Id., at 284 (emphasis added).
It is clear that what we meant by public rights were not rights important to the public, or rights created by the public, but rights of the public that is, rights pertaining to claims brought by or against the United States. For central to our reasoning was the device of waiver of sovereign immunity, as a means of converting a subject which, though its resolution involved a "judicial act," could not be brought before the courts, into the stuff of an Article III "judicial controversy." Waiver of sovereign immunity can only be implicated, of course, in suits where the Government is a party. We understood this from the time the doctrine of public rights was born, in 1856, until two Terms ago, saying as recently as 1982 that the suits to which it applies "must at a minimum arise `between the government and others,' " Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U. S., at 69, quoting Ex parte Bakelite Corp., 279 *69 U. S., at 451. See also, in addition to the cases cited supra, at 65-66, Williams v. United States, 289 U.S. 553, 581 (1933) (noting sovereign immunity origins of legislative courts); Ex parte Bakelite, supra, at 453-454 (same). Cf. McElrath v. United States, 102 U.S. 426, 440 (1880).
In Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568 (1985), however, we decided to interpret the phrase "public rights" as though it had not been developed in the context just discussed and did not bear the meaning just described. We pronounced, as far as I can tell by sheer force of our office, that it applies to a right "so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary." Id., at 593-594 (emphasis added). The doctrine reflects, we announced, "simply a pragmatic understanding that when Congress selects a quasi-judicial method of resolving matters that `could be conclusively determined by the Executive and Legislative Branches,' the danger of encroaching on the judicial powers is reduced," id., at 589, quoting Northern Pipeline, supra, at 68 without pointing out, as had Murray's Lessee, that the only adjudications of private rights that "could be conclusively determined by the Executive and Legislative Branches" were a select category of private rights vis-a-vis the Government itself. We thus held in Thomas, for the first time, that a purely private federally created action did not require Article III courts.
There was in my view no constitutional basis for that decision. It did not purport to be faithful to the origins of the public rights doctrine in Murray's Lessee; nor did it replace the careful analysis of that case with some other reasoning that identifies a discrete category of "judicial acts" which, at the time the Constitution was adopted, were not thought to implicate a "judicial controversy." The lines sought to be established by the Constitution did not matter. "Pragmatic understanding" was all that counted in a case-by-case evaluation of whether the danger of "encroaching" on the "judicial *70 powers" (a phrase now drained of constant content) is too much. The Term after Thomas, in Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833 (1986), we reconfirmed our error, embracing the analysis of Thomas and describing at greater length the new Article III standard it established, which seems to me no standard at all:
"[I]n reviewing Article III challenges, we have weighed a number of factors, none of which has been deemed determinative, with an eye to the practical effect that the congressional action will have on the constitutionally assigned role of the federal judiciary. . . . Among the factors upon which we have focused are the extent to which the `essential attributes of judicial power' are reserved to Article III courts, and, conversely, the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts, the origins and importance of the right to be adjudicated, and the concerns that drove Congress to depart from the requirements of Article III." 478 U.S., at 851, citing Thomas, supra, at 587, 589-593.
I do not think one can preserve a system of separation of powers on the basis of such intuitive judgments regarding "practical effects," no more with regard to the assigned functions of the courts, see Mistretta v. United States, 488 U.S. 361, 426-427 (1989) (SCALIA, J., dissenting), than with regard to the assigned functions of the Executive, see Morrison v. Olson, 487 U.S. 654, 708-712 (1988) (SCALIA, J., dissenting). This central feature of the Constitution must be anchored in rules, not set adrift in some multifactored "balancing test" and especially not in a test that contains as its last and most revealing factor "the concerns that drove Congress to depart from the requirements of Article III." Schor, supra, at 851.
I would return to the longstanding principle that the public rights doctrine requires, at a minimum, that the United States be a party to the adjudication. On that basis, I concur in the Court's conclusion in Part IV of its opinion that *71 the Article III concomitant of a jury trial could not be eliminated here. Since I join the remainder of the Court's opinion, I concur in its judgment as well. | I join all but Part IV of the Court's opinion. I make that exception because I do not agree with the premise of its discussion: that "the Federal Government need not be a party for a case to revolve around `public rights.' " Ante, at 54, quoting In my view a matter of "public rights," whose adjudication Congress may assign to tribunals lacking the essential characteristics of Article III courts, "must at a minimum arise `between the government and others.' " Northern Construction quoting Ex parte Until quite recently this has also been the consistent view of the Court. See 458 U.S., at n. 23 ; Atlas Roofing ; ; ; ; *66 Ex parte at ; Murray's The notion that the power to adjudicate a legal controversy between two private parties may be assigned to a non-Article III, yet federal, tribunal is entirely inconsistent with the origins of the public rights doctrine. The language of Article III itself, of course, admits of no exceptions; it directs unambiguously that 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." In Murray's Lessee, however, we recognized a category of "public rights" whose adjudication, though a judicial act, Congress may assign to tribunals lacking the essential characteristics of Article III courts. That case involved the Act of May 15, 1820, which established a summary procedure for obtaining from collectors of federal revenue funds that they owed to the Treasury. Under that procedure, after a federal auditor made the determination that the funds were due, a "distress warrant" would be issued by the Solicitor of the Treasury, authorizing a United States marshal to seize and sell the personal property of the collector, and to convey his real property, in satisfaction of the debt. The United States' lien upon the real property would be effective upon the marshal's filing of the distress warrant in the district court of the district where the property was located. The debtor could, however, bring a challenge to the distress warrant in any United States district court, in which judicial challenge "every fact upon which the legality of the extra-judicial remedy depends may be drawn in[to] question," *67 Murray's Lessee involved a dispute over title to lands that had been owned by a former collector of customs whom the Treasury auditor had adjudged to be deficient in his remittances. The defendant had purchased the land in the marshal's sale pursuant to a duly issued distress warrant (which had apparently not been contested by the collector in any district court proceeding). The plaintiff, who had acquired the same land pursuant to the execution of a judgment against the collector, which execution occurred before the marshal's sale, but after the marshal's filing of the distress warrant to establish the lien, brought an action for ejectment to try title. He argued, inter alia, that the process by which the defendant had obtained title violated Article III because adjudication of the collector's indebtedness to the United States was inherently a judicial act, and could not lawfully have been performed by a Treasury auditor, but only by an Article III court. We rejected this contention by observing that although "the auditing of the accounts of a receiver of public moneys may be, in an enlarged sense, a judicial act," the English and American traditions established that it did not, without consent of Congress, give rise to a judicial "controversy" within the meaning of Article III. It was in the course of answering the plaintiff's rejoinder to this holding that we uttered the words giving birth to the public rights doctrine. The plaintiff argued that if we were correct that the matter was "not in its nature a judicial controversy, congress could not make it such, nor give jurisdiction over it to the district courts" in the bills permitted to be filed by collectors challenging distress warrants so that "the fact that congress has enabled the district court to pass upon it, is conclusive evidence that it is a judicial controversy." That argument, we said, "leaves out of view the fact that the United States is a party." at Unlike a private party who acts extrajudicially to recapture his property, the marshal who executes a distress warrant "cannot *68 be made responsible in a judicial tribunal for obeying the lawful command of the government; and the government itself, which gave the command, cannot be sued without its own consent," even though the issue in question is an appropriate matter for a judicial controversy. Congress could, however, waive this immunity, so as to permit challenges to the factual bases of officers' actions in Article III courts; and this waiver did not have to place the proceeding in the courts unconditionally or ab initio, for the "United States may consent to be sued, and may yield this consent upon such terms and under such restrictions as it may think just." Thus, we summed up, in the oft-quoted passage establishing the doctrine at issue here: [T]here are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which Congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper." It is clear that what we meant by public rights were not rights important to the public, or rights created by the public, but rights of the public that is, rights pertaining to claims brought by or against the United States. For central to our reasoning was the device of waiver of sovereign immunity, as a means of converting a subject which, though its resolution involved a "judicial act," could not be brought before the courts, into the stuff of an Article III "judicial controversy." Waiver of sovereign immunity can only be implicated, of course, in suits where the Government is a party. We understood this from the time the doctrine of public rights was born, in 1856, until two Terms ago, saying as recently as 1982 that the suits to which it applies "must at a minimum arise `between the government and others,' " Northern Construction 458 U. S., at quoting Ex parte 279 * U. S., at See also, in addition to the cases ; Ex parte Cf. In however, we decided to interpret the phrase "public rights" as though it had not been developed in the context just discussed and did not bear the meaning just described. We pronounced, as far as I can tell by sheer force of our office, that it applies to a right "so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary." The doctrine reflects, we announced, "simply a pragmatic understanding that when Congress selects a quasi-judicial method of resolving matters that `could be conclusively determined by the Executive and Legislative Branches,' the danger of encroaching on the judicial powers is reduced," quoting Northern at 68 without pointing out, as had Murray's Lessee, that the only adjudications of private rights that "could be conclusively determined by the Executive and Legislative Branches" were a select category of private rights vis-a-vis the Government itself. We thus held in for the first time, that a purely private federally created action did not require Article III courts. There was in my view no constitutional basis for that decision. It did not purport to be faithful to the origins of the public rights doctrine in Murray's Lessee; nor did it replace the careful analysis of that case with some other reasoning that identifies a discrete category of "judicial acts" which, at the time the Constitution was adopted, were not thought to implicate a "judicial controversy." The lines sought to be established by the Constitution did not matter. "Pragmatic understanding" was all that counted in a case-by-case evaluation of whether the danger of "encroaching" on the "judicial *70 powers" (a phrase now drained of constant content) is too much. The Term after in Commodity Futures Trading we reconfirmed our error, embracing the analysis of and describing at greater length the new Article III standard it established, which seems to me no standard at all: "[I]n reviewing Article III challenges, we have weighed a number of factors, none of which has been deemed determinative, with an eye to the practical effect that the congressional action will have on the constitutionally assigned role of the federal judiciary. Among the factors upon which we have focused are the extent to which the `essential attributes of judicial power' are reserved to Article III courts, and, conversely, the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts, the origins and importance of the right to be adjudicated, and the concerns that drove Congress to depart from the requirements of Article III." citing I do not think one can preserve a system of separation of powers on the basis of such intuitive judgments regarding "practical effects," no more with regard to the assigned functions of the courts, see than with regard to the assigned functions of the Executive, see This central feature of the Constitution must be anchored in rules, not set adrift in some multifactored "balancing test" and especially not in a test that contains as its last and most revealing factor "the concerns that drove Congress to depart from the requirements of Article III." Schor, I would return to the longstanding principle that the public rights doctrine requires, at a minimum, that the United States be a party to the adjudication. On that basis, I concur in the Court's conclusion in Part IV of its opinion that *71 the Article III concomitant of a jury trial could not be eliminated here. Since I join the remainder of the Court's opinion, I concur in its judgment as well. |
Justice Douglas | majority | false | United States v. District Court for Eagle County | 1971-03-24T00:00:00 | null | https://www.courtlistener.com/opinion/108293/united-states-v-district-court-for-eagle-county/ | https://www.courtlistener.com/api/rest/v3/clusters/108293/ | 1,971 | 1970-065 | 1 | 9 | 0 | Eagle River is a tributary of the Colorado River; and Water District 37 is a Colorado entity encompassing all Colorado lands irrigated by water of the Eagle and its tributaries. The present case started in the Colorado courts and is called a supplemental water adjudication under Colo. Rev. Stat. Ann. § 148-9-7 (1963). The Colorado court issued a notice which, inter alia, asked all *522 owners and claimants of water rights in those streams "to file a statement of claim and to appear . . . in regard to all water rights owned or claimed by them." The United States was served with this notice pursuant to 43 U.S. C. § 666.[1] The United States moved to be dismissed as a party, asserting that 43 U.S. C. § 666 does not constitute consent to have adjudicated in a state court the reserved water rights of the United States.
The objections of the United States were overruled by the state District Court and on a motion for a writ of prohibition the Colorado Supreme Court took the same view. 169 Colo. 555, 458 P.2d 760. The case is here on a petition for certiorari, which we granted. 397 U.S. 1005.
We affirm the Colorado decree.
It is clear from our cases that the United States often has reserved water rights based on withdrawals from the public domain. As we said in Arizona v. California, 373 U.S. 546, the Federal Government had the authority both before and after a State is admitted into the Union "to reserve waters for the use and benefit of *523 federally reserved lands." Id., at 597. The federally reserved lands include any federal enclave. In Arizona v. California we were primarily concerned with Indian reservations. Id., at 598-601. The reservation of waters may be only implied and the amount will reflect the nature of the federal enclave. Id., at 600-601. Here the United States is primarily concerned with reserved waters for the White River National Forest, withdrawn in 1905, Colorado having been admitted into the Union in 1876.
The United States points out that Colorado water rights are based on the appropriation system which requires the permanent fixing of rights to the use of water at the time of the adjudication, with no provision for the future needs, as is often required in case of reserved water rights.[2]Ibid. Since those rights may potentially be at war with appropriative rights, it is earnestly urged that 43 U.S. C. § 666 gave consent to join the United States only for the adjudication of water rights which the United States acquired pursuant to state law.
The consent to join the United States "in any suit (1) for the adjudication of rights to the use of water of a river system or other source" would seem to be all-inclusive. We deem almost frivolous the suggestion that the Eagle and its tributaries are not a "river system" within the meaning of the Act. No suit by any State could possibly encompass all of the water rights in the entire Colorado River which runs through or touches many States. The "river system" must be read as embracing one within the particular State's jurisdiction. With that to one side, the first clause of § 666 (a) (1), read literally, would seem to cover this case for "rights to the use of water of a river system" is broad enough to embrace "reserved" waters.
*524 The main reliance of the United States appears to be on Clause 2 of § 666 (a) which reads:
". . . for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise."
This provision does not qualify § 666 (a) (1), for (1) and (2) are separated by an "or." Yet even if "or" be read as "and," we see no difficulty with Colorado's position. Section 666 (a) (2) obviously includes water rights previously acquired by the United States through appropriation or presently in the process of being so acquired. But we do not read § 666 (a) (2) as being restricted to appropriative rights acquired under state law. In the first place "the administration of such rights" in § 666 (a) (2) must refer to the rights described in (1) for they are the only ones which in this context "such" could mean; and as we have seen they are all-inclusive, in terms at least. Moreover, (2) covers rights acquired by appropriation under state law and rights acquired "by purchase" or "by exchange," which we assume would normally be appropriative rights. But it also includes water rights which the United States has "otherwise" acquired. The doctrine of ejusdem generis is invoked to maintain that "or otherwise" does not encompass the adjudication of reserved water rights, which are in no way dependent for their creation or existence on state law.[3] We reject that conclusion for we deal with an all-inclusive statute concerning "the adjudication of rights to the use of water of a river system" which in § 666 (a) (1) has no exceptions and which, as we read it, includes appropriative rights, riparian rights, and reserved rights.
*525 It is said that this adjudication is not a "general" one as required by Dugan v. Rank, 372 U.S. 609, 618. This proceeding, unlike the one in Dugan, is not a private one to determine whether named claimants have priority over the United States. The whole community of claims is involved and as Senator McCarran, Chairman of the Committee reporting on the bill, said in reply to Senator Magnuson:[4] "S. 18 is not intended . . . to be used for any other purpose than to allow the United States to be joined in a suit wherein it is necessary to adjudicate all of the rights of various owners on a given stream. This is so because unless all of the parties owning or in the process of acquiring water rights on a particular stream can be joined as parties defendant, any subsequent decree would be of little value."
It is said, however, that since this is a supplemental adjudication only those who claim water rights acquired since the last adjudication of that water district are before the court.[5] It is also said that the earliest priority date decreed in such an adjudication must be later than the last priority date decreed in the preceding adjudication.[6] The last water adjudication in this water district was entered on February 21, 1966, and the United States was not a party to that or to any prior proceeding in this water district. The United States accordingly says that since the United States cannot be barred by the previous decrees and since the owners of previously decreed rights are not before the court, the consent envisaged by 43 U.S. C. § 666 is not present.
We think that argument is extremely technical; and we decline to confine 43 U.S. C. § 666 so narrowly. The absence of owners of previously decreed rights may present *526 problems going to the merits, in case there develops a collision between them and any reserved rights of the United States.[7] All such questions, including the volume and scope of particular reserved rights, are federal questions which, if preserved, can be reviewed here after final judgment by the Colorado court.
Affirmed.
[For concurring statement of MR. JUSTICE HARLAN, see post, p. 530.]
| Eagle River is a tributary of the Colorado River; and Water District 37 is a Colorado entity encompassing all Colorado lands irrigated by water of the Eagle and its tributaries. The present case started in the Colorado courts and is called a supplemental water adjudication under (1963). The Colorado court issued a notice which, inter alia, asked all *522 owners and claimants of water rights in those streams "to file a statement of claim and to appear in regard to all water rights owned or claimed by them." The United States was served with this notice pursuant to 43 U.S. C. 666.[1] The United States moved to be dismissed as a party, asserting that 43 U.S. C. 666 does not constitute consent to have adjudicated in a state court the reserved water rights of the United States. The objections of the United States were overruled by the state District Court and on a motion for a writ of prohibition the Colorado Supreme Court took the same view. The case is here on a petition for certiorari, which we granted. We affirm the Colorado decree. It is clear from our cases that the United States often has reserved water rights based on withdrawals from the public domain. As we said in the Federal Government had the authority both before and after a State is admitted into the Union "to reserve waters for the use and benefit of *523 federally reserved lands." The federally reserved lands include any federal enclave. In we were primarily concerned with Indian reservations. The reservation of waters may be only implied and the amount will reflect the nature of the federal enclave. Here the United States is primarily concerned with reserved waters for the White River National Forest, withdrawn in 1905, Colorado having been admitted into the Union in 1876. The United States points out that Colorado water rights are based on the appropriation system which requires the permanent fixing of rights to the use of water at the time of the adjudication, with no provision for the future needs, as is often required in case of reserved water rights.[2]Ibid. Since those rights may potentially be at war with appropriative rights, it is earnestly urged that 43 U.S. C. 666 gave consent to join the United States only for the adjudication of water rights which the United States acquired pursuant to state law. The consent to join the United States "in any suit (1) for the adjudication of rights to the use of water of a river system or other source" would seem to be all-inclusive. We deem almost frivolous the suggestion that the Eagle and its tributaries are not a "river system" within the meaning of the Act. No suit by any State could possibly encompass all of the water rights in the entire Colorado River which runs through or touches many States. The "river system" must be read as embracing one within the particular State's jurisdiction. With that to one side, the first clause of 666 (a) (1), read literally, would seem to cover this case for "rights to the use of water of a river system" is broad enough to embrace "reserved" waters. *524 The main reliance of the United States appears to be on Clause 2 of 666 (a) which reads: ". for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise." This provision does not qualify 666 (a) (1), for (1) and (2) are separated by an "or." Yet even if "or" be read as "and," we see no difficulty with Colorado's position. Section 666 (a) (2) obviously includes water rights previously acquired by the United States through appropriation or presently in the process of being so acquired. But we do not read 666 (a) (2) as being restricted to appropriative rights acquired under state law. In the first place "the administration of such rights" in 666 (a) (2) must refer to the rights described in (1) for they are the only ones which in this context "such" could mean; and as we have seen they are all-inclusive, in terms at least. Moreover, (2) covers rights acquired by appropriation under state law and rights acquired "by purchase" or "by exchange," which we assume would normally be appropriative rights. But it also includes water rights which the United States has "otherwise" acquired. The doctrine of ejusdem generis is invoked to maintain that "or otherwise" does not encompass the adjudication of reserved water rights, which are in no way dependent for their creation or existence on state law.[3] We reject that conclusion for we deal with an all-inclusive statute concerning "the adjudication of rights to the use of water of a river system" which in 666 (a) (1) has no exceptions and which, as we read it, includes appropriative rights, riparian rights, and reserved rights. *525 It is said that this adjudication is not a "general" one as required by This proceeding, unlike the one in Dugan, is not a private one to determine whether named claimants have priority over the United States. The whole community of claims is involved and as Senator McCarran, Chairman of the Committee reporting on the bill, said in reply to Senator Magnuson:[4] "S. 18 is not intended to be used for any other purpose than to allow the United States to be joined in a suit wherein it is necessary to adjudicate all of the rights of various owners on a given stream. This is so because unless all of the parties owning or in the process of acquiring water rights on a particular stream can be joined as parties defendant, any subsequent decree would be of little value." It is said, however, that since this is a supplemental adjudication only those who claim water rights acquired since the last adjudication of that water district are before the court.[5] It is also said that the earliest priority date decreed in such an adjudication must be later than the last priority date decreed in the preceding adjudication.[6] The last water adjudication in this water district was entered on February 21, 1966, and the United States was not a party to that or to any prior proceeding in this water district. The United States accordingly says that since the United States cannot be barred by the previous decrees and since the owners of previously decreed rights are not before the court, the consent envisaged by 43 U.S. C. 666 is not present. We think that argument is extremely technical; and we decline to confine 43 U.S. C. 666 so narrowly. The absence of owners of previously decreed rights may present *526 problems going to the merits, in case there develops a collision between them and any reserved rights of the United States.[7] All such questions, including the volume and scope of particular reserved rights, are federal questions which, if preserved, can be reviewed here after final judgment by the Colorado court. Affirmed. [For concurring statement of MR. JUSTICE HARLAN, see post, p. 530.] |
Justice Stevens | dissenting | false | Maislin Industries, US, Inc. v. Primary Steel, Inc. | 1990-06-21T00:00:00 | null | https://www.courtlistener.com/opinion/112473/maislin-industries-us-inc-v-primary-steel-inc/ | https://www.courtlistener.com/api/rest/v3/clusters/112473/ | 1,990 | 1989-121 | 2 | 7 | 2 | The "filed rate doctrine" was developed in the 19th century as part of a program to regulate the ruthless exercise of monopoly power by the Nation's railroads. Today the Court places an interpretation on that doctrine even more strict than the original version. In doing so, the Court misreads the text of the Interstate Commerce Act (Act), 49 U.S. C. § 10101 et seq. (1982 ed.), ignores the history of motor carrier *139 regulation in this country, and gives no deference to the sensible construction of the Act by six Courts of Appeals[1] and the administrative agency responsible for its enforcement. Most significantly, the majority fails to appreciate the significance of the "sea change" in the statutory scheme that has converted a regime of regulated monopoly pricing into a highly competitive market. Even wearing his famous blinders, old Dobbin would see through the tired arguments the Court accepts today.
I
As originally enacted in 1887, the Act provided, in part:
"And when any such common carrier shall have established and published its rates, fares, and charges in compliance with the provisions of this section, it shall be unlawful for such common carrier to charge, demand, collect, or receive from any person or persons a greater or less compensation for the transportation of passengers or property, or for any services in connection therewith, than is specified in such published schedule of rates, fares, and charges as may at the time be in force." 24 Stat. 381.
Read literally, this text commanded strict adherence to the tariffs filed by a carrier. From the beginning, however, the Court construed that command as subject to the unstated exception *140 that a filed rate would not be enforced if the Interstate Commerce Commission (Commission) determined that the rates were "unreasonable."[2] Amendments to the Act incorporated language that expressly allows exceptions in cases in which the Commission determines that strict enforcement would be unreasonable.[3]
Thus, 49 U.S. C. § 10761(a) (1982 ed.) now provides:
"Except as provided in this subtitle, a carrier providing transportation or service subject to the jurisdiction of the Interstate Commerce Commission under chapter 105 of this title shall provide that transportation or service only if the rate for the transportation or service is contained in a tariff that is in effect under this subchapter. That carrier may not charge or receive a different compensation for that transportation or service than the rate specified in the tariff whether by returning a part of that rate to a person, giving a person a privilege, allowing the use of a facility that affects the value of that transportation or service, or another device." (Emphasis added.)
The emphasized language in the foregoing provision obviously refers, inter alia, to § 10701(a) which states, in part:
*141 "A rate (other than a rail rate), classification, rule, or practice related to transportation or service provided by a carrier subject to the jurisdiction of the Interstate Commerce Commission under chapter 105 of this title must be reasonable." (Emphasis added.)
Furthermore, § 10704(b) expressly authorizes the Commission, after finding that a rate or practice of a carrier is unreasonable, to prescribe the rate or practice that the carrier must follow.[4]
The action of the Commission in this case faithfully tracks its statutory grant of authority. After considering all of the relevant evidence, the Commission determined "that it would be an unreasonable practice now to require Primary to pay undercharges for the difference between the negotiated rates and the tariff rates." App. to Pet. for Cert. 44a. That determination was unquestionably consistent with the plain language of the statute governing the Commission's authority. A carrier's failure to file negotiated rates obviously does not make it reasonable for the carrier to quote low rates and collect higher ones; the Commission is free to find, as it has done, that a practice of misquotation, failure to file, and subsequent collection is unreasonable under § 10701(a).
The Court offers no reason whatsoever to doubt this conclusion. Indeed, the Court's discussion of the statutory text consists almost entirely of vague references to some unarticulated *142 interplay between §§ 10761(a) and 10762(a)(1),[5] see ante, at 126-127, an interplay which the Court contends would be "render[ed] nugatory" if carriers are not permitted to obtain payment of the filed rate when they have led shippers to rely upon a lower negotiated rate. Ante, at 133. For the reasons I have already stated, the text of those provisions does not generate any "interplay" capable of sustaining so rigid an inference. The Court virtually concedes as much, for it recognizes that the unreasonableness of a rate is a longstanding ground for denying collection of the filed rate, ante, at 128-129, and n. 10, and refuses to hold that the unreasonableness of a practice can never bar collection of a filed rate, ante, at 129-130.
Having admitted that the doctrine synthesized from the "interplay" between §§ 10761(a) and 10762(a)(1) is susceptible of exceptions based upon the nature of a carrier's rates and practices, the Court can argue only that this particular exception is impermissible.[6] The source of the exceptions is, *143 however, not the "interplay" that dominates the majority's reasoning, but the combined effect of the "Except as otherwise provided" language of § 10761(a) and the express authority to determine reasonableness granted to the Commission by § 10701(a). This second "interplay" gets little attention from the majority, and it is difficult to see how the text of either component might yield the distinction which the majority insists upon drawing. Nor can the Court mean that the exception literally voids the obligations imposed by §§ 10761(a) and 10762(a)(1), because the Commission maintains, and the Court does not deny, that the filed rate doctrine would still provide an effective right to recover for undercharges in some cases. See, e. g., NITLPetition to Institute Rulemaking on Negotiated Motor Common Carrier Rates, 5 I. C. C. 2d 623, 629, and n. 13 (1989). Moreover, even if the "filed rate doctrine" were discarded entirely, a knowing or willful failure to comply with §§ 10761(a) and 10762(a)(1) may subject a carrier to prosecution.[7]
*144 The Court's assertion that the agency policy now before us "renders nugatory" the "interplay" between §§ 10761(a) and 10762(a)(1) therefore amounts to no more than an observation that the policy substantially diminishes the importance of the "filed rate doctrine" as a means for enforcing those sections. Consideration of the statute's structure makes all the more clear what should already be evident from the statutory text: The Court's observation is true but utterly irrelevant.
II
Because no particular provision of the statute supports the Court's position, its principal argument must be that the agency's construction of the Act is inconsistent with the regulatory scheme as a whole. See ante, at 131. There are, of course, important differences between markets in which prices are regulated, either by private cartels or by public authority, and those in which prices are the product of independent decisions by competitors. Rules requiring adherence to predetermined prices are characteristic of regulated markets, but are incompatible with independent pricing in a competitive market.[8] The "filed rate doctrine" has played an important role, not just in the segments of the transportation industry regulated by the Commission, but in other regulated markets as well.[9] It requires the courts to respect the public agency's control over *145 market prices and industry practices; moreover, it significantly reduces the temptation of regulated parties to deviate from the marketwide rules formulated by the agency.
The filed rate doctrine has been a part of our law during the century of regulation of the railroad industry by the Commission. In 1935, when Congress decided to impose economic regulation on the motor carrier industry, partly if not primarily in order to protect the railroads from too much competition,[10] the filed rate doctrine was applied to their rates just as it had previously applied to the railroads. It had the same regulatory purpose.[11] In its applications during *146 the period of regulatory control over motor carrier ratemaking, the doctrine was for the most part applied to reinforce the policies and the decisions of the regulatory agency.[12]
*147 After years of debate over whether it was sound policy to substitute regulation for competition in the motor carrier industry, Congress decided to eliminate the regulatory barriers to free entry and individual ratemaking. The 1980 amendments to the Act represented a fundamental policy choice in favor of deregulation."[13] Overnight the application of the filed rate doctrine in that market became an anachronism. As Judge Posner has explained:
"Many years later came deregulation, which has changed the trucking industry beyond recognition. As a result of amendments made to the Motor Carrier Act in 1980 and their interpretation by the Commission, the present regime is essentially one of free competition. No longer does the ICC seek to nurture and protect cartel pricing and division of markets. A motor carrier that wants to lower its price can file a new tariff effective the following day. Short Notice Effectiveness for Independently Filed Motor Carrier and Freight Forwarder Rates, 1 1. C. C. 2d 146 (1984), affirmed as Southern Motor Carriers Rate Conference v. United States, 773 F.2d 1561 (11th Cir. 1985). No longer does the Commission seek to limit the number of motor carriers, which *148 has more than doubled in less than a decade. Most important, a carrier and shipper who want to get out from under tariff regulation altogether have only to negotiate a contract of carriage, and then the lawful price is the price in the contract rather than in any filed tariff. There used to be all sorts of restrictions on contract carriage, which greatly limited it as an escape hatch from regulation. There are no longer. Wheaton Van Lines, Inc. v. ICC, 731 F.2d 1264 (7th Cir. 1984). The skeleton of regulation remains; the flesh has been stripped away." Orscheln Bros. Truck Lines, Inc. v. Zenith Electric Corp., 899 F.2d 642, 644 (CA7 1990).
The significance of these fundamental changes was also noted and explained by Judge Alarcon:
"A variety of practices that previously would have been considered discriminatory are now allowed. For example, the ICC has recently ruled that volume discount rates are not per se unlawful and may be justified by cost savings to the carrier. See Lawfulness of Volume Discount Rates by Motor Common Carrier of Property, 365 I. C. C. 711, 715-16 (1982). Moreover, carriers may impose geographic or product line restrictions that must be met to obtain rate reductions. See Rates for Named Shipper or Receiver, 367 I. C. C. 959, 962-965 (1984).
"In addition to increased competitive pressures, statutory changes, and a relaxed regulatory climate, the ICC's Negotiated Rates decisions are a practical response to the information costs faced by shippers. The ease of filing tariffs and the sheer number filed no longer makes it appropriate to allocate the burden of discovering a filed rate to the shipper in all cases. Reduced tariff rates may now be filed to become effective on one day's notice." West Coast Truck Lines, Inc. v. Weyerhaeuser Co., 893 F.2d 1016, 1026 (CA9 1990).
*149 The Court catalogs these reforms, ante, at 133-134, but fails to analyze their implications for the "reasonableness" requirement of § 10701(a) and, consequently, for the provisions of § 10761(a). What the Court now misses has been succinctly set forth by Judge Alarcon:
"The ICC's determination that the collection of undercharges constitutes an unreasonable practice if the shipper is unaware of the filed rate is also a reflection of changing legislative goals. Congress modified national transportation policy when it amended 49 U.S. C. § 10101(a) in the Motor Carrier Act of 1980. Section 10101(a)(2) now directs the Commission, `in regulating transportation by motor carrier, to promote competitive and efficient transportation services in order to (A) meet the needs of shippers, receivers, passengers, and consumers; [and] (B) allow a variety of quality and price options to meet changing market demands and the diverse requirements of the shipping and traveling public ....' 49 U.S. C. § 10101(a)(1)(A), (B) (1982). In addition, § 10101(a)(1)(D) directs the ICC to encourage the establishment of reasonable transportation rates without `unfair or destructive competitive practices.' 49 U.S. C. § 10101(a)(1)(D) (1982). Congress intended these sections of the Motor Carrier Act `to emphasize the importance of competition and efficiency as the most desirable means for achieving transportation goals while, at the same time, providing the Commission with sufficient flexibility to promote the public interest.' H. R. Rep. No. 96-1069, 96th Cong., 2d Sess. 12, reprinted in 1980 U. S. Code Cong. & Admin. News 2283, 2294.
"Section 10701(a) provides the ICC with the mechanism to put into effect Congress' restated goals of national transportation policy. By declaring the adherence to filed rates unreasonable under the circumstances presented in this case, the ICC has demonstrated its intention to prevent carriers from engaging in unfair *150 competitive practices." Weyerhaeuser, 893 F. 2d, at 1026-1027.
Despite the Court's puzzling suggestion that the filed rate doctrine is essential to the "core purposes of the Act," ante, at 133, the doctrine is instead, as the Court elsewhere seems to concede, "an anachronism in the wake of the [Motor Carrier Act of 1980]," ante, at 136. If plain text is a poor basis for the Court's holding, statutory purpose is altogether worse. As Judge Posner has explained:
"Counsel for the carrier in this casewhich is to say for the carrier's trustee in bankruptcyconceded at argument that the motor carrier industry is today highly competitive. But if so, the filed-rate doctrine has lost its raison d'etre. The classic explanations for the doctrine are from a different world. `If a mistake in naming a rate between two given points is to be accepted as requiring the application of that rate by the carrier, the great principle of equality in rates, to secure which was the very purpose and object of the enactment of these several statutes, might as well be abandoned.' Poor v. Chicago, Burlington & Quincy Ry., supra, 12 I. C. C. at 421. `Stability and equality of rates are more important to commercial interests than reduced rates.' Id., at 422. `Occasional hardships may result from any inelastic rule of general application. The principle, however, is vital in our commercial life that there shall be one fixed and absolutely rigid rate governing the transportation at a given time of any given commodity between two given points.' Id., at 423.
"Cessante ratione legis, cessat et ipsa lex. Firms in a competitive market cannot discriminate against weak shippers, for even the weak shipper has, by definition of competition, alternative sources of supply to which to turn if one of his suppliers tries to make a monopoly profit off him. `In the more competitive, more flexible pricing atmosphere created by [deregulation], there is *151 little likelihood of carriers using a rate misquotation as a means to discriminate in favor of particular shippers.' Petition to Institute Rulemaking on Negotiated Motor Common Carrier Rates, supra, 5 I. C. C. 2d at 625. And since it is no longer the policy of Congress or the ICC to foster monopoly pricing in the motor carrier industry, no public object is served by forcing carriers to adhere to published price schedules regardless of circumstances. All this the Commission found and persuasively articulated in National Industrial Transportation League, supra, 3 I. C. C. 2d at 104-08." Orscheln, 899 F. 2d, at 644-645.
Judge Posner's conclusion that strict mechanical adherence to the filed rate doctrine produces absurd results and serves no social purpose, id., at 645, is one that I share. It is likewise shared by the agency charged with administration of the Act.
III
A few years ago, in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), we reiterated the importance of giving appropriate deference to an agency's reasonable interpretation of its governing statute. Indeed, long before our decision in Chevron, we recognized that even when faced with a "long history of the Commission's construction and application of the Act contrary to its present position," American Trucking Assns., Inc. v. Atchison, T. & S. F. R. Co., 387 U.S. 397, 415 (1967), we must defer to the Commission's interpretation of a statute which it is responsible for administering:
"[W]e agree that the Commission, faced with new developments or in light of reconsideration of the relevant facts and its mandate, may alter its past interpretation and overturn past administrative rulings and practice.. . . In fact, although we make no judgment as to the policy aspects of the Commission's action, this kind of flexibility *152 and adaptibility to changing needs and patterns of transportation is an essential part of the office of a regulatory agency." Id., at 416.
Four Courts of Appeals have expressly invoked Chevron in the course of upholding the agency action challenged in this case,[14] but this Court does not deem Chevronor any other case involving deference to agency actionworthy of extended discussion. The Court dismisses Chevron by means of a conclusory assertion that the agency's interpretation is inconsistent with "the statutory scheme as a whole." Ante, at 131. Insofar as the Court offers any justification for that result, it does so by relying on cases in which this Court's action was entirely consistent with the agency's interpretation of the Act.[15] The fact that the Court has strictly enforced the filed rate doctrine in the many cases in which it served the agency's regulatory purposes provides no justification for enforcing the doctrine in a competitive market in which it frustrates the agency's attempt to carry out the plainly expressed intent of Congress.
The Court's failure to adhere today to the teaching of Chevron is compounded by its misplaced reliance on Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409 (1986). See ante, at 134-135. In Square D, we adhered to a longstanding settled construction of § 4 of the Clayton Act that had not been affected by any subsequent statutory amendment. No question of agreeing or disagreeing with agency action, or with an agency's interpretation of a congressional policy choice, was presented. That case is therefore totally inapplicable to the question presented here. Even less persuasive authority for the Court's position is California v. FERC, 495 U.S. 490 (1990), see ante, at 131, 135, a case in which we upheld *153 an agency interpretation that conformed to longstanding precedent.
IV
Finally, I must express my emphatic agreement with the Commission's conclusion, App. to Pet. for Cert. 44a, that an unreasonable practice would result if the carrier in this case were rewarded for violating its duty to file a new rate promptly. There is no evidence of discrimination in this record; nor is there any reason to believe that any shipper or any competing motor carrier was harmed by the negotiated rate or by the failure to file it. The only consequence of today's misguided decision is to produce a bonanza for the bankruptcy bar. "Now that off-tariff pricing is harmless to the (de)regulatory scheme, the only purpose served by making the statutory obligation to price in conformity with published tariffs draconian is to provide windfalls for unsecured creditors in bankruptcy." Orscheln, 899 F. 2d, at 646.
As Justice Black said more than 30 years ago in similar circumstances, "I am unable to understand why the Court strains so hard to reach so bad a result." T. I. M. E. Inc. v. United States, 359 U.S. 464, 481 (1959) (dissenting opinion). The Court's analysis is plausible only if read as a historical excursus about a statute that no longer exists. Nothing more than blind adherence to language in cases that have nothing to do with the present situation supports today's result.
I respectfully dissent.
| The "filed rate doctrine" was developed in the 19th century as part of a program to regulate the ruthless exercise of monopoly power by the Nation's railroads. Today the Court places an interpretation on that doctrine even more strict than the original version. In doing so, the Court misreads the text of the Interstate Commerce Act (Act), 49 U.S. C. 10101 et seq. (1982 ed.), ignores the history of motor carrier *139 regulation in this country, and gives no deference to the sensible construction of the Act by six Courts of Appeals[1] and the administrative agency responsible for its enforcement. Most significantly, the majority fails to appreciate the significance of the "sea change" in the statutory scheme that has converted a regime of regulated monopoly pricing into a highly competitive market. Even wearing his famous blinders, old Dobbin would see through the tired arguments the Court accepts today. I As originally enacted in 1887, the Act provided, in part: "And when any such common carrier shall have established and published its rates, fares, and charges in compliance with the provisions of this section, it shall be unlawful for such common carrier to charge, demand, collect, or receive from any person or persons a greater or less compensation for the transportation of passengers or property, or for any services in connection therewith, than is specified in such published schedule of rates, fares, and charges as may at the time be in force." Read literally, this text commanded strict adherence to the tariffs filed by a carrier. From the beginning, however, the Court construed that command as subject to the unstated exception *140 that a filed rate would not be enforced if the Interstate Commerce Commission (Commission) determined that the rates were "unreasonable."[2] Amendments to the Act incorporated language that expressly allows exceptions in cases in which the Commission determines that strict enforcement would be unreasonable.[3] Thus, 49 U.S. C. 10761(a) (1982 ed.) now provides: "Except as provided in this subtitle, a carrier providing transportation or service subject to the jurisdiction of the Interstate Commerce Commission under chapter 105 of this title shall provide that transportation or service only if the rate for the transportation or service is contained in a tariff that is in effect under this subchapter. That carrier may not charge or receive a different compensation for that transportation or service than the rate specified in the tariff whether by returning a part of that rate to a person, giving a person a privilege, allowing the use of a facility that affects the value of that transportation or service, or another device." (Emphasis added.) The emphasized language in the foregoing provision obviously refers, inter alia, to 10701(a) which states, in part: *141 "A rate (other than a rail rate), classification, rule, or practice related to transportation or service provided by a carrier subject to the jurisdiction of the Interstate Commerce Commission under chapter 105 of this title must be reasonable." (Emphasis added.) Furthermore, 10704(b) expressly authorizes the Commission, after finding that a rate or practice of a carrier is unreasonable, to prescribe the rate or practice that the carrier must follow.[4] The action of the Commission in this case faithfully tracks its statutory grant of authority. After considering all of the relevant evidence, the Commission determined "that it would be an unreasonable practice now to require Primary to pay undercharges for the difference between the negotiated rates and the tariff rates." App. to Pet. for Cert. 44a. That determination was unquestionably consistent with the plain language of the statute governing the Commission's authority. A carrier's failure to file negotiated rates obviously does not make it reasonable for the carrier to quote low rates and collect higher ones; the Commission is free to find, as it has done, that a practice of misquotation, failure to file, and subsequent collection is unreasonable under 10701(a). The Court offers no reason whatsoever to doubt this conclusion. Indeed, the Court's discussion of the statutory text consists almost entirely of vague references to some unarticulated *142 interplay between 10761(a) and 10762(a)(1),[5] see ante, at 126-127, an interplay which the Court contends would be "render[ed] nugatory" if carriers are not permitted to obtain payment of the filed rate when they have led shippers to rely upon a lower negotiated rate. Ante, at 133. For the reasons I have already stated, the text of those provisions does not generate any "interplay" capable of sustaining so rigid an inference. The Court virtually concedes as much, for it recognizes that the unreasonableness of a rate is a longstanding ground for denying collection of the filed rate, ante, at 128-129, and n. 10, and refuses to hold that the unreasonableness of a practice can never bar collection of a filed rate, ante, at 129-130. Having admitted that the doctrine synthesized from the "interplay" between 10761(a) and 10762(a)(1) is susceptible of exceptions based upon the nature of a carrier's rates and practices, the Court can argue only that this particular exception is impermissible.[6] The source of the exceptions is, *143 however, not the "interplay" that dominates the majority's reasoning, but the combined effect of the "Except as otherwise provided" language of 10761(a) and the express authority to determine reasonableness granted to the Commission by 10701(a). This second "interplay" gets little attention from the majority, and it is difficult to see how the text of either component might yield the distinction which the majority insists upon drawing. Nor can the Court mean that the exception literally voids the obligations imposed by 10761(a) and 10762(a)(1), because the Commission maintains, and the Court does not deny, that the filed rate doctrine would still provide an effective right to recover for undercharges in some cases. See, e. g., NITLPetition to Institute Rulemaking on Negotiated Motor Common Carrier Rates, 5 I. C. C. 2d 623, 629, and n. 13 (1989). Moreover, even if the "filed rate doctrine" were discarded entirely, a knowing or willful failure to comply with 10761(a) and 10762(a)(1) may subject a carrier to prosecution.[7] *144 The Court's assertion that the agency policy now before us "renders nugatory" the "interplay" between 10761(a) and 10762(a)(1) therefore amounts to no more than an observation that the policy substantially diminishes the importance of the "filed rate doctrine" as a means for enforcing those sections. Consideration of the statute's structure makes all the more clear what should already be evident from the statutory text: The Court's observation is true but utterly irrelevant. II Because no particular provision of the statute supports the Court's position, its principal argument must be that the agency's construction of the Act is inconsistent with the regulatory scheme as a whole. See ante, at 131. There are, of course, important differences between markets in which prices are regulated, either by private cartels or by public authority, and those in which prices are the product of independent decisions by competitors. Rules requiring adherence to predetermined prices are characteristic of regulated markets, but are incompatible with independent pricing in a competitive market.[8] The "filed rate doctrine" has played an important role, not just in the segments of the transportation industry regulated by the Commission, but in other regulated markets as well.[9] It requires the courts to respect the public agency's control over *145 market prices and industry practices; moreover, it significantly reduces the temptation of regulated parties to deviate from the marketwide rules formulated by the agency. The filed rate doctrine has been a part of our law during the century of regulation of the railroad industry by the Commission. In 1935, when Congress decided to impose economic regulation on the motor carrier industry, partly if not primarily in order to protect the railroads from too much competition,[10] the filed rate doctrine was applied to their rates just as it had previously applied to the railroads. It had the same regulatory purpose.[11] In its applications during *146 the period of regulatory control over motor carrier ratemaking, the doctrine was for the most part applied to reinforce the policies and the decisions of the regulatory agency.[12] *147 After years of debate over whether it was sound policy to substitute regulation for competition in the motor carrier industry, Congress decided to eliminate the regulatory barriers to free entry and individual ratemaking. The 1980 amendments to the Act represented a fundamental policy choice in favor of deregulation."[13] Overnight the application of the filed rate doctrine in that market became an anachronism. As Judge Posner has explained: "Many years later came deregulation, which has changed the trucking industry beyond recognition. As a result of amendments made to the Motor Carrier Act in 1980 and their interpretation by the Commission, the present regime is essentially one of free competition. No longer does the ICC seek to nurture and protect cartel pricing and division of markets. A motor carrier that wants to lower its price can file a new tariff effective the following day. Short Notice Effectiveness for Independently Filed Motor Carrier and Freight Forwarder Rates, 1 1. C. C. 2d 146 affirmed as Southern Motor Carriers Rate No longer does the Commission seek to limit the number of motor carriers, which *148 has more than doubled in less than a decade. Most important, a carrier and shipper who want to get out from under tariff regulation altogether have only to negotiate a contract of carriage, and then the lawful price is the price in the contract rather than in any filed tariff. There used to be all sorts of restrictions on contract carriage, which greatly limited it as an escape hatch from regulation. There are no longer. Wheaton Van Lines, The skeleton of regulation remains; the flesh has been stripped away." Orscheln Bros. Truck Lines, The significance of these fundamental changes was also noted and explained by Judge Alarcon: "A variety of practices that previously would have been considered discriminatory are now allowed. For example, the ICC has recently ruled that volume discount rates are not per se unlawful and may be justified by cost savings to the carrier. See Lawfulness of Volume Discount Rates by Motor Common Carrier of Property, 365 I. C. C. 711, 715-16 (1982). Moreover, carriers may impose geographic or product line restrictions that must be met to obtain rate reductions. See Rates for Named Shipper or Receiver, 367 I. C. C. 959, 962-965 "In addition to increased competitive pressures, statutory changes, and a relaxed regulatory climate, the ICC's Negotiated Rates decisions are a practical response to the information costs faced by shippers. The ease of filing tariffs and the sheer number filed no longer makes it appropriate to allocate the burden of discovering a filed rate to the shipper in all cases. Reduced tariff rates may now be filed to become effective on one day's notice." West Coast Truck Lines, *149 The Court catalogs these reforms, ante, at 133-134, but fails to analyze their implications for the "reasonableness" requirement of 10701(a) and, consequently, for the provisions of 10761(a). What the Court now misses has been succinctly set forth by Judge Alarcon: "The ICC's determination that the collection of undercharges constitutes an unreasonable practice if the shipper is unaware of the filed rate is also a reflection of changing legislative goals. Congress modified national transportation policy when it amended 49 U.S. C. 10101(a) in the Motor Carrier Act of 1980. Section 10101(a)(2) now directs the Commission, `in regulating transportation by motor carrier, to promote competitive and efficient transportation services in order to (A) meet the needs of shippers, receivers, passengers, and consumers; [and] (B) allow a variety of quality and price options to meet changing market demands and the diverse requirements of the shipping and traveling public' 49 U.S. C. 10101(a)(1)(A), (B) (1982). In addition, 10101(a)(1)(D) directs the ICC to encourage the establishment of reasonable transportation rates without `unfair or destructive competitive practices.' 49 U.S. C. 10101(a)(1)(D) (1982). Congress intended these sections of the Motor Carrier Act `to emphasize the importance of competition and efficiency as the most desirable means for achieving transportation goals while, at the same time, providing the Commission with sufficient flexibility to promote the public interest.' H. R. Rep. No. 96-1069, 96th Cong., 2d Sess. 12, reprinted in 1980 U. S. Code Cong. & Admin. News 2283, 2294. "Section 10701(a) provides the ICC with the mechanism to put into effect Congress' restated goals of national transportation policy. By declaring the adherence to filed rates unreasonable under the circumstances presented in this case, the ICC has demonstrated its intention to prevent carriers from engaging in unfair *150 competitive practices." Weyerhaeuser, 893 F. 2d, at -1027. Despite the Court's puzzling suggestion that the filed rate doctrine is essential to the "core purposes of the Act," ante, at 133, the doctrine is instead, as the Court elsewhere seems to concede, "an anachronism in the wake of the [Motor Carrier Act of 1980]," ante, at 136. If plain text is a poor basis for the Court's holding, statutory purpose is altogether worse. As Judge Posner has explained: "Counsel for the carrier in this casewhich is to say for the carrier's trustee in bankruptcyconceded at argument that the motor carrier industry is today highly competitive. But if so, the filed-rate doctrine has lost its raison d'etre. The classic explanations for the doctrine are from a different world. `If a mistake in naming a rate between two given points is to be accepted as requiring the application of that rate by the carrier, the great principle of equality in rates, to secure which was the very purpose and object of the enactment of these several statutes, might as well be abandoned.' Poor v. Chicago, Burlington & Quincy 12 I. C. C. at 421. `Stability and equality of rates are more important to commercial interests than reduced rates.' `Occasional hardships may result from any inelastic rule of general application. The principle, however, is vital in our commercial life that there shall be one fixed and absolutely rigid rate governing the transportation at a given time of any given commodity between two given points.' "Cessante ratione legis, cessat et ipsa lex. Firms in a competitive market cannot discriminate against weak shippers, for even the weak shipper has, by definition of competition, alternative sources of supply to which to turn if one of his suppliers tries to make a monopoly profit off him. `In the more competitive, more flexible pricing atmosphere created by [deregulation], there is *151 little likelihood of carriers using a rate misquotation as a means to discriminate in favor of particular shippers.' Petition to Institute Rulemaking on Negotiated Motor Common Carrier Rates, 5 I. C. C. 2d at 625. And since it is no longer the policy of Congress or the ICC to foster monopoly pricing in the motor carrier industry, no public object is served by forcing carriers to adhere to published price schedules regardless of circumstances. All this the Commission found and persuasively articulated in National Industrial Transportation League, 3 I. C. C. 2d at 104-08." Orscheln, 899 F. 2d, at -645. Judge Posner's conclusion that strict mechanical adherence to the filed rate doctrine produces absurd results and serves no social purpose, is one that I share. It is likewise shared by the agency charged with administration of the Act. III A few years ago, in Chevron U. S. A. we reiterated the importance of giving appropriate deference to an agency's reasonable interpretation of its governing statute. Indeed, long before our decision in Chevron, we recognized that even when faced with a "long history of the Commission's construction and application of the Act contrary to its present position," American Trucking Assns., we must defer to the Commission's interpretation of a statute which it is responsible for administering: "[W]e agree that the Commission, faced with new developments or in light of reconsideration of the relevant facts and its mandate, may alter its past interpretation and overturn past administrative rulings and practice. In fact, although we make no judgment as to the policy aspects of the Commission's action, this kind of flexibility *152 and adaptibility to changing needs and patterns of transportation is an essential part of the office of a regulatory agency." Four Courts of Appeals have expressly invoked Chevron in the course of upholding the agency action challenged in this case,[14] but this Court does not deem Chevronor any other case involving deference to agency actionworthy of extended discussion. The Court dismisses Chevron by means of a conclusory assertion that the agency's interpretation is inconsistent with "the statutory scheme as a whole." Ante, at 131. Insofar as the Court offers any justification for that result, it does so by relying on cases in which this Court's action was entirely consistent with the agency's interpretation of the Act.[15] The fact that the Court has strictly enforced the filed rate doctrine in the many cases in which it served the agency's regulatory purposes provides no justification for enforcing the doctrine in a competitive market in which it frustrates the agency's attempt to carry out the plainly expressed intent of Congress. The Court's failure to adhere today to the teaching of Chevron is compounded by its misplaced reliance on Square D See ante, at 134-135. In Square D, we adhered to a longstanding settled construction of 4 of the Clayton Act that had not been affected by any subsequent statutory amendment. No question of agreeing or disagreeing with agency action, or with an agency's interpretation of a congressional policy choice, was presented. That case is therefore totally inapplicable to the question presented here. Even less persuasive authority for the Court's position is see ante, at 131, 135, a case in which we upheld *153 an agency interpretation that conformed to longstanding precedent. IV Finally, I must express my emphatic agreement with the Commission's conclusion, App. to Pet. for Cert. 44a, that an unreasonable practice would result if the carrier in this case were rewarded for violating its duty to file a new rate promptly. There is no evidence of discrimination in this record; nor is there any reason to believe that any shipper or any competing motor carrier was harmed by the negotiated rate or by the failure to file it. The only consequence of today's misguided decision is to produce a bonanza for the bankruptcy bar. "Now that off-tariff pricing is harmless to the (de)regulatory scheme, the only purpose served by making the statutory obligation to price in conformity with published tariffs draconian is to provide windfalls for unsecured creditors in bankruptcy." Orscheln, 899 F. 2d, at 646. As Justice Black said more than 30 years ago in similar circumstances, "I am unable to understand why the Court strains so hard to reach so bad a result." T. I. M. E. The Court's analysis is plausible only if read as a historical excursus about a statute that no longer exists. Nothing more than blind adherence to language in cases that have nothing to do with the present situation supports today's result. I respectfully dissent. |
Justice Kennedy | concurring | false | Federal Election Comm'n v. Beaumont | 2003-06-16T00:00:00 | null | https://www.courtlistener.com/opinion/130151/federal-election-commn-v-beaumont/ | https://www.courtlistener.com/api/rest/v3/clusters/130151/ | 2,003 | 2002-074 | 2 | 7 | 2 | My position, expressed in dissenting opinions in previous cases, has been that the Court erred in sustaining certain state and federal restrictions on political speech in the campaign *164 finance context and misapprehended basic First Amendment principles in doing so. See Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 409 (2000) (KENNEDY, J., dissenting); Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 699 (1990) (KENNEDY, J., dissenting); Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n, 518 U.S. 604, 626 (1996) (KENNEDY, J., concurring in judgment and dissenting in part). I adhere to this view, and so can give no weight to those authorities in the instant case.
That said, it must be acknowledged that Federal Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) (MCFL), contains language supporting the Court's holding here that corporate contributions can be regulated more closely than corporate expenditures. The language upon which the Court relies tends to reconcile the tension between the approach in MCFL and the Court's earlier decision in Federal Election Comm'n v. National Right to Work Comm., 459 U.S. 197 (1982).
Were we presented with a case in which the distinction between contributions and expenditures under the whole scheme of campaign finance regulation were under review, I might join JUSTICE THOMAS' dissenting opinion. The Court does not undertake that comprehensive examination here, however. And since there is language in MCFL that supports today's holding, I concur in the judgment. | My position, expressed in dissenting opinions in previous cases, has been that the Court erred in sustaining certain state and federal restrictions on political speech in the campaign *164 finance context and misapprehended basic First Amendment principles in doing so. See ; ; Colorado Republican Federal Campaign I adhere to this view, and so can give no weight to those authorities in the instant case. That said, it must be acknowledged that Federal Election contains language supporting the Court's holding here that corporate contributions can be regulated more closely than corporate expenditures. The language upon which the Court relies tends to reconcile the tension between the approach in MCFL and the Court's earlier decision in Federal Election Were we presented with a case in which the distinction between contributions and expenditures under the whole scheme of campaign finance regulation were under review, I might join JUSTICE THOMAS' dissenting opinion. The Court does not undertake that comprehensive examination here, however. And since there is language in MCFL that supports today's holding, I concur in the judgment. |
Justice Marshall | concurring | false | Chrysler Corp. v. Brown | 1979-04-18T00:00:00 | null | https://www.courtlistener.com/opinion/110062/chrysler-corp-v-brown/ | https://www.courtlistener.com/api/rest/v3/clusters/110062/ | 1,979 | 1978-079 | 2 | 9 | 0 | I agree that respondents' proposed disclosure of information is not "authorized by law" within the meaning of 18 U.S. C. § 1905, and I therefore join the opinion of the Court. Because the number and complexity of the issues presented by this case will inevitably tend to obscure the dispositive conclusions, I wish to emphasize the essential basis for the decision today.
This case does not require us to determine whether, absent a congressional directive, federal agencies may reveal information obtained during the exercise of their functions. For whatever inherent power an agency has in this regard, § 1905 forbids agencies from divulging certain types of information unless disclosure is independently "authorized by law." Thus, the controlling issue in this case is whether the OFCCP disclosure *320 regulations, 41 CFR §§ 60.40-1 to 60.40-4 (1978), provide the requisite degree of authorization for the agency's proposed release. The Court holds that they do not, because the regulations are not sanctioned directly or indirectly by federal legislation.[1] In imposing the authorization requirement of § 1905, Congress obviously meant to allow only those disclosures contemplated by congressional action. Ante, at 298-312. Otherwise, the agencies Congress intended to control could create their own exceptions to § 1905 simply by promulgating valid disclosure regulations. Finally, the Court holds that since § 10 (e) of the Administrative Procedure Act requires agency action to be "in accordance with law," 5 U.S. C. § 706 (2) (A), a reviewing court can prevent any disclosure that would violate § 1905.[2]
Our conclusion that disclosure pursuant to the OFCCP regulations is not "authorized by law" for purposes of § 1905, however, does not mean the regulations themselves are "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right" for purposes of the Administrative Procedure Act. 5 U.S. C. § 706 (2) (C). As the Court recognizes, ante, at 309 n. 40, that inquiry involves very different considerations than those presented in the instant case. Accordingly, we do not question the general validity of these OFCCP regulations or any other regulations promulgated under § 201 of Executive Order No. 11246, 3 CFR 340 (1964-1965 Comp.). Nor do we consider whether such an Executive Order must be founded on a legislative enactment. The *321 Court's holding is only that the OFCCP regulations in issue here do not "authorize" disclosure within the meaning of § 1905.
Based on this understanding, I join the opinion of the Court.
| I agree that respondents' proposed disclosure of information is not "authorized by law" within the meaning of 18 U.S. C. 1905, and I therefore join the opinion of the Court. Because the number and complexity of the issues presented by this case will inevitably tend to obscure the dispositive conclusions, I wish to emphasize the essential basis for the decision today. This case does not require us to determine whether, absent a congressional directive, federal agencies may reveal information obtained during the exercise of their functions. For whatever inherent power an agency has in this regard, 1905 forbids agencies from divulging certain types of information unless disclosure is independently "authorized by law." Thus, the controlling issue in this case is whether the OFCCP disclosure *320 regulations, 41 CFR 60.40-1 to 60.40-4 (1978), provide the requisite degree of authorization for the agency's proposed release. The Court holds that they do not, because the regulations are not sanctioned directly or indirectly by federal legislation.[1] In imposing the authorization requirement of 1905, Congress obviously meant to allow only those disclosures contemplated by congressional action. Ante, at 298-312. Otherwise, the agencies Congress intended to control could create their own exceptions to 1905 simply by promulgating valid disclosure regulations. Finally, the Court holds that since 10 (e) of the Administrative Procedure Act requires agency action to be "in accordance with law," 5 U.S. C. 706 (2) (A), a reviewing court can prevent any disclosure that would violate 1905.[2] Our conclusion that disclosure pursuant to the OFCCP regulations is not "authorized by law" for purposes of 1905, however, does not mean the regulations themselves are "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right" for purposes of the Administrative Procedure Act. 5 U.S. C. 706 (2) (C). As the Court recognizes, ante, at 309 n. 40, that inquiry involves very different considerations than those presented in the instant case. Accordingly, we do not question the general validity of these OFCCP regulations or any other regulations promulgated under 201 of Executive Order No. 11246, 3 CFR 340 (1964-1965 Comp.). Nor do we consider whether such an Executive Order must be founded on a legislative enactment. The *321 Court's holding is only that the OFCCP regulations in issue here do not "authorize" disclosure within the meaning of 1905. Based on this understanding, I join the opinion of the Court. |
per_curiam | per_curiam | true | Presley v. Georgia | 2010-01-19T00:00:00 | null | https://www.courtlistener.com/opinion/1746/presley-v-georgia/ | https://www.courtlistener.com/api/rest/v3/clusters/1746/ | 2,010 | 2009-017 | 2 | 7 | 2 | After a jury trial in the Superior Court of DeKalb County, Georgia, petitioner Eric Presley was convicted of a cocaine trafficking offense. The conviction was affirmed by the Supreme Court of Georgia. 285 Ga. 270, 674 S.E.2d 909 (2009). Presley seeks certiorari, claiming his Sixth and Fourteenth Amendment right to a public trial was violated when the trial court excluded the public from the voir dire of prospective jurors. The Supreme Court of Georgia's affirmance contravened this Court's clear precedents. Certiorari and petitioner's motion for leave to proceed in forma pauperis are now granted, and the judgment is reversed.
Before selecting a jury in Presley's trial, the trial court noticed a lone courtroom observer. Id., at 270-271, 674 S.E.2d, at 910. The court explained that prospective jurors were about to enter and instructed the man that he was not allowed in the courtroom and had to leave that floor of the courthouse entirely. Id., at 271, 674 S.E.2d, at 910. The court then questioned the man and learned he was Presley's uncle. Ibid. The court reiterated its instruction:
"`Well, you still can't sit out in the audience with the jurors. You know, most of the afternoon actually we're going to be picking a jury. And we may have a couple of pre-trial matters, so you're welcome to come in after we ... complete selecting the jury this afternoon. But, otherwise, you would have to leave the sixth floor, because jurors will be all out in the hallway in a few moments. That applies to everybody who's got a case.'" Ibid.
Presley's counsel objected to "`the exclusion of the public from the courtroom,'" but the court explained, "`[t]here just isn't space for them to sit in the audience.'" Ibid. When Presley's counsel requested "`some accommodation,'" the court explained its ruling further:
"`Well, the uncle can certainly come back in once the trial starts. There's no, really no need for the uncle to be present during jury selection.... [W]e have 42 jurors coming up. Each of those rows will be occupied by jurors. And his uncle cannot sit and intermingle with members of the jury panel. But, when the trial starts, the opening statements and other matters, he can certainly come back into the courtroom.'" Ibid.
After Presley was convicted, he moved for a new trial based on the exclusion of the public from the juror voir dire. At a hearing on the motion, Presley presented evidence showing that 14 prospective jurors could have fit in the jury box and the remaining 28 could have fit entirely on one side of the courtroom, leaving adequate room for the public. App. to Pet. for Cert. E-37, E-41. The trial court denied the motion, commenting that it preferred to seat jurors throughout the entirety of the courtroom, and "it's up to the individual judge to decide ... what's comfortable." Id., E-38. The court continued: "It's totally up to my discretion whether or not I want family members in the courtroom to intermingle with the jurors and sit directly behind the jurors where they might overhear some inadvertent comment or conversation." Id., at E-42 to E-43. On appeal, the Court of Appeals of Georgia agreed, finding "[t]here was no abuse of discretion here, when the trial court explained the need to exclude spectators at the voir dire stage of the proceedings and when members of the public were invited to return *723 afterward." 290 Ga.App. 99, 100-101, 658 S.E.2d 773, 775 (2008).
The Supreme Court of Georgia granted certiorari and affirmed, with two justices dissenting. After finding "the trial court certainly had an overriding interest in ensuring that potential jurors heard no inherently prejudicial remarks from observers during voir dire," the Supreme Court of Georgia rejected Presley's argument that the trial court was required to consider alternatives to closing the courtroom. 285 Ga., at 272, 273, 674 S.E.2d, at 911. It noted that "the United States Supreme Court [has] not provide[d] clear guidance regarding whether a court must, sua sponte, advance its own alternatives to [closure]," and the court ruled that "Presley was obliged to present the court with any alternatives that he wished the court to consider." Id., at 273, 674 S.E.2d, at 911, 912. When no alternatives are offered, it concluded, "there is no abuse of discretion in the court's failure to sua sponte advance its own alternatives." Id., at 274, 674 S.E.2d, at 912.
This Court's rulings with respect to the public trial right rest upon two different provisions of the Bill of Rights, both applicable to the States via the Due Process Clause of the Fourteenth Amendment. The Sixth Amendment directs, in relevant part, that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ...." The Court in In re Oliver, 333 U.S. 257, 273, 68 S. Ct. 499, 92 L. Ed. 682 (1948), made it clear that this right extends to the States. The Sixth Amendment right, as the quoted language makes explicit, is the right of the accused.
The Court has further held that the public trial right extends beyond the accused and can be invoked under the First Amendment. Press-Enterprise Co. v. Superior Court of Cal., Riverside Cty., 464 U.S. 501, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984) (Press-Enterprise I). This requirement, too, is binding on the States. Ibid.
The case now before the Court is brought under the Sixth Amendment, for it is the accused who invoked his right to a public trial. An initial question is whether the right to a public trial in criminal cases extends to the jury selection phase of trial, and in particular the voir dire of prospective jurors. In the First Amendment context that question was answered in Press-Enterprise I. Id., at 510, 104 S. Ct. 819. The Court there held that the voir dire of prospective jurors must be open to the public under the First Amendment. Later in the same Term as Press-Enterprise I, the Court considered a Sixth Amendment case concerning whether the public trial right extends to a pretrial hearing on a motion to suppress certain evidence. Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984). The Waller Court relied heavily upon Press-Enterprise I in finding that the Sixth Amendment right to a public trial extends beyond the actual proof at trial. It ruled that the pretrial suppression hearing must be open to the public because "there can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public." 467 U.S., at 46, 104 S. Ct. 2210.
While Press-Enterprise I was heavily relied upon in Waller, the jury selection issue in the former case was resolved under the First, not the Sixth, Amendment. Press-Enterprise I, supra, at 516, 104 S. Ct. 819 (STEVENS, J., concurring) ("The constitutional protection for the right of access that the Court upholds today is found in the First Amendment, rather than the public trial provision of the Sixth" (footnote omitted)). In the instant case, the question then arises whether it is so well settled that the Sixth Amendment *724 right extends to jury voir dire that this Court may proceed by summary disposition.
The point is well settled under Press-Enterprise I and Waller. The extent to which the First and Sixth Amendment public trial rights are coextensive is an open question, and it is not necessary here to speculate whether or in what circumstances the reach or protections of one might be greater than the other. Still, there is no legitimate reason, at least in the context of juror selection proceedings, to give one who asserts a First Amendment privilege greater rights to insist on public proceedings than the accused has. "Our cases have uniformly recognized the public-trial guarantee as one created for the benefit of the defendant." Gannett Co. v. DePasquale, 443 U.S. 368, 380, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979). There could be no explanation for barring the accused from raising a constitutional right that is unmistakably for his or her benefit. That rationale suffices to resolve the instant matter. The Supreme Court of Georgia was correct in assuming that the Sixth Amendment right to a public trial extends to the voir dire of prospective jurors.
While the accused does have a right to insist that the voir dire of the jurors be public, there are exceptions to this general rule. "[T]he right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information." Waller, 467 U.S., at 45, 104 S. Ct. 2210. "Such circumstances will be rare, however, and the balance of interests must be struck with special care." Ibid. Waller provided standards for courts to apply before excluding the public from any stage of a criminal trial:
"[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure." Id., at 48, 104 S. Ct. 2210.
In upholding exclusion of the public at juror voir dire in the instant case, the Supreme Court of Georgia concluded, despite our explicit statements to the contrary, that trial courts need not consider alternatives to closure absent an opposing party's proffer of some alternatives. While the Supreme Court of Georgia concluded this was an open question under this Court's precedents, the statement in Waller that "the trial court must consider reasonable alternatives to closing the proceeding" settles the point. Ibid. If that statement leaves any room for doubt, the Court was more explicit in Press-Enterprise I:
"Even with findings adequate to support closure, the trial court's orders denying access to voir dire testimony failed to consider whether alternatives were available to protect the interests of the prospective jurors that the trial court's orders sought to guard. Absent consideration of alternatives to closure, the trial court could not constitutionally close the voir dire." 464 U.S., at 511, 104 S. Ct. 819.
The conclusion that trial courts are required to consider alternatives to closure even when they are not offered by the parties is clear not only from this Court's precedents but also from the premise that "[t]he process of juror selection is itself a matter of importance, not simply to the adversaries but to the criminal justice system." Id., at 505, 104 S. Ct. 819. The public has a right to be present whether or not any party has asserted the *725 right. In Press-Enterprise I, for instance, neither the defendant nor the prosecution requested an open courtroom during juror voir dire proceedings; in fact, both specifically argued in favor of keeping the transcript of the proceedings confidential. Id., at 503-504, 104 S. Ct. 819. The Court, nonetheless, found it was error to close the courtroom. Id., at 513, 104 S. Ct. 819.
Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials. Nothing in the record shows that the trial court could not have accommodated the public at Presley's trial. Without knowing the precise circumstances, some possibilities include reserving one or more rows for the public; dividing the jury venire panel to reduce courtroom congestion; or instructing prospective jurors not to engage or interact with audience members.
Petitioner also argues that, apart from failing to consider alternatives to closure, the trial court erred because it did not even identify any overriding interest likely to be prejudiced absent the closure of voir dire. There is some merit to this complaint. The generic risk of jurors over-hearing prejudicial remarks, unsubstantiated by any specific threat or incident, is inherent whenever members of the public are present during the selection of jurors. If broad concerns of this sort were sufficient to override a defendant's constitutional right to a public trial, a court could exclude the public from jury selection almost as a matter of course. As noted in the dissent below, "the majority's reasoning permits the closure of voir dire in every criminal case conducted in this courtroom whenever the trial judge decides, for whatever reason, that he or she would prefer to fill the courtroom with potential jurors rather than spectators." 285 Ga., at 276, 674 S.E.2d, at 913 (opinion of Sears, C.J.).
There are no doubt circumstances where a judge could conclude that threats of improper communications with jurors or safety concerns are concrete enough to warrant closing voir dire. But in those cases, the particular interest, and threat to that interest, must "be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered." Press-Enterprise I, supra, at 510, 104 S. Ct. 819; see also Press-Enterprise Co. v. Superior Court of Cal., County of Riverside, 478 U.S. 1, 15, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) ("The First Amendment right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of [the right to a fair trial]").
We need not rule on this second claim of error, because even assuming, arguendo, that the trial court had an overriding interest in closing voir dire, it was still incumbent upon it to consider all reasonable alternatives to closure. It did not, and that is all this Court needs to decide.
The Supreme Court of Georgia's judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered. | After a jury trial in the Superior Court of DeKalb County, Georgia, petitioner Eric Presley was convicted of a cocaine trafficking offense. The conviction was affirmed by the Supreme Court of Georgia. Presley seeks certiorari, claiming his Sixth and Fourteenth Amendment right to a public trial was violated when the trial court excluded the public from the voir dire of prospective jurors. The Supreme Court of Georgia's affirmance contravened this Court's clear precedents. Certiorari and petitioner's motion for leave to proceed in forma pauperis are now granted, and the judgment is reversed. Before selecting a jury in Presley's trial, the trial court noticed a lone courtroom observer. The court explained that prospective jurors were about to enter and instructed the man that he was not allowed in the courtroom and had to leave that floor of the courthouse entirely. The court then questioned the man and learned he was Presley's uncle. The court reiterated its instruction: "`Well, you still can't sit out in the audience with the jurors. You know, most of the afternoon actually we're going to be picking a jury. And we may have a couple of pre-trial matters, so you're welcome to come in after we complete selecting the jury this afternoon. But, otherwise, you would have to leave the sixth floor, because jurors will be all out in the hallway in a few moments. That applies to everybody who's got a case.'" Presley's counsel objected to "`the exclusion of the public from the courtroom,'" but the court explained, "`[t]here just isn't space for them to sit in the audience.'" When Presley's counsel requested "`some accommodation,'" the court explained its ruling further: "`Well, the uncle can certainly come back in once the trial starts. There's no, really no need for the uncle to be present during jury selection. [W]e have 42 jurors coming up. Each of those rows will be occupied by jurors. And his uncle cannot sit and intermingle with members of the jury panel. But, when the trial starts, the opening statements and other matters, he can certainly come back into the '" After Presley was convicted, he moved for a new trial based on the exclusion of the public from the juror voir dire. At a hearing on the motion, Presley presented evidence showing that 14 prospective jurors could have fit in the jury box and the remaining 28 could have fit entirely on one side of the courtroom, leaving adequate room for the public. App. to Pet. for Cert. E-37, E-41. The trial court denied the motion, commenting that it preferred to seat jurors throughout the entirety of the courtroom, and "it's up to the individual judge to decide what's comfortable." E-38. The court continued: "t's totally up to my discretion whether or not want family members in the courtroom to intermingle with the jurors and sit directly behind the jurors where they might overhear some inadvertent comment or conversation." at E-42 to E-43. On appeal, the Court of Appeals of Georgia agreed, finding "[t]here was no abuse of discretion here, when the trial court explained the need to exclude spectators at the voir dire stage of the proceedings and when members of the public were invited to return *723 afterward." The Supreme Court of Georgia granted certiorari and affirmed, with two justices dissenting. After finding "the trial court certainly had an overriding interest in ensuring that potential jurors heard no inherently prejudicial remarks from observers during voir dire," the Supreme Court of Georgia rejected Presley's argument that the trial court was required to consider alternatives to closing the t noted that "the United States Supreme Court [has] not provide[d] clear guidance regarding whether a court must, sua sponte, advance its own alternatives to [closure]," and the court ruled that "Presley was obliged to present the court with any alternatives that he wished the court to consider." at 912. When no alternatives are offered, it concluded, "there is no abuse of discretion in the court's failure to sua sponte advance its own alternatives." This Court's rulings with respect to the public trial right rest upon two different provisions of the Bill of Rights, both applicable to the States via the Due Process Clause of the Fourteenth Amendment. The Sixth Amendment directs, in relevant part, that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial" The Court in n re Oliver, made it clear that this right extends to the States. The Sixth Amendment right, as the quoted language makes explicit, is the right of the accused. The Court has further held that the public trial right extends beyond the accused and can be invoked under the First Amendment. This requirement, too, is binding on the States. The case now before the Court is brought under the Sixth Amendment, for it is the accused who invoked his right to a public trial. An initial question is whether the right to a public trial in criminal cases extends to the jury selection phase of trial, and in particular the voir dire of prospective jurors. n the First Amendment context that question was answered in The Court there held that the voir dire of prospective jurors must be open to the public under the First Amendment. Later in the same Term as the Court considered a Sixth Amendment case concerning whether the public trial right extends to a pretrial hearing on a motion to suppress certain evidence. The Waller Court relied heavily upon in finding that the Sixth Amendment right to a public trial extends beyond the actual proof at trial. t ruled that the pretrial suppression hearing must be open to the public because "there can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public." While was heavily relied upon in Waller, the jury selection issue in the former case was resolved under the First, not the Sixth, Amendment. (STEVENS, J., concurring) ("The constitutional protection for the right of access that the Court upholds today is found in the First Amendment, rather than the public trial provision of the Sixth" (footnote omitted)). n the instant case, the question then arises whether it is so well settled that the Sixth Amendment *724 right extends to jury voir dire that this Court may proceed by summary disposition. The point is well settled under and Waller. The extent to which the First and Sixth Amendment public trial rights are coextensive is an open question, and it is not necessary here to speculate whether or in what circumstances the reach or protections of one might be greater than the other. Still, there is no legitimate reason, at least in the context of juror selection proceedings, to give one who asserts a First Amendment privilege greater rights to insist on public proceedings than the accused has. "Our cases have uniformly recognized the public-trial guarantee as one created for the benefit of the defendant." Gannett There could be no explanation for barring the accused from raising a constitutional right that is unmistakably for his or her benefit. That rationale suffices to resolve the instant matter. The Supreme Court of Georgia was correct in assuming that the Sixth Amendment right to a public trial extends to the voir dire of prospective jurors. While the accused does have a right to insist that the voir dire of the jurors be public, there are exceptions to this general rule. "[T]he right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information." Waller, "Such circumstances will be rare, however, and the balance of interests must be struck with special care." Waller provided standards for courts to apply before excluding the public from any stage of a criminal trial: "[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure." n upholding exclusion of the public at juror voir dire in the instant case, the Supreme Court of Georgia concluded, despite our explicit statements to the contrary, that trial courts need not consider alternatives to closure absent an opposing party's proffer of some alternatives. While the Supreme Court of Georgia concluded this was an open question under this Court's precedents, the statement in Waller that "the trial court must consider reasonable alternatives to closing the proceeding" settles the point. f that statement leaves any room for doubt, the Court was more explicit in : "Even with findings adequate to support closure, the trial court's orders denying access to voir dire testimony failed to consider whether alternatives were available to protect the interests of the prospective jurors that the trial court's orders sought to guard. Absent consideration of alternatives to closure, the trial court could not constitutionally close the voir dire." The conclusion that trial courts are required to consider alternatives to closure even when they are not offered by the parties is clear not only from this Court's precedents but also from the premise that "[t]he process of juror selection is itself a matter of importance, not simply to the adversaries but to the criminal justice system." The public has a right to be present whether or not any party has asserted the *725 right. n for instance, neither the defendant nor the prosecution requested an open courtroom during juror voir dire proceedings; in fact, both specifically argued in favor of keeping the transcript of the proceedings confidential. The Court, nonetheless, found it was error to close the Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials. Nothing in the record shows that the trial court could not have accommodated the public at Presley's trial. Without knowing the precise circumstances, some possibilities include reserving one or more rows for the public; dividing the jury venire panel to reduce courtroom congestion; or instructing prospective jurors not to engage or interact with audience members. Petitioner also argues that, apart from failing to consider alternatives to closure, the trial court erred because it did not even identify any overriding interest likely to be prejudiced absent the closure of voir dire. There is some merit to this complaint. The generic risk of jurors over-hearing prejudicial remarks, unsubstantiated by any specific threat or incident, is inherent whenever members of the public are present during the selection of jurors. f broad concerns of this sort were sufficient to override a defendant's constitutional right to a public trial, a court could exclude the public from jury selection almost as a matter of course. As noted in the dissent below, "the majority's reasoning permits the closure of voir dire in every criminal case conducted in this courtroom whenever the trial judge decides, for whatever reason, that he or she would prefer to fill the courtroom with potential jurors rather than spectators." There are no doubt circumstances where a judge could conclude that threats of improper communications with jurors or safety concerns are concrete enough to warrant closing voir dire. But in those cases, the particular interest, and threat to that interest, must "be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered." ; see also 106 S. Ct. 5, We need not rule on this second claim of error, because even assuming, arguendo, that the trial court had an overriding interest in closing voir dire, it was still incumbent upon it to consider all reasonable alternatives to closure. t did not, and that is all this Court needs to decide. The Supreme Court of Georgia's judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. t is so ordered. |
Justice Scalia | dissenting | false | Arkansas Writers' Project, Inc. v. Ragland | 1987-04-22T00:00:00 | null | https://www.courtlistener.com/opinion/111866/arkansas-writers-project-inc-v-ragland/ | https://www.courtlistener.com/api/rest/v3/clusters/111866/ | 1,987 | 1986-075 | 1 | 7 | 2 | All government displays an enduring tendency to silence, or to facilitate silencing, those voices that it disapproves. In the case of the Judicial Branch of Government, the principal restraint upon that tendency, as upon other judicial error, is the requirement that judges write opinions providing logical reasons for treating one situation differently from another. I dissent from today's decision because it provides no rational basis for distinguishing the subsidy scheme here under challenge from many others that are common and unquestionably lawful. It thereby introduces into First Amendment law an element of arbitrariness that ultimately erodes rather than fosters the important freedoms at issue.
The Court's opinion does not dispute, and I think it evident, that the tax exemption in this case has a rational basis sufficient to sustain the tax scheme against ordinary equal protection attack, see, e. g., Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312 (1976) (per curiam). Though assuredly not "narrowly tailored," it is reasonably related to the legitimate goals of encouraging small publishers with limited audiences and advertising revenues (a category which in the State's judgment includes most publishers of religious, professional, trade, and sports magazines) and of *236 avoiding the collection of taxes where administrative cost exceeds tax proceeds. See Brief for Appellee 15-16. The exemption is found invalid, however, because it does not pass the "strict scrutiny" test applicable to discriminatory restriction or prohibition of speech, namely, that it be "necessary to serve a compelling state interest and . . . narrowly drawn to achieve that end." Ante, at 231; cf. Police Department of Chicago v. Mosley, 408 U.S. 92, 101 (1972) (discriminatory ban on picketing); Carey v. Brown, 447 U.S. 455, 461-462 (1980) (same).
Here, as in the Court's earlier decision in Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575 (1983), application of the "strict scrutiny" test rests upon the premise that for First Amendment purposes denial of exemption from taxation is equivalent to regulation. That premise is demonstrably erroneous and cannot be consistently applied. Our opinions have long recognized in First Amendment contexts as elsewhere the reality that tax exemptions, credits, and deductions are "a form of subsidy that is administered through the tax system," and the general rule that "a legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny." Regan v. Taxation With Representation of Washington, 461 U.S. 540, 544, 549 (1983) (upholding denial of tax exemption for organization engaged in lobbying even though veterans' organizations received exemption regardless of lobbying activities). See also Cammarano v. United States, 358 U.S. 498, 513 (1959) (deduction for lobbying activities); Buckley v. Valeo, 424 U.S. 1, 93-95 (1976) (declining to apply strict scrutiny to campaign finance law that excludes certain candidates); Harris v. McRae, 448 U.S. 297, 324-326 (1980) (declining to apply strict scrutiny to legislative decision not to subsidize abortions even though other medical procedures were subsidized); Maher v. Roe, 432 U.S. 464 (1977) (same).
*237 The reason that denial of participation in a tax exemption or other subsidy scheme does not necessarily "infringe" a fundamental right is that unlike direct restriction or prohibition such a denial does not, as a general rule, have any significant coercive effect. It may, of course, be manipulated so as to do so, in which case the courts will be available to provide relief. But that is not remotely the case here. It is implausible that the 4% sales tax, generally applicable to all sales in the State with the few enumerated exceptions, was meant to inhibit, or had the effect of inhibiting, this appellant's publication.
Perhaps a more stringent, prophylactic rule is appropriate, and can consistently be applied, when the subsidy pertains to the expression of a particular viewpoint on a matter of political concern a tax exemption, for example, that is expressly available only to publications that take a particular point of view on a controversial issue of foreign policy. Political speech has been accorded special protection elsewhere. See, e. g., FCC v. League of Women Voters of California, 468 U.S. 364, 375-376 (1984) (invalidating ban on editorializing by recipients of grants from the Corporation for Public Broadcasting, in part on ground that political speech "is entitled to the most exacting degree of First Amendment protection"); Connick v. Myers, 461 U.S. 138, 143-146 (1983) (discussing history of First Amendment protection for political speech by public employees); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) (upholding FCC's "fairness doctrine," which imposes special obligations upon broadcasters with regard to "controversial issues of public importance"). There is no need, however, and it is realistically quite impossible, to extend to all speech the same degree of protection against exclusion from a subsidy that one might think appropriate for opposing shades of political expression.
By seeking to do so, the majority casts doubt upon a wide variety of tax preferences and subsidies that draw distinctions based upon subject matter. The United States Postal *238 Service, for example, grants a special bulk rate to written material disseminated by certain nonprofit organizations religious, educational, scientific, philanthropic, agricultural, labor, veterans', and fraternal organizations. See Domestic Mail Manual § 623 (1985). Must this preference be justified by a "compelling governmental need" because a nonprofit organization devoted to some other purpose dissemination of information about boxing, for example does not receive the special rate? The Kennedy Center, which is subsidized by the Federal Government in the amount of up to $23 million per year, see 20 U.S. C. § 76n(a), is authorized by statute to "present classical and contemporary music, opera, drama, dance, and poetry." § 76j. Is this subsidy subject to strict scrutiny because other kinds of expressive activity, such as learned lectures and political speeches, are excluded? Are government research grant programs or the funding activities of the Corporation for Public Broadcasting, see 47 U.S. C. § 396(g)(2), subject to strict scrutiny because they provide money for the study or exposition of some subjects but not others?
Because there is no principled basis to distinguish the subsidization of speech in these areas which we would surely uphold from the subsidization that we strike down here, our decision today places the granting or denial of protection within our own idiosyncratic discretion. In my view, that threatens First Amendment rights infinitely more than the tax exemption at issue. I dissent.
| All government displays an enduring tendency to silence, or to facilitate silencing, those voices that it disapproves. In the case of the Judicial Branch of Government, the principal restraint upon that tendency, as upon other judicial error, is the requirement that judges write opinions providing logical reasons for treating one situation differently from another. I dissent from today's decision because it provides no rational basis for distinguishing the subsidy scheme here under challenge from many others that are common and unquestionably lawful. It thereby introduces into First Amendment law an element of arbitrariness that ultimately erodes rather than fosters the important freedoms at issue. The Court's opinion does not dispute, and I think it evident, that the tax exemption in this case has a rational basis sufficient to sustain the tax scheme against ordinary equal protection attack, see, e. g., Massachusetts Board of Though assuredly not "narrowly tailored," it is reasonably related to the legitimate goals of encouraging small publishers with limited audiences and advertising revenues (a category which in the State's judgment includes most publishers of religious, professional, trade, and sports magazines) and of *236 avoiding the collection of taxes where administrative cost exceeds tax proceeds. See Brief for Appellee 15-16. The exemption is found invalid, however, because it does not pass the "strict scrutiny" test applicable to discriminatory restriction or prohibition of speech, namely, that it be "necessary to serve a compelling state interest and narrowly drawn to achieve that end." Ante, at 231; cf. Police Department of ; Here, as in the Court's earlier decision in Minneapolis Star & Tribune application of the "strict scrutiny" test rests upon the premise that for First Amendment purposes denial of exemption from taxation is equivalent to regulation. That premise is demonstrably erroneous and cannot be consistently applied. Our opinions have long recognized in First Amendment contexts as elsewhere the reality that tax exemptions, credits, and deductions are "a form of subsidy that is administered through the tax system," and the general rule that "a legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny." See also ; ; ; *237 The reason that denial of participation in a tax exemption or other subsidy scheme does not necessarily "infringe" a fundamental right is that unlike direct restriction or prohibition such a denial does not, as a general rule, have any significant coercive effect. It may, of course, be manipulated so as to do so, in which case the courts will be available to provide relief. But that is not remotely the case here. It is implausible that the 4% sales tax, generally applicable to all sales in the State with the few enumerated exceptions, was meant to inhibit, or had the effect of inhibiting, this appellant's publication. Perhaps a more stringent, prophylactic rule is appropriate, and can consistently be applied, when the subsidy pertains to the expression of a particular viewpoint on a matter of political concern a tax exemption, for example, that is expressly available only to publications that take a particular point of view on a controversial issue of foreign policy. Political speech has been accorded special protection elsewhere. See, e. g., ; ; Red Lion Broadcasting There is no need, however, and it is realistically quite impossible, to extend to all speech the same degree of protection against exclusion from a subsidy that one might think appropriate for opposing shades of political expression. By seeking to do so, the majority casts doubt upon a wide variety of tax preferences and subsidies that draw distinctions based upon subject matter. The United States Postal *238 Service, for example, grants a special bulk rate to written material disseminated by certain nonprofit organizations religious, educational, scientific, philanthropic, agricultural, labor, veterans', and fraternal organizations. See Domestic Mail Manual 623 (1985). Must this preference be justified by a "compelling governmental need" because a nonprofit organization devoted to some other purpose dissemination of information about boxing, for example does not receive the special rate? The Kennedy Center, which is subsidized by the Federal Government in the amount of up to $23 million per year, see 20 U.S. C. 76n(a), is authorized by statute to "present classical and contemporary music, opera, drama, dance, and poetry." 76j. Is this subsidy subject to strict scrutiny because other kinds of expressive activity, such as learned lectures and political speeches, are excluded? Are government research grant programs or the funding activities of the Corporation for Public Broadcasting, see 47 U.S. C. 396(g)(2), subject to strict scrutiny because they provide money for the study or exposition of some subjects but not others? Because there is no principled basis to distinguish the subsidization of speech in these areas which we would surely uphold from the subsidization that we strike down here, our decision today places the granting or denial of protection within our own idiosyncratic discretion. In my view, that threatens First Amendment rights infinitely more than the tax exemption at issue. I dissent. |
Justice O'Connor | majority | false | Sullivan v. Hudson | 1989-06-12T00:00:00 | null | https://www.courtlistener.com/opinion/112281/sullivan-v-hudson/ | https://www.courtlistener.com/api/rest/v3/clusters/112281/ | 1,989 | 1988-108 | 2 | 5 | 4 | The issue before us in this case is whether a Social Security claimant is entitled to an award of attorney's fees under the Equal Access to Justice Act for representation provided during administrative proceedings held pursuant to a district court order remanding the action to the Secretary of Health and Human Services.
I
Respondent Elmer Hudson filed an application for the establishment of a period of disability and for disability benefits under the Social Security Act, 49 Stat. 620, as amended, 42 U.S. C. § 401 et seq. (1982 ed. and Supp. V) on September 9, 1981. On the same day, she filed an application for supplemental security income under Title XVI of the Act. Respondent, now 50, submitted medical evidence indicating obesity, limitations in movement, and lower back pain. Her application for benefits was administratively denied, and that position was upheld on reconsideration by the Social Security Administration. Respondent requested and received a hearing before an Administrative Law Judge (ALJ), where *880 she was represented by a Legal Services Corporation para-legal. At the hearing, respondent testified that she suffered from back pain, depression, and nervousness. Respondent was in a state of anxiety and cried throughout the hearing. The ALJ ordered a posthearing psychiatric examination by Dr. Anderson, a psychiatrist, and respondent's representative chose to have her undergo an additional evaluation by Dr. Myers, a clinical psychologist. Dr. Anderson's report indicated that respondent suffered from mild to moderate dysthymic disorder and a histrionic personality disorder. He concluded that respondent's psychological condition would not interfere with her ability to work in the domestic services area, where most of her past work experience lay. Dr. Myers found that respondent was moderately to severely depressed, suffered from insomnia, fatigue, psychomotor retardation, tearfulness, and anxiety. He concluded that her psychological problems, coupled with her mild physical disabilities and back pain, rendered her unemployable absent exhaustive rehabilitative efforts.
Based on these two reports, the ALJ rendered her decision finding that respondent was not disabled because she was capable of performing work similar to that she had done in the past. The ALJ's decision was approved by the Social Security Appeals Council, thus becoming the final decision of the Secretary concerning respondent's applications. Respondent then brought an action in the District Court for the Northern District of Alabama under 42 U.S. C. § 405(g) seeking judicial review of the Secretary's decision denying benefits. The District Court found that the Secretary's decision was supported by substantial evidence and affirmed the denial of benefits. App. to Pet. for Cert. 43a-44a. The Court of Appeals for the Eleventh Circuit reversed. It vacated the Secretary's decision and instructed the District Court to remand the case to the Secretary for reconsideration. Hudson v. Heckler, 755 F.2d 781 (1985). The Court of Appeals agreed with respondent that "the Secretary did *881 not follow her own regulations" in making the disability determination in respondent's case. Id., at 785. The court found that those regulations required the Secretary to consider the cumulative effect of impairments even where no individual ailment considered in isolation would be disabling. Ibid. In respondent's case the ALJ had never considered the combined effect of respondent's physical and psychological afflictions. Nor had the ALJ given any reasons for her rejection of Dr. Myers' evaluation of the combined effects of respondent's physical and psychological conditions. Id., at 785-786.
Following the District Court's remand order, the Social Security Appeals Council vacated its earlier denial of respondent's request for review and returned the case to an ALJ for further proceedings. App. to Pet. for Cert. 30a. The Appeals Council instructed the ALJ to provide respondent with an opportunity to testify at a supplemental hearing and to adduce additional evidence. Id., at 31a. The Appeals Council also indicated that the ALJ might wish to obtain the services of a medical adviser to evaluate respondent's psychiatric impairment during the period at issue. Ibid. Finally, the Appeals Council instructed the ALJ to apply the revised regulations for determining disability due to mental disorders, which had been published by the Secretary in 1985 pursuant to statutory directive. Ibid. On remand, the ALJ found that respondent had been disabled as of May 15, 1981, as she had originally maintained in her initial applications for benefits. Respondent was represented before the ALJ in the remand proceedings by the same counsel who had represented her before the District Court and the Court of Appeals.
On October 22, 1986, the Appeals Council adopted the ALJ's recommended decision and instructed the Social Security Administration to pay respondent disability and supplemental income benefits. Id., at 21a-23a. On December 11, 1986, the District Court, pursuant to the Secretary's motion, *882 dismissed respondent's action for judicial review, finding that after the remand order respondent had obtained all the relief prayed for in her complaint. The District Court retained jurisdiction over the action for the limited purpose of considering any petition for the award of attorney's fees. Respondent then filed the instant petition for an award of attorney's fees under the Equal Access to Justice Act (EAJA), Pub. L. 96-481, 94 Stat. 2328, as amended, 28 U.S. C. § 2412(d) (1982 ed., Supp. V). The District Court denied respondent's fee application in toto, finding that the position taken by the Secretary in the initial denial of benefits to respondent was "substantially justified." App. to Pet. for Cert. 17a-20a. The Court of Appeals again reversed. Hudson v. Secretary of Health and Human Services, 839 F.2d 1453 (CA11 1988). The Court of Appeals noted that in its earlier opinion it had found that the Secretary had violated her own regulations by failing to consider the cumulative effect of respondent's ailments, and that the ALJ had failed to give her reasons for rejection of Dr. Myers' testimony concerning the cumulative effects of respondent's ailments. Id., at 1457-1458. The Secretary's defense of the denial of benefits to respondent "on those two grounds was not substantially justified." Id., at 1458. Having concluded that an award of attorney's fees was proper under the EAJA, the court went on to consider whether the award could include attorney's fees for work done at the administrative level after the cause was remanded to the Secretary by the District Court. The Court of Appeals rejected the Secretary's argument that 5 U.S. C. §§ 504(a)(1) and 504(b)(1)(C) (1982 ed., Supp. V) limited a court's power to award attorney's fees for administrative proceedings to those situations "in which the position of the United States is represented by counsel or otherwise. . . ." While recognizing that the Secretary was not represented by counsel in the remand proceedings at issue here, the Court of Appeals found that "the critical determination is whether the Secretary has staked out a position." 839 F.2d, at 1460. *883 Since the Secretary had taken an adversarial position in the proceedings for judicial review prior to the remand, the Court of Appeals found that the proceedings were no less "adversarial" on remand before the agency, and therefore a fee award encompassing work performed before the agency on remand was proper. Ibid.
Because the Court of Appeals' decision granting attorney's fees for representation in administrative proceedings on remand from judicial review of a Social Security benefits determination conflicts with the decisions of other Courts of Appeals, see, e. g., Cornella v. Schweiker, 728 F.2d 978, 988-989 (CA8 1984), we granted the Secretary's petition for certiorari. Sub nom. Bowen v. Hudson, 488 U.S. 980 (1988).
II
In 1980, Congress passed the EAJA in response to its concern that persons "may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense involved in securing the vindication of their rights." 94 Stat. 2325. As the Senate Report put it:
"For many citizens, the costs of securing vindication of their rights and the inability to recover attorney fees preclude resort to the adjudicatory process. . . . When the cost of contesting a Government order, for example, exceeds the amount at stake, a party has no realistic choice and no effective remedy. In these cases, it is more practical to endure an injustice than to contest it." S. Rep. No. 96-253, p. 5 (1979).
The EAJA was designed to rectify this situation by providing for an award of a reasonable attorney's fee to a "prevailing party" in a "civil action" or "adversary adjudication" unless the position taken by the United States in the proceeding at issue "was substantially justified" or "special circumstances make an award unjust." That portion of the Act applicable *884 to "civil actions" provides, as amended, in relevant part that
"[e]xcept as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . . including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S. C. § 2412(d)(1)(A) (1982 ed., Supp. V).
Application of this provision to respondent's situation here requires brief consideration of the structure of administrative proceedings and judicial review under the Social Security Act. Once a claim has been processed administratively, judicial review of the Secretary's decision is available pursuant to § 205(g) of the Social Security Act, 42 U.S. C. § 405(g), which provides in pertinent part:
"Any individual, after any final decision of the Secretary made after a hearing to which he was a party, . . . may obtain a review of such decision by a civil action . . . . The court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing.. . . The court may, on motion of the Secretary for good cause shown before he files his answer, remand the case to the Secretary for further action by the Secretary, and it may at any time order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding; and the Secretary shall, after the case is remanded, and after hearing such additional *885 evidence if so ordered, modify or affirm his findings of fact or his decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of the additional record and testimony upon which his action in modifying or affirming was based."
As provisions for judicial review of agency action go, § 405(g) is somewhat unusual. The detailed provisions for the transfer of proceedings from the courts to the Secretary and for the filing of the Secretary's subsequent findings with the court suggest a degree of direct interaction between a federal court and an administrative agency alien to traditional review of agency action under the Administrative Procedure Act. As one source puts it:
"The remand power places the courts, not in their accustomed role as external overseers of the administrative process, making sure that it stays within legal bounds, but virtually as coparticipants in the process, exercising ground-level discretion of the same order as that exercised by ALJs and the Appeals Council when they act upon a request to reopen a decision on the basis of new and material evidence." J. Mashaw, C. Goetz, F. Goodman, W. Schwartz, P. Verkuil, & M. Carrow, Social Security Hearings and Appeals 133 (1978).
Where a court finds that the Secretary has committed a legal or factual error in evaluating a particular claim, the district court's remand order will often include detailed instructions concerning the scope of the remand, the evidence to be adduced, and the legal or factual issues to be addressed. See, e. g., Cooper v. Bowen, 815 F.2d 557, 561 (CA9 1987). Often, complex legal issues are involved, including classification of the claimant's alleged disability or his or her prior work experience within the Secretary's guidelines or "grids" used for determining claimant disability. See, e. g., Cole v. Secretary of Health and Human Services, 820 F.2d 768, *886 772-773 (CA6 1987). Deviation from the court's remand order in the subsequent administrative proceedings is itself legal error, subject to reversal on further judicial review. See, e. g., Hooper v. Heckler, 752 F.2d 83, 88 (CA4 1985); Mefford v. Gardner, 383 F.2d 748, 758-759 (CA6 1967). In many remand situations, the court will retain jurisdiction over the action pending the Secretary's decision and its filing with the court. See Ahghazali v. Secretary of Health and Human Services, 867 F.2d 921, 927 (CA6 1989) (remanding action to District Court with instructions to retain jurisdiction during proceedings on remand before the agency); Taylor v. Heckler, 778 F.2d 674, 677, n. 2 (CA11 1985) ("[T]he district court retains jurisdiction of the case until the proceedings on remand have been concluded"); accord, Brown v. Secretary of Health and Human Services, 747 F.2d 878, 883-885 (CA3 1984). The court retains the power in such situations to assure that its prior mandate is effectuated. See Ford Motor Co. v. NLRB, 305 U.S. 364, 373 (1939).
Two points important to the application of the EAJA emerge from the interaction of the mechanisms for judicial review of Social Security benefits determinations and the EAJA. First, in a case such as this one, where a court's remand to the agency for further administrative proceedings does not necessarily dictate the receipt of benefits, the claimant will not normally attain "prevailing party" status within the meaning of § 2412(d)(1)(A) until after the result of the administrative proceedings is known. The situation is for all intents and purposes identical to that we addressed in Hanrahan v. Hampton, 446 U.S. 754 (1980). There we held that the reversal of a directed verdict for defendants on appeal did not render the plaintiffs in that action "prevailing parties" such that an interim award of attorney's fees would be justified under 42 U.S. C. § 1988. We found that such "procedural or evidentiary rulings" were not themselves "matters on which a party could `prevail' for purposes of shifting his counsel fees to the opposing party under § 1988." *887 Id., at 759. More recently in Texas State Teachers Assn. v. Garland Independent School Dist., 489 U.S. 782 (1989), we indicated that in order to be considered a prevailing party, a plaintiff must achieve some of the benefit sought in bringing the action. Id., at 791-793. We think it clear that under these principles a Social Security 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. See Hewitt v. Helms, 482 U.S. 755, 760 (1987). Indeed, the vast majority of the Courts of Appeals have come to this conclusion. See, e. g., Paulson v. Bowen, 836 F.2d 1249, 1252 (CA9 1988); Swedberg v. Bowen, 804 F.2d 432, 434 (CA8 1986); Brown v. Secretary of Health and Human Services, supra, at 880-881.
Second, the EAJA provides that an application for fees must be filed with the court "within thirty days of final judgment in the action." 28 U.S. C. § 2412(d)(1)(B) (1982 ed., Supp. V). As in this case, there will often be no final judgment in a claimant's civil action for judicial review until the administrative proceedings on remand are complete. See Guthrie v. Schweiker, 718 F.2d 104, 106 (CA4 1983) ("[T]he procedure set forth in 42 U.S. C. § 405(g) contemplates additional action both by the Secretary and a district court before a civil action is concluded following a remand"). The Secretary concedes that a remand order from a district court to the agency is not a final determination of the civil action and that the district court "retains jurisdiction to review any determination rendered on remand." Brief for Petitioner 16, 16-17.
Thus, for purposes of the EAJA, the Social Security claimant's status as a prevailing party and the final judgment in her "civil action . . . for review of agency action" are often completely dependent on the successful completion of the remand proceedings before the Secretary. Moreover, the remanding court continues to retain jurisdiction over the action within the meaning of the EAJA and may exercise that jurisdiction *888 to determine if its legal instructions on remand have been followed by the Secretary. Our past decisions interpreting other fee-shifting provisions make clear that where administrative proceedings are intimately tied to the resolution of the judicial action and necessary to the attainment of the results Congress sought to promote by providing for fees, they should be considered part and parcel of the action for which fees may be awarded.
In Pennsylvania v. Delaware Valley Citizens' Council, 478 U.S. 546 (1986), we considered whether the costs of representation before federal and state administrative agencies in defense of the provisions of a consent decree entered under the Clean Air Act were compensable under the fee-shifting provision of that statute. Section 304(d) of the Clean Air Act provides for the award of a reasonable attorney fee in conjunction with "any final order in any action brought pursuant to" certain provisions of the Act. 42 U.S. C. § 7604(d). In Delaware Valley, we rejected the contention that the word "action" in the fee-shifting provision should be read narrowly to exclude all proceedings which could be plausibly characterized as "nonjudicial." We indicated that
"[a]lthough it is true that the proceedings [at issue] were not `judicial' in the sense that they did not occur in a courtroom or involve `traditional' legal work such as examination of witnesses or selection of jurors for trial, the work done by counsel in these two phases was as necessary to the attainment of adequate relief for their client as was all of their earlier work in the courtroom which secured Delaware Valley's initial success in obtaining the consent decree." 478 U.S., at 558.
Similarly, in New York Gas Light Club, Inc. v. Carey, 447 U.S. 54 (1980), we held that under the fee-shifting provision of Title VII of the Civil Rights Act of 1964, 42 U.S. C. § 2000e-5(k), a federal court could award attorney's fees for services performed in state administrative and judicial *889 enforcement proceedings. We noted that the words of the statute, authorizing "the court" to award attorney's fees "[i]n any action or proceeding under this title," could be read to include only federal administrative or judicial proceedings. 447 U.S., at 60-61. Looking to the entire structure of Title VII, we observed that Congress had mandated initial resort to state and local remedies, and that "Congress viewed proceedings before the Equal Employment Opportunity Commission and in federal court as supplements to available state remedies for employment discrimination." Id., at 65. Given this interlocking system of judicial and administrative avenues to relief, we concluded that the exclusion of state and local administrative proceedings from the fee provisions would clearly clash with the congressional design behind the statutory scheme whose enforcement the fee-shifting provisions was designed to promote. Ibid. See also Webb v. Dyer County Board of Education, 471 U.S. 234, 243 (1985) (work performed in administrative proceedings that is "both useful and of a type ordinarily necessary to advance civil rights litigation" may be compensable under 42 U.S. C. § 1988); North Carolina Dept. of Transportation v. Crest Street Community Council, Inc., 479 U.S. 6, 15 (1986).
We think the principles we found persuasive in Delaware Valley and Carey are controlling here. As in Delaware Valley, the administrative proceedings on remand in this case were "crucial to the vindication of [respondent's] rights." Delaware Valley, supra, at 561. No fee award at all would have been available to respondent absent successful conclusion of the remand proceedings, and the services of an attorney may be necessary both to ensure compliance with the District Court's order in the administrative proceedings themselves, and to prepare for any further proceedings before the District Court to verify such compliance. In addition, as we did in Carey, we must endeavor to interpret the fee statute in light of the statutory provisions it was designed to effectuate. Given the "mandatory" nature of the administrative proceedings *890 at issue here, and their close relation in law and fact to the issues before the District Court on judicial review, we find it difficult to ascribe to Congress an intent to throw the Social Security claimant a lifeline that it knew was a foot short. Indeed, the incentive which such a system would create for attorneys to abandon claimants after judicial remand runs directly counter to long established ethical canons of the legal profession. See American Bar Association, Model Rules of Professional Conduct, Rule 1.16, pp. 53-55 (1984). Given the anomalous nature of this result, and its frustration of the very purposes behind the EAJA itself, Congress cannot lightly be assumed to have intended it. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 418-419 (1978). Since the judicial review provisions of the Social Security Act contemplate an ongoing civil action of which the remand proceedings are but a part, and the EAJA allows "any court having jurisdiction of that action" to award fees, 28 U.S. C. § 2412(d)(1)(A), we think the statute, read in light of its purpose "to diminish the deterrent effect of seeking review of, or defending against, governmental action," 94 Stat. 2325, permits a court to award fees for services performed on remand before the Social Security Administration. Where a court finds that the Secretary's position on judicial review was not substantially justified within the meaning of the EAJA, see Pierce v. Underwood, 487 U.S. 552, 563-568 (1988), it is within the court's discretion to conclude that representation on remand was necessary to the effectuation of its mandate and to the ultimate vindication of the claimant's rights, and that an award of fees for work performed in the administrative proceedings is therefore proper. See Delaware Valley, supra, at 561; Webb, supra, at 243.
The Secretary mounts two interrelated challenges to this interpretation of § 2412(d)(1)(A). While the Secretary's contentions are not without some force, neither rises to the level necessary to oust what we think is the most reasonable interpretation of the statute in light of its manifest purpose. *891 First, the Secretary argues that plain meaning of the term "civil action" in § 2412(d)(1)(A) excludes any proceedings outside of a court of law. Brief for Petitioner 12-13; Reply Brief for Petitioner 8-9. Of course, if the plain language of the EAJA evinced a congressional intent to preclude the interpretation we reach here, that would be the end of the matter. In support of this proposition, the Secretary points out that the " `[t]erm [action] in its usual legal sense means a suit brought in a court; a formal complaint within the jurisdiction of a court of law.' " Brief for Petitioner 13, n. 7, quoting Black's Law Dictionary 26 (5th ed. 1979). Second, the Secretary notes that Congress did authorize EAJA fee awards under 5 U.S. C. § 504(a)(1) (1982 ed., Supp. V) where an agency "conducts an adversary adjudication," and that an adversary adjudication is defined in § 504(b)(1)(C) as "an adjudication. . . in which the position of the United States is represented by counsel or otherwise." Under 28 U.S. C. § 2412(d)(3) (1982 ed., Supp. V) a court is empowered to award fees for representation before an agency to a party who prevails in an action for judicial review to "the same extent authorized in [5 U.S. C. § 504(a)]." Thus, the Secretary concludes that since benefits proceedings before the Secretary and his designates are nonadversarial, and a court is explicitly empowered to award fees for agency proceedings where such proceedings satisfy the requirements of § 504(a)(1), the principle of expressio unius est exclusio alterius applies, and a court may never award fees for time spent in nonadversarial administrative proceedings. See Brief for Petitioner 12-18; Reply Brief for Petitioner 7-12.
We agree with the Secretary that for purposes of the EAJA Social Security benefit proceedings are not "adversarial" within the meaning of § 504(b)(1)(C) either initially or on remand from a court. See Richardson v. Perales, 402 U.S. 389, 403 (1971). The plain language of the statute requires that the United States be represented by "counsel or otherwise," and neither is true in this context. Nonetheless, *892 we disagree with the conclusion the Secretary would draw from this fact. First, as Delaware Valley, Webb, and Carey indicate, administrative proceedings may be so intimately connected with judicial proceedings as to be considered part of the "civil action" for purposes of a fee award. This is particularly so in the Social Security context where "a suit [has been] brought in a court," and where "a formal complaint within the jurisdiction of a court of law" remains pending and depends for its resolution upon the outcome of the administrative proceedings. Second, we disagree with the Secretary's submission that a negative implication can be drawn from the power granted a court to award fees based on representation in a prior adversary adjudication before an agency. Section 2412(d)(3) provides that "[i]n awarding fees and other expenses under this subsection to a prevailing party in any action for judicial review of an adversary adjudication," the court may award fees to the same extent that they would have been available before the agency itself under § 504(a)(1). On its face, the provision says nothing about the power of a court to award reasonable fees for representation in a nonadversarial adjudication which is wholly ancillary to a civil action for judicial review. That Congress carved the world of EAJA proceedings into "adversary adjudications" and "civil actions" does not necessarily speak to, let alone preclude, a reading of the term "civil action" which includes administrative proceedings necessary to the completion of a civil action.
We conclude that where a court orders a remand to the Secretary in a benefits litigation and retains continuing jurisdiction over the case pending a decision from the Secretary which will determine the claimant's entitlement 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. We thus affirm the judgment of the *893 Court of Appeals on this issue and remand the case to that court for further proceedings consistent with this opinion.
It is so ordered. | The issue before us in this case is whether a Social Security claimant is entitled to an award of attorney's fees under the Equal Access to Justice Act for representation provided during administrative proceedings held pursuant to a district court order remanding the action to the Secretary of Health and Human I Respondent Elmer Hudson filed an application for the establishment of a period of disability and for disability benefits under the Social Security Act, as amended, 42 U.S. C. 401 et seq. (1982 ed. and Supp. V) on September 9, 1981. On the same day, she filed an application for supplemental security income under Title XVI of the Act. Respondent, now 50, submitted medical evidence indicating obesity, limitations in movement, and lower back pain. Her application for benefits was administratively denied, and that position was upheld on reconsideration by the Social Security Administration. Respondent requested and received a hearing before an Administrative Law Judge (ALJ), where *0 she was represented by a Legal Corporation para-legal. At the hearing, respondent testified that she suffered from back pain, depression, and nervousness. Respondent was in a state of anxiety and cried throughout the hearing. The ALJ ordered a posthearing psychiatric examination by Dr. Anderson, a psychiatrist, and respondent's representative chose to have her undergo an additional evaluation by Dr. Myers, a clinical psychologist. Dr. Anderson's report indicated that respondent suffered from mild to moderate dysthymic disorder and a histrionic personality disorder. He concluded that respondent's psychological condition would not interfere with her ability to work in the domestic services area, where most of her past work experience lay. Dr. Myers found that respondent was moderately to severely depressed, suffered from insomnia, fatigue, psychomotor retardation, tearfulness, and anxiety. He concluded that her psychological problems, coupled with her mild physical disabilities and back pain, rendered her unemployable absent exhaustive rehabilitative efforts. Based on these two reports, the ALJ rendered her decision finding that respondent was not disabled because she was capable of performing work similar to that she had done in the past. The ALJ's decision was approved by the Social Security Appeals Council, thus becoming the final decision of the Secretary concerning respondent's applications. Respondent then brought an action in the District Court for the Northern District of Alabama under 42 U.S. C. 405(g) seeking judicial review of the Secretary's decision denying benefits. The District Court found that the Secretary's decision was supported by substantial evidence and affirmed the denial of benefits. App. to Pet. for Cert. 43a-44a. The Court of Appeals for the Eleventh Circuit reversed. It vacated the Secretary's decision and instructed the District Court to remand the case to the Secretary for reconsideration. The Court of Appeals agreed with respondent that "the Secretary did *1 not follow her own regulations" in making the disability determination in respondent's case. The court found that those regulations required the Secretary to consider the cumulative effect of impairments even where no individual ailment considered in isolation would be disabling. In respondent's case the ALJ had never considered the combined effect of respondent's physical and psychological afflictions. Nor had the ALJ given any reasons for her rejection of Dr. Myers' evaluation of the combined effects of respondent's physical and psychological conditions. -786. Following the District Court's remand order, the Social Security Appeals Council vacated its earlier denial of respondent's request for review and returned the case to an ALJ for further proceedings. App. to Pet. for Cert. 30a. The Appeals Council instructed the ALJ to provide respondent with an opportunity to testify at a supplemental hearing and to adduce additional evidence. at 31a. The Appeals Council also indicated that the ALJ might wish to obtain the services of a medical adviser to evaluate respondent's psychiatric impairment during the period at issue. Finally, the Appeals Council instructed the ALJ to apply the revised regulations for determining disability due to mental disorders, which had been published by the Secretary in pursuant to statutory directive. On remand, the ALJ found that respondent had been disabled as of May 1981, as she had originally maintained in her initial applications for benefits. Respondent was represented before the ALJ in the remand proceedings by the same counsel who had represented her before the District Court and the Court of Appeals. On October 22, the Appeals Council adopted the ALJ's recommended decision and instructed the Social Security Administration to pay respondent disability and supplemental income benefits. at 21a-23a. On December 11, the District Court, pursuant to the Secretary's motion, *2 dismissed respondent's action for judicial review, finding that after the remand order respondent had obtained all the relief prayed for in her complaint. The District Court retained jurisdiction over the action for the limited purpose of considering any petition for the award of attorney's fees. Respondent then filed the instant petition for an award of attorney's fees under the Equal Access to Justice Act (EAJA), Stat. 2328, as amended, 28 U.S. C. 2412(d) (1982 ed., Supp. V). The District Court denied respondent's fee application in toto, finding that the position taken by the Secretary in the initial denial of benefits to respondent was "substantially justified." App. to Pet. for Cert. 17a-20a. The Court of Appeals again reversed. The Court of Appeals noted that in its earlier opinion it had found that the Secretary had violated her own regulations by failing to consider the cumulative effect of respondent's ailments, and that the ALJ had failed to give her reasons for rejection of Dr. Myers' testimony concerning the cumulative effects of respondent's ailments. The Secretary's defense of the denial of benefits to respondent "on those two grounds was not substantially justified." Having concluded that an award of attorney's fees was proper under the EAJA, the court went on to consider whether the award could include attorney's fees for work done at the administrative level after the cause was remanded to the Secretary by the District Court. The Court of Appeals rejected the Secretary's argument that 5 U.S. C. 504(a)(1) and 504(b)(1)(C) (1982 ed., Supp. V) limited a court's power to award attorney's fees for administrative proceedings to those situations "in which the position of the United States is represented by counsel or otherwise." While recognizing that the Secretary was not represented by counsel in the remand proceedings at issue here, the Court of Appeals found that "the critical determination is whether the Secretary has staked out a position." *3 Since the Secretary had taken an adversarial position in the proceedings for judicial review prior to the remand, the Court of Appeals found that the proceedings were no less "adversarial" on remand before the agency, and therefore a fee award encompassing work performed before the agency on remand was proper. Because the Court of Appeals' decision granting attorney's fees for representation in administrative proceedings on remand from judicial review of a Social Security benefits determination conflicts with the decisions of other Courts of Appeals, see, e. g., we granted the Secretary's petition for certiorari. Sub nom. II In 1980, Congress passed the EAJA in response to its concern that persons "may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense involved in securing the vindication of their rights." As the Senate Report put it: "For many citizens, the costs of securing vindication of their rights and the inability to recover attorney fees preclude resort to the adjudicatory process. When the cost of contesting a Government order, for example, exceeds the amount at stake, a party has no realistic choice and no effective remedy. In these cases, it is more practical to endure an injustice than to contest it." S. Rep. No. 96-253, p. 5 (1979). The EAJA was designed to rectify this situation by providing for an award of a reasonable attorney's fee to a "prevailing party" in a "civil action" or "adversary adjudication" unless the position taken by the United States in the proceeding at issue "was substantially justified" or "special circumstances make an award unjust." That portion of the Act applicable *4 to "civil actions" provides, as amended, in relevant part that "[e]xcept as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses incurred by that party in any civil action including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S. C. 2412(d)(1)(A) (1982 ed., Supp. V). Application of this provision to respondent's situation here requires brief consideration of the structure of administrative proceedings and judicial review under the Social Security Act. Once a claim has been processed administratively, judicial review of the Secretary's decision is available pursuant to 205(g) of the Social Security Act, 42 U.S. C. 405(g), which provides in pertinent part: "Any individual, after any final decision of the Secretary made after a hearing to which he was a party, may obtain a review of such decision by a civil action The court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The court may, on motion of the Secretary for good cause shown before he files his answer, remand the case to the Secretary for further action by the Secretary, and it may at any time order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding; and the Secretary shall, after the case is remanded, and after hearing such additional *5 evidence if so ordered, modify or affirm his findings of fact or his decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of the additional record and testimony upon which his action in modifying or affirming was based." As provisions for judicial review of agency action go, 405(g) is somewhat unusual. The detailed provisions for the transfer of proceedings from the courts to the Secretary and for the filing of the Secretary's subsequent findings with the court suggest a degree of direct interaction between a federal court and an administrative agency alien to traditional review of agency action under the Administrative Procedure Act. As one source puts it: "The remand power places the courts, not in their accustomed role as external overseers of the administrative process, making sure that it stays within legal bounds, but virtually as coparticipants in the process, exercising ground-level discretion of the same order as that exercised by ALJs and the Appeals Council when they act upon a request to reopen a decision on the basis of new and material evidence." J. Mashaw, C. Goetz, F. Goodman, W. Schwartz, P. Verkuil, & M. Carrow, Social Security Hearings and Appeals 133 Where a court finds that the Secretary has committed a legal or factual error in evaluating a particular claim, the district court's remand order will often include detailed instructions concerning the scope of the remand, the evidence to be adduced, and the legal or factual issues to be addressed. See, e. g., Often, complex legal issues are involved, including classification of the claimant's alleged disability or his or her prior work experience within the Secretary's guidelines or "grids" used for determining claimant disability. See, e. g., Deviation from the court's remand order in the subsequent administrative proceedings is itself legal error, subject to reversal on further judicial review. See, e. g., ; In many remand situations, the court will retain jurisdiction over the action pending the Secretary's decision and its filing with the court. See ; ; accord, 3-5 The court retains the power in such situations to assure that its prior mandate is effectuated. See Ford Motor Two points important to the application of the EAJA emerge from the interaction of the mechanisms for judicial review of Social Security benefits determinations and the EAJA. First, in a case such as this one, where a court's remand to the agency for further administrative proceedings does not necessarily dictate the receipt of benefits, the claimant will not normally attain "prevailing party" status within the meaning of 2412(d)(1)(A) until after the result of the administrative proceedings is known. The situation is for all intents and purposes identical to that we addressed in There we held that the reversal of a directed verdict for defendants on appeal did not render the plaintiffs in that action "prevailing parties" such that an interim award of attorney's fees would be justified under 42 U.S. C. We found that such "procedural or evidentiary rulings" were not themselves "matters on which a party could `prevail' for purposes of shifting his counsel fees to the opposing party under" *7 More recently in Texas State Teachers we indicated that in order to be considered a prevailing party, a plaintiff must achieve some of the benefit sought in bringing the action. We think it clear that under these principles a Social Security 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. See Indeed, the vast majority of the Courts of Appeals have come to this conclusion. See, e. g., ; ; at 0-1. Second, the EAJA provides that an application for fees must be filed with the court "within thirty days of final judgment in the action." 28 U.S. C. 2412(d)(1)(B) (1982 ed., Supp. V). As in this case, there will often be no final judgment in a claimant's civil action for judicial review until the administrative proceedings on remand are complete. See ("[T]he procedure set forth in 42 U.S. C. 405(g) contemplates additional action both by the Secretary and a district court before a civil action is concluded following a remand"). The Secretary concedes that a remand order from a district court to the agency is not a final determination of the civil action and that the district court "retains jurisdiction to review any determination rendered on remand." Brief for Petitioner 16, 16-17. Thus, for purposes of the EAJA, the Social Security claimant's status as a prevailing party and the final judgment in her "civil action for review of agency action" are often completely dependent on the successful completion of the remand proceedings before the Secretary. Moreover, the remanding court continues to retain jurisdiction over the action within the meaning of the EAJA and may exercise that jurisdiction *8 to determine if its legal instructions on remand have been followed by the Secretary. Our past decisions interpreting other fee-shifting provisions make clear that where administrative proceedings are intimately tied to the resolution of the judicial action and necessary to the attainment of the results Congress sought to promote by providing for fees, they should be considered part and parcel of the action for which fees may be awarded. In we considered whether the costs of representation before federal and state administrative agencies in defense of the provisions of a consent decree entered under the Clean Air Act were compensable under the fee-shifting provision of that statute. Section 304(d) of the Clean Air Act provides for the award of a reasonable attorney fee in conjunction with "any final order in any action brought pursuant to" certain provisions of the Act. 42 U.S. C. 4(d). In Delaware we rejected the contention that the word "action" in the fee-shifting provision should be read narrowly to exclude all proceedings which could be plausibly characterized as "nonjudicial." We indicated that "[a]lthough it is true that the proceedings [at issue] were not `judicial' in the sense that they did not occur in a courtroom or involve `traditional' legal work such as examination of witnesses or selection of jurors for trial, the work done by counsel in these two phases was as necessary to the attainment of adequate relief for their client as was all of their earlier work in the courtroom which secured Delaware 's initial success in obtaining the consent decree." Similarly, in New York Gas Light Club, we held that under the fee-shifting provision of Title VII of the Civil Rights Act of 1964, 42 U.S. C. 2000e-5(k), a federal court could award attorney's fees for services performed in state administrative and judicial *9 enforcement proceedings. We noted that the words of the statute, authorizing "the court" to award attorney's fees "[i]n any action or proceeding under this title," could be read to include only federal administrative or judicial proceedings. -61. Looking to the entire structure of Title VII, we observed that Congress had mandated initial resort to state and local remedies, and that "Congress viewed proceedings before the Equal Employment Opportunity Commission and in federal court as supplements to available state remedies for employment discrimination." Given this interlocking system of judicial and administrative avenues to relief, we concluded that the exclusion of state and local administrative proceedings from the fee provisions would clearly clash with the congressional design behind the statutory scheme whose enforcement the fee-shifting provisions was designed to promote. See also ; North Carolina Dept. of We think the principles we found persuasive in Delaware and Carey are controlling here. As in Delaware the administrative proceedings on remand in this case were "crucial to the vindication of [respondent's] rights." Delaware at No fee award at all would have been available to respondent absent successful conclusion of the remand proceedings, and the services of an attorney may be necessary both to ensure compliance with the District Court's order in the administrative proceedings themselves, and to prepare for any further proceedings before the District Court to verify such compliance. In addition, as we did in Carey, we must endeavor to interpret the fee statute in light of the statutory provisions it was designed to effectuate. Given the "mandatory" nature of the administrative proceedings *890 at issue here, and their close relation in law and fact to the issues before the District Court on judicial review, we find it difficult to ascribe to Congress an intent to throw the Social Security claimant a lifeline that it knew was a foot short. Indeed, the incentive which such a system would create for attorneys to abandon claimants after judicial remand runs directly counter to long established ethical canons of the legal profession. See American Bar Association, Model Rules of Professional Conduct, Rule 1.16, pp. 53-55 Given the anomalous nature of this result, and its frustration of the very purposes behind the EAJA itself, Congress cannot lightly be assumed to have intended it. See Christiansburg Garment U.S. 412, Since the judicial review provisions of the Social Security Act contemplate an ongoing civil action of which the remand proceedings are but a part, and the EAJA allows "any court having jurisdiction of that action" to award fees, 28 U.S. C. 2412(d)(1)(A), we think the statute, read in light of its purpose "to diminish the deterrent effect of seeking review of, or defending against, governmental action," permits a court to award fees for services performed on remand before the Social Security Administration. Where a court finds that the Secretary's position on judicial review was not substantially justified within the meaning of the EAJA, see it is within the court's discretion to conclude that representation on remand was necessary to the effectuation of its mandate and to the ultimate vindication of the claimant's rights, and that an award of fees for work performed in the administrative proceedings is therefore proper. See Delaware at ; at The Secretary mounts two interrelated challenges to this interpretation of 2412(d)(1)(A). While the Secretary's contentions are not without some force, neither rises to the level necessary to oust what we think is the most reasonable interpretation of the statute in light of its manifest purpose. *891 First, the Secretary argues that plain meaning of the term "civil action" in 2412(d)(1)(A) excludes any proceedings outside of a court of law. Brief for Petitioner 12-13; Reply Brief for Petitioner 8-9. Of course, if the plain language of the EAJA evinced a congressional intent to preclude the interpretation we reach here, that would be the end of the matter. In support of this proposition, the Secretary points out that the " `[t]erm [action] in its usual legal sense means a suit brought in a court; a formal complaint within the jurisdiction of a court of law.' " Brief for Petitioner 13, n. 7, quoting Black's Law Dictionary 26 (5th ed. 1979). Second, the Secretary notes that Congress did authorize EAJA fee awards under 5 U.S. C. 504(a)(1) (1982 ed., Supp. V) where an agency "conducts an adversary adjudication," and that an adversary adjudication is defined in 504(b)(1)(C) as "an adjudication. in which the position of the United States is represented by counsel or otherwise." Under 28 U.S. C. 2412(d)(3) (1982 ed., Supp. V) a court is empowered to award fees for representation before an agency to a party who prevails in an action for judicial review to "the same extent authorized in [5 U.S. C. 504(a)]." Thus, the Secretary concludes that since benefits proceedings before the Secretary and his designates are nonadversarial, and a court is explicitly empowered to award fees for agency proceedings where such proceedings satisfy the requirements of 504(a)(1), the principle of expressio unius est exclusio alterius applies, and a court may never award fees for time spent in nonadversarial administrative proceedings. See Brief for Petitioner 12-18; Reply Brief for Petitioner 7-12. We agree with the Secretary that for purposes of the EAJA Social Security benefit proceedings are not "adversarial" within the meaning of 504(b)(1)(C) either initially or on remand from a court. See The plain language of the statute requires that the United States be represented by "counsel or otherwise," and neither is true in this context. Nonetheless, *892 we disagree with the conclusion the Secretary would draw from this fact. First, as Delaware and Carey indicate, administrative proceedings may be so intimately connected with judicial proceedings as to be considered part of the "civil action" for purposes of a fee award. This is particularly so in the Social Security context where "a suit [has been] brought in a court," and where "a formal complaint within the jurisdiction of a court of law" remains pending and depends for its resolution upon the outcome of the administrative proceedings. Second, we disagree with the Secretary's submission that a negative implication can be drawn from the power granted a court to award fees based on representation in a prior adversary adjudication before an agency. Section 2412(d)(3) provides that "[i]n awarding fees and other expenses under this subsection to a prevailing party in any action for judicial review of an adversary adjudication," the court may award fees to the same extent that they would have been available before the agency itself under 504(a)(1). On its face, the provision says nothing about the power of a court to award reasonable fees for representation in a nonadversarial adjudication which is wholly ancillary to a civil action for judicial review. That Congress carved the world of EAJA proceedings into "adversary adjudications" and "civil actions" does not necessarily speak to, let alone preclude, a reading of the term "civil action" which includes administrative proceedings necessary to the completion of a civil action. We conclude that where a court orders a remand to the Secretary in a benefits litigation and retains continuing jurisdiction over the case pending a decision from the Secretary which will determine the claimant's entitlement 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. We thus affirm the judgment of the *893 Court of Appeals on this issue and remand the case to that court for further proceedings consistent with this opinion. It is so ordered. |
Justice Brennan | majority | false | Davis v. Passman | 1979-06-05T00:00:00 | null | https://www.courtlistener.com/opinion/110097/davis-v-passman/ | https://www.courtlistener.com/api/rest/v3/clusters/110097/ | 1,979 | 1978-112 | 2 | 5 | 4 | Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), held that a "cause of action for damages" arises under *230 the Constitution when Fourth Amendment rights are violated. The issue presented for decision in this case is whether a cause of action and a damages remedy can also be implied directly under the Constitution when the Due Process Clause of the Fifth Amendment is violated. The Court of Appeals for the Fifth Circuit, en banc, concluded that "no civil action for damages" can be thus implied. 571 F.2d 793, 801 (1978). We granted certiorari, 439 U.S. 925 (1978), and we now reverse.
I
At the time this case commenced, respondent Otto E. Passman was a United States Congressman from the Fifth Congressional District of Louisiana.[1] On February 1, 1974, Passman hired petitioner Shirley Davis as a deputy administrative assistant.[2] Passman subsequently terminated her employment, effective July 31, 1974, writing Davis that, although she was "able, energetic and a very hard worker," he had concluded "that it was essential that the understudy to my Administrative Assistant be a man."[3] App. 6.
*231 Davis brought suit in the United States District Court for the Western District of Louisiana, alleging that Passman's conduct discriminated against her "on the basis of sex in violation of the United States Constitution and the Fifth Amendment thereto." Id., at 4. Davis sought damages in the form of backpay. Id., at 5.[4] Jurisdiction for her suit was founded on 28 U.S. C. § 1331 (a), which provides in pertinent part that federal "district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000 . . . and arises under the Constitution . . . of the United States . . . ."
*232 Passman moved to dismiss Davis' action for failure to state a claim upon which relief can be granted, Fed. Rule Civ. Proc. 12 (b) (6), arguing, inter alia, that "the law affords no private right of action" for her claim.[5] App. 8. The District Court accepted this argument, ruling that Davis had "no private right of action." Id., at 9.[6] A panel of the Court of Appeals for the Fifth Circuit reversed. 544 F.2d 865 (1977). The panel concluded that a cause of action for damages arose directly under the Fifth Amendment; that, taking as true the allegations in Davis' complaint, Passman's conduct violated the Fifth Amendment; and that Passman's conduct was not shielded by the Speech or Debate Clause of the Constitution, Art. I, § 6, cl. 1.[7]
The Court of Appeals for the Fifth Circuit, sitting en banc, reversed the decision of the panel. The en banc court did not reach the merits, nor did it discuss the application of the Speech or Debate Clause. The court instead held that "no right of action may be implied from the Due Process Clause of the fifth amendment." 571 F.2d, at 801. The court reached this conclusion on the basis of the criteria that had been set out in Cort v. Ash, 422 U.S. 66 (1975), for determining whether a private cause of action should be implied from a federal statute.[8] Noting that Congress had failed to create a *233 damages remedy for those in Davis' position, the court also concluded that "the proposed damage remedy is not constitutionally compelled" so that it was not necessary to "countermand the clearly discernible will of Congress" and create such a remedy. 571 F.2d, at 800.
II
In Bivens v. Six Unknown Fed. Narcotics Agents, federal agents had allegedly arrested and searched Bivens without *234 probable cause, thereby subjecting him to great humiliation, embarrassment, and mental suffering. Bivens held that the Fourth Amendment guarantee against "unreasonable searches and seizures" was a constitutional right which Bivens could enforce through a private cause of action, and that a damages remedy was an appropriate form of redress. Last Term, Butz v. Economou, 438 U.S. 478 (1978), reaffirmed this holding, stating that "the decision in Bivens established that a citizen suffering a compensable injury to a constitutionally protected interest could invoke the general federal-question jurisdiction of the district courts to obtain an award of monetary damages against the responsible federal official." Id., at 504.
Today we hold that Bivens and Butz require reversal of the holding of the en banc Court of Appeals. Our inquiry proceeds in three stages. We hold first that, pretermitting the question whether respondent's conduct is shielded by the Speech or Debate Clause, petitioner asserts a constitutionally protected right; second, that petitioner has stated a cause of action which asserts this right; and third, that relief in damages constitutes an appropriate form of remedy.
A
The Fifth Amendment provides that "[n]o person shall be . . . deprived of life, liberty, or property, without due process of law . . . ." In numerous decisions, this Court "has held that the Due Process Clause of the Fifth Amendment forbids the Federal Government to deny equal protection of the laws. E. g., Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976); Buckley v. Valeo, 424 U.S. 1, 93 (1976); Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2 (1975); Bolling v. Sharpe, 347 U.S. 497, 500 (1954)." Vance v. Bradley, 440 U.S. 93, 95 n. 1 (1979). "To withstand scrutiny under the equal protection component of the Fifth Amendment's Due Process Clause, `classifications by gender must serve important governmental objectives and must be *235 substantially related to achievement of those objectives.' Craig v. Boren, 429 U.S. 190, 197 (1976)."[9]Califano v. Webster, 430 U.S. 313, 316-317 (1977). The equal protection component of the Due Process Clause thus confers on petitioner a federal constitutional right[10] to be free from gender discrimination which cannot meet these requirements.[11]*236 We inquire next whether petitioner has a cause of action to assert this right.
B
It is clear that the District Court had jurisdiction under 28 U.S. C. § 1331 (a) to consider petitioner's claim. Bell v. Hood, 327 U.S. 678 (1946). It is equally clear, and the en banc Court of Appeals so held, that the Fifth Amendment confers on petitioner a constitutional right to be free from illegal discrimination.[12] Yet the Court of Appeals concluded *237 that petitioner could not enforce this right because she lacked a cause of action. The meaning of this missing "cause of action," however, is far from apparent.
Almost half a century ago, Mr. Justice Cardozo recognized that a "`cause of action' may mean one thing for one purpose and something different for another." United States v. Memphis Cotton Oil Co., 288 U.S. 62, 67-68 (1933).[13] The phrase apparently became a legal term of art when the New York Code of Procedure of 1848 abolished the distinction between actions at law and suits in equity and simply required a plaintiff to include in his complaint "[a] statement of the facts constituting the cause of action . . . ."[14] 1848 N. Y. Laws, ch. 379, § 120 (2). By the first third of the 20th century, however, the phrase had become so encrusted with doctrinal complexity that the authors of the Federal Rules of Civil Procedure eschewed it altogether, requiring only that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8 (a). See Original Ballet Russe, Ltd. v. Ballet Theatre, Inc., 133 F.2d 187, 189 (CA2 1943). Nevertheless, courts and commentators have continued to use the phrase "cause of action" in the traditional sense established by the Codes to refer roughly to the alleged invasion of "recognized legal rights" upon which a litigant bases his claim for relief.[15]*238 Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 693 (1949).
This is not the meaning of the "cause of action" which the Court of Appeals below refused to imply from the Fifth Amendment, however, for the court acknowledged that petitioner had alleged an invasion of her constitutional right to be free from illegal discrimination.[16] Instead the Court of Appeals appropriated the meaning of the phrase "cause of action" used in the many cases in which this Court has parsed congressional enactments to determine whether the rights and obligations so created could be judicially enforced by a particular "class of litigants." Cannon v. University of Chicago, 441 U.S. 677, 688 (1979). Securities Investor Protection Corp. v. Barbour, 421 U.S. 412 (1975), for example, held that although "Congress' primary purpose in . . . creating the SIPC was . . . the protection of investors," and although investors were thus "the intended beneficiaries of the [Securities Investor Protection] Act [of 1970]," 84 Stat. 1636, *239 15 U.S. C. § 78aaa et seq., investors nevertheless had no private cause of action judicially to compel SIPC "to commit its funds or otherwise to act for the protection" of investors. 421 U.S., at 418, 421. We held that under the Act only the Securities and Exchange Commission had a cause of action enabling it to invoke judicial authority to require SIPC to perform its statutory obligations. On the other hand, Texas & N. O. R. Co. v. Railway & Steamship Clerks, 281 U.S. 548 (1930), held that § 2 of the Railway Labor Act of 1926, 44 Stat. 577, 45 U.S. C. § 152, which provides that railroad employees be able to designate representatives "without interference, influence, or coercion," did not confer "merely an abstract right," but was judicially enforceable through a private cause of action.[17] 281 U. S., at 558, 567-568.
In cases such as these, the question is which class of litigants may enforce in court legislatively created rights or obligations. If a litigant is an appropriate party to invoke the power of the courts, it is said that he has a "cause of action" under the statute, and that this cause of action is a necessary element of his "claim." So understood, the question whether a litigant has a "cause of action" is analytically distinct and prior to the question of what relief, if any, a litigant may be entitled to receive. The concept of a "cause of action" is employed specifically to determine who may judicially enforce the statutory rights or obligations.[18]
*240 It is in this sense that the Court of Appeals concluded that petitioner lacked a cause of action. The Court of Appeals reached this conclusion through the application of the criteria set out in Cort v. Ash, 422 U.S. 66 (1975), for ascertaining whether a private cause of action may be implied from "a *241 statute not expressly providing one." Id., at 78.[19] The Court of Appeals used these criteria to determine that those in petitioner's position should not be able to enforce the Fifth Amendment's Due Process Clause, and that petitioner therefore had no cause of action under the Amendment. This was error, for the question of who may enforce a statutory right is fundamentally different from the question of who may enforce a right that is protected by the Constitution.
Statutory rights and obligations are established by Congress, and it is entirely appropriate for Congress, in creating these rights and obligations, to determine in addition who may enforce them and in what manner. For example, statutory rights and obligations are often embedded in complex regulatory schemes, so that if they are not enforced through private causes of action, they may nevertheless be enforced through alternative mechanisms, such as criminal prosecutions, see Cort v. Ash, supra, or other public causes of actions. See Securities Investor Protection Corp. v. Barbour, supra; National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 457 (1974). In each case, however, the question is the nature of the legislative intent informing a specific statute, and Cort set out the criteria through which this intent could be discerned.
The Constitution, on the other hand, does not "partake of the prolixity of a legal code." McCulloch v. Maryland, 4 Wheat. 316, 407 (1819). It speaks instead with a majestic simplicity. One of "its important objects," ibid., is the designation of rights. And in "its great outlines," ibid., the judiciary is clearly discernible as the primary means through which these rights may be enforced. As James Madison stated when he presented the Bill of Rights to the Congress:
"If [these rights] are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they *242 will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights." 1 Annals of Cong. 439 (1789).
At least in the absence of "a textually demonstrable constitutional commitment of [an] issue to a coordinate political department," Baker v. Carr, 369 U.S. 186, 217 (1962), we presume that justiciable constitutional rights are to be enforced through the courts. And, unless such rights are to become merely precatory, the class of those litigants who allege that their own constitutional rights have been violated, and who at the same time have no effective means other than the judiciary to enforce these rights, must be able to invoke the existing jurisdiction of the courts for the protection of their justiciable constitutional rights. "The very essence of civil liberty," wrote Mr. Chief Justice Marshall in Marbury v. Madison, 1 Cranch 137, 163 (1803), "certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection." Traditionally, therefore, "it is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution and to restrain individual state officers from doing what the 14th Amendment forbids the State to do." Bell v. Hood, 327 U. S., at 684. See Bivens, 403 U. S., at 400 (Harlan, J., concurring in judgment). Indeed, this Court has already settled that a cause of action may be implied directly under the equal protection component of the Due Process Clause of the Fifth Amendment in favor of those who seek to enforce this constitutional right.[20] The plaintiffs in Bolling v. Sharpe, 347 U.S. 497 *243 (1954), for example, claimed that they had been refused admission into certain public schools in the District of Columbia solely on account of their race. They rested their suit directly on the Fifth Amendment and on the general federal-question jurisdiction of the district courts, 28 U.S. C. § 1331. The District Court dismissed their complaint for failure "to state a claim upon which relief can be granted." Fed. Rule Civ. Proc. 12 (b) (6). This Court reversed. Plaintiffs were clearly the appropriate parties to bring such a suit, and this Court held that equitable relief should be made available. 349 U.S. 294 (1955).
Like the plaintiffs in Bolling v. Sharpe, supra, petitioner rests her claim directly on the Due Process Clause of the Fifth Amendment. She claims that her rights under the Amendment have been violated, and that she has no effective means other than the judiciary to vindicate these rights.[21]*244 We conclude, therefore, that she is an appropriate party to invoke the general federal-question jurisdiction of the District Court to seek relief. She has a cause of action under the Fifth Amendment.[22]
Although petitioner has a cause of action, her complaint might nevertheless be dismissed under Rule 12 (b) (6) unless it can be determined that judicial relief is available. We therefore proceed to consider whether a damages remedy is an appropriate form of relief.
*245 C
We approach this inquiry on the basis of established law. "[I]t is . . . well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done." Bell v. Hood, 327 U. S., at 684. Bivens, 403 U. S., at 396, holds that in appropriate circumstances a federal district court may provide relief in damages for the violation of constitutional rights if there are "no special factors counselling hesitation in the absence of affirmative action by Congress." See Butz v. Economou, 438 U. S., at 504.
First, a damages remedy is surely appropriate in this case. "Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty." Bivens, supra, at 395. Relief in damages would be judicially manageable, for the case presents a focused remedial issue without difficult questions of valuation or causation. See 403 U.S., at 409 (Harlan, J., concurring in judgment). Litigation under Title VII of the Civil Rights Act of 1964 has given federal courts great experience evaluating claims for backpay due to illegal sex discrimination. See 42 U.S. C. § 2000e-5 (g). Moreover, since respondent is no longer a Congressman, see n. 1, supra, equitable relief in the form of reinstatement would be unavailing. And there are available no other alternative forms of judicial relief. For Davis, as for Bivens, "it is damages or nothing."[23]Bivens, supra, at 410 (Harlan, J., concurring in judgment).
*246 Second, although a suit against a Congressman for putatively unconstitutional actions taken in the course of his official conduct does raise special concerns counseling hesitation, we hold that these concerns are coextensive with the protections afforded by the Speech or Debate Clause.[24] See n. 11, supra. If respondent's actions are not shielded by the Clause, we apply the principle that "legislators ought . . . generally to be bound by [the law] as are ordinary persons." Gravel v. United States, 408 U.S. 606, 615 (1972). Cf. Doe v. McMillan, 412 U.S. 306, 320 (1973). As Butz v. Economou stated only last Term:
"Our system of jurisprudence rests on the assumption that all individuals, whatever their position in government, are subject to federal law:
"`No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.' United States v. Lee, 106 U. S. [196,] 220 [(1882)]." 438 U.S., at 506.[25]
Third, there is in this case "no explicit congressional declaration *247 that persons" in petitioner's position injured by unconstitutional federal employment discrimination "may not recover money damages from" those responsible for the injury. Bivens, supra, at 397. (Emphasis supplied.) The Court of Appeals apparently interpreted § 717 of Title VII of the Civil Rights Act of 1964, 86 Stat. 111, 42 U.S. C. § 2000e-16, as an explicit congressional prohibition against judicial remedies for those in petitioner's position. When § 717 was added to Title VII to protect federal employees from discrimination, it failed to extend this protection to congressional employees such as petitioner who are not in the competitive service.[26] See 42 U.S. C. § 2000e-16 (a). There is no evidence, however, that Congress meant § 717 to foreclose alternative remedies available to those not covered by the statute. Such silence is far from "the clearly discernible will of Congress" perceived by the Court of Appeals. 571 F.2d, at 800. Indeed, the Court of Appeals' conclusion that § 717 permits judicial relief to be made available only to those who are protected by the statute is patently inconsistent with Hampton v. Mow Sun Wong, 426 U.S. 88 (1976), which held that equitable relief was available in a challenge to the constitutionality of Civil Service Commission regulations excluding aliens from federal employment. That § 717 does not prohibit discrimination on the basis of alienage[27] did not prevent Hampton from authorizing relief. In a similar manner, we do not now interpret § 717 to foreclose the judicial remedies of those expressly unprotected by the statute. On the contrary, § 717 leaves undisturbed whatever remedies petitioner might otherwise possess.
*248 Finally, the Court of Appeals appeared concerned that, if a damages remedy were made available to petitioner, the danger existed "of deluging federal courts with claims . . . ." 571 F.2d, at 800. We do not perceive the potential for such a deluge. By virtue of 42 U.S. C. § 1983, a damages remedy is already available to redress injuries such as petitioner's when they occur under color of state law. Moreover, a plaintiff seeking a damages remedy under the Constitution must first demonstrate that his constitutional rights have been violated. We do not hold that every tort by a federal official may be redressed in damages. See Wheeldin v. Wheeler, 373 U.S. 647 (1963). And, of course, were Congress to create equally effective alternative remedies, the need for damages relief might be obviated. See Bivens, 403 U. S., at 397. But perhaps the most fundamental answer to the concerns expressed by the Court of Appeals is that provided by Mr. Justice Harlan concurring in Bivens:
"Judicial resources, I am well aware, are increasingly scarce these days. Nonetheless, when we automatically close the courthouse door solely on this basis, we implicitly express a value judgment on the comparative importance of classes of legally protected interests. And current limitations upon the effective functioning of the courts arising from budgetary inadequacies should not be permitted to stand in the way of the recognition of otherwise sound constitutional principles." Id., at 411.
We conclude, therefore, that in this case, as in Bivens, if petitioner is able to prevail on the merits, she should be able to redress her injury in damages, a "remedial mechanism normally available in the federal courts." Id., at 397.
III
We hold today that the Court of Appeals for the Fifth Circuit, en banc, must be reversed because petitioner has a *249 cause of action under the Fifth Amendment, and because her injury may be redressed by a damages remedy. The Court of Appeals did not consider, however, whether respondent's conduct was shielded by the Speech or Debate Clause of the Constitution. Accordingly, we do not reach this question. And, of course, we express no opinion as to the merits of petitioner's complaint.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE POWELL and MR. | , held that a "cause of action for damages" arises under *230 the Constitution when Fourth Amendment rights are violated. The issue presented for decision in this case is whether a cause of action and a damages remedy can also be implied directly under the Constitution when the Due Process Clause of the Fifth Amendment is violated. The Court of Appeals for the Fifth Circuit, en banc, concluded that "no civil action for damages" can be thus implied. We granted certiorari, and we now reverse. I At the time this case commenced, respondent Otto E. Passman was a United States Congressman from the Fifth Congressional District of Louisiana.[] On February 4, Passman hired petitioner Shirley Davis as a deputy administrative assistant.[2] Passman subsequently terminated her employment, effective July 3, 4, writing Davis that, although she was "able, energetic and a very hard worker," he had concluded "that it was essential that the understudy to my Administrative Assistant be a man."[3] App. 6. *23 Davis brought suit in the United States District Court for the Western District of Louisiana, alleging that Passman's conduct discriminated against her "on the basis of sex in violation of the United States Constitution and the Fifth Amendment thereto." Davis sought damages in the form of backpay.[4] Jurisdiction for her suit was founded on 28 U.S. C. 33 (a), which provides in pertinent part that federal "district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $0,000 and arises under the Constitution of the United States" *232 Passman moved to dismiss Davis' action for failure to state a claim upon which relief can be granted, Fed. Rule Civ. Proc. 2 (b) (6), arguing, inter alia, that "the law affords no private right of action" for her claim.[5] App. 8. The District Court accepted this argument, ruling that Davis had "no private right of action."[6] A panel of the Court of Appeals for the Fifth Circuit reversed. The panel concluded that a cause of action for damages arose directly under the Fifth Amendment; that, taking as true the allegations in Davis' complaint, Passman's conduct violated the Fifth Amendment; and that Passman's conduct was not shielded by the Speech or Debate Clause of the Constitution, Art. I, 6, cl.[7] The Court of Appeals for the Fifth Circuit, sitting en banc, reversed the decision of the panel. The en banc court did not reach the merits, nor did it discuss the application of the Speech or Debate Clause. The court instead held that "no right of action may be implied from the Due Process Clause of the fifth amendment." 57 F.2d, at The court reached this conclusion on the basis of the criteria that had been set out in for determining whether a private cause of action should be implied from a federal statute.[8] Noting that Congress had failed to create a *233 damages remedy for those in Davis' position, the court also concluded that "the proposed damage remedy is not constitutionally compelled" so that it was not necessary to "countermand the clearly discernible will of Congress" and create such a II In federal agents had allegedly arrested and searched without *234 probable cause, thereby subjecting him to great humiliation, embarrassment, and mental suffering. held that the Fourth Amendment guarantee against "unreasonable searches and seizures" was a constitutional right which could enforce through a private cause of action, and that a damages remedy was an appropriate form of redress. Last Term, reaffirmed this holding, stating that "the decision in established that a citizen suffering a compensable injury to a constitutionally protected interest could invoke the general federal-question jurisdiction of the district courts to obtain an award of monetary damages against the responsible federal official." 04. Today we hold that and Butz require reversal of the holding of the en banc Court of Our inquiry proceeds in three stages. We hold first that, pretermitting the question whether respondent's conduct is shielded by the Speech or Debate Clause, petitioner asserts a constitutionally protected right; second, that petitioner has stated a cause of action which asserts this right; and third, that relief in damages constitutes an appropriate form of A The Fifth Amendment provides that "[n]o person shall be deprived of life, liberty, or property, without due process of law" In numerous decisions, this Court "has held that the Due Process Clause of the Fifth Amendment forbids the Federal Government to deny equal protection of the laws. E. g., ; ; ;" 440 U.S. "To withstand scrutiny under the equal protection component of the Fifth Amendment's Due Process Clause, `classifications by gender must serve important governmental objectives and must be *235 substantially related to achievement of those objectives.'"[9]Califano v. Webster, The equal protection component of the Due Process Clause thus confers on petitioner a federal constitutional right[0] to be free from gender discrimination which cannot meet these requirements.[]*236 We inquire next whether petitioner has a cause of action to assert this right. B It is clear that the District Court had jurisdiction under 28 U.S. C. 33 (a) to consider petitioner's claim. It is equally clear, and the en banc Court of Appeals so held, that the Fifth Amendment confers on petitioner a constitutional right to be free from illegal discrimination.[2] Yet the Court of Appeals concluded *237 that petitioner could not enforce this right because she lacked a cause of action. The meaning of this missing "cause of action," however, is far from apparent. Almost half a century ago, Mr. Justice Cardozo recognized that a "`cause of action' may mean one thing for one purpose and something different for another." United (3).[3] The phrase apparently became a legal term of art when the New York Code of Procedure of 848 abolished the distinction between actions at law and suits in equity and simply required a plaintiff to include in his complaint "[a] statement of the facts constituting the cause of action"[4] 848 N. Y. Laws, ch. 379, 20 (2). By the first third of the 20th century, however, the phrase had become so encrusted with doctrinal complexity that the authors of the Federal Rules of Civil Procedure eschewed it altogether, requiring only that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8 (a). See Original Ballet Russe, Nevertheless, courts and commentators have continued to use the phrase "cause of action" in the traditional sense established by the Codes to refer roughly to the alleged invasion of "recognized legal rights" upon which a litigant bases his claim for relief.[5]*238 6 This is not the meaning of the "cause of action" which the Court of Appeals below refused to imply from the Fifth Amendment, however, for the court acknowledged that petitioner had alleged an invasion of her constitutional right to be free from illegal discrimination.[6] Instead the Court of Appeals appropriated the meaning of the phrase "cause of action" used in the many cases in which this Court has parsed congressional enactments to determine whether the rights and obligations so created could be judicially enforced by a particular "class of litigants." Securities Investor Protection for example, held that although "Congress' primary purpose in creating the SIPC was the protection of investors," and although investors were thus "the intended beneficiaries of the [Securities Investor Protection] Act [of 0]," *239 5 U.S. C. 78aaa et seq., investors nevertheless had no private cause of action judicially to compel SIPC "to commit its funds or otherwise to act for the protection" of 42 U.S., 8, 42. We held that under the Act only the Securities and Exchange Commission had a cause of action enabling it to invoke judicial authority to require SIPC to perform its statutory obligations. On the other hand, Texas & N. O. R. (0), held that 2 of the Railway Labor Act of 926, 45 U.S. C. 52, which provides that railroad employees be able to designate representatives "without interference, influence, or coercion," did not confer "merely an abstract right," but was judicially enforceable through a private cause of action.[7] 28 U. S., 58, 567-568. In cases such as these, the question is which class of litigants may enforce in court legislatively created rights or obligations. If a litigant is an appropriate party to invoke the power of the courts, it is said that he has a "cause of action" under the statute, and that this cause of action is a necessary element of his "claim." So understood, the question whether a litigant has a "cause of action" is analytically distinct and prior to the question of what relief, if any, a litigant may be entitled to receive. The concept of a "cause of action" is employed specifically to determine who may judicially enforce the statutory rights or obligations.[8] *240 It is in this sense that the Court of Appeals concluded that petitioner lacked a cause of action. The Court of Appeals reached this conclusion through the application of the criteria set out in for ascertaining whether a private cause of action may be implied from "a *24 statute not expressly providing one."[9] The Court of Appeals used these criteria to determine that those in petitioner's position should not be able to enforce the Fifth Amendment's Due Process Clause, and that petitioner therefore had no cause of action under the Amendment. This was error, for the question of who may enforce a statutory right is fundamentally different from the question of who may enforce a right that is protected by the Constitution. Statutory rights and obligations are established by Congress, and it is entirely appropriate for Congress, in creating these rights and obligations, to determine in addition who may enforce them and in what manner. For example, statutory rights and obligations are often embedded in complex regulatory schemes, so that if they are not enforced through private causes of action, they may nevertheless be enforced through alternative mechanisms, such as criminal prosecutions, see or other public causes of actions. See Securities Investor Protection National Railroad Passenger (4). In each case, however, the question is the nature of the legislative intent informing a specific statute, and Cort set out the criteria through which this intent could be discerned. The Constitution, on the other hand, does not "partake of the prolixity of a legal code." It speaks instead with a majestic simplicity. One of "its important objects," ibid., is the designation of rights. And in "its great outlines," ibid., the judiciary is clearly discernible as the primary means through which these rights may be enforced. As James Madison stated when he presented the Bill of Rights to the Congress: "If [these rights] are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they *242 will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights." Annals of Cong. 439 (789). At least in the absence of "a textually demonstrable constitutional commitment of [an] issue to a coordinate political department," we presume that justiciable constitutional rights are to be enforced through the courts. And, unless such rights are to become merely precatory, the class of those litigants who allege that their own constitutional rights have been violated, and who at the same time have no effective means other than the judiciary to enforce these rights, must be able to invoke the existing jurisdiction of the courts for the protection of their justiciable constitutional rights. "The very essence of civil liberty," wrote Mr. Chief Justice Marshall in "certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection." Traditionally, therefore, "it is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution and to restrain individual state officers from doing what the 4th Amendment forbids the State to do." See 403 U. S., 00 Indeed, this Court has already settled that a cause of action may be implied directly under the equal protection component of the Due Process Clause of the Fifth Amendment in favor of those who seek to enforce this constitutional right.[20] The plaintiffs in for example, claimed that they had been refused admission into certain public schools in the District of Columbia solely on account of their race. They rested their suit directly on the Fifth Amendment and on the general federal-question jurisdiction of the district courts, 28 U.S. C. 33. The District Court dismissed their complaint for failure "to state a claim upon which relief can be granted." Fed. Rule Civ. Proc. 2 (b) (6). This Court reversed. Plaintiffs were clearly the appropriate parties to bring such a suit, and this Court held that equitable relief should be made available. Like the plaintiffs in petitioner rests her claim directly on the Due Process Clause of the Fifth Amendment. She claims that her rights under the Amendment have been violated, and that she has no effective means other than the judiciary to vindicate these rights.[2]*244 We conclude, therefore, that she is an appropriate party to invoke the general federal-question jurisdiction of the District Court to seek relief. She has a cause of action under the Fifth Amendment.[22] Although petitioner has a cause of action, her complaint might nevertheless be dismissed under Rule 2 (b) (6) unless it can be determined that judicial relief is available. We therefore proceed to consider whether a damages remedy is an appropriate form of relief. *245 C We approach this inquiry on the basis of established law. "[I]t is well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done." holds that in appropriate circumstances a federal district court may provide relief in damages for the violation of constitutional rights if there are "no special factors counselling hesitation in the absence of affirmative action by Congress." See 438 U. S., 04. First, a damages remedy is surely appropriate in this case. "Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty." Relief in damages would be judicially manageable, for the case presents a focused remedial issue without difficult questions of valuation or causation. See 403 U.S., 09 Litigation under Title VII of the Civil Rights Act of 964 has given federal courts great experience evaluating claims for backpay due to illegal sex discrimination. See 42 U.S. C. 2000e-5 (g). Moreover, since respondent is no longer a Congressman, see n. equitable relief in the form of reinstatement would be unavailing. And there are available no other alternative forms of judicial relief. For Davis, as for "it is damages or nothing."[23], 0 *246 Second, although a suit against a Congressman for putatively unconstitutional actions taken in the course of his official conduct does raise special concerns counseling hesitation, we hold that these concerns are coextensive with the protections afforded by the Speech or Debate Clause.[24] See n. If respondent's actions are not shielded by the Clause, we apply the principle that "legislators ought generally to be bound by [the law] as are ordinary persons." 65 (2). Cf. 42 U.S. 306, (3). As stated only last Term: "Our system of jurisprudence rests on the assumption that all individuals, whatever their position in government, are subject to federal law: "`No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.' United States v. Lee, 06 U. S. [96,] 220 [(882)]." 438 U.S., 06.[25] Third, there is in this case "no explicit congressional declaration *247 that persons" in petitioner's position injured by unconstitutional federal employment discrimination "may not recover money damages from" those responsible for the injury. (Emphasis supplied.) The Court of Appeals apparently interpreted 77 of Title VII of the Civil Rights Act of 964, 86 Stat. 42 U.S. C. 2000e-6, as an explicit congressional prohibition against judicial remedies for those in petitioner's position. When 77 was added to Title VII to protect federal employees from discrimination, it failed to extend this protection to congressional employees such as petitioner who are not in the competitive service.[26] See 42 U.S. C. 2000e-6 (a). There is no evidence, however, that Congress meant 77 to foreclose alternative remedies available to those not covered by the statute. Such silence is far from "the clearly discernible will of Congress" perceived by the Court of Indeed, the Court of Appeals' conclusion that 77 permits judicial relief to be made available only to those who are protected by the statute is patently inconsistent with which held that equitable relief was available in a challenge to the constitutionality of Civil Service Commission regulations excluding aliens from federal employment. That 77 does not prohibit discrimination on the basis of alienage[27] did not prevent Hampton from authorizing relief. In a similar manner, we do not now interpret 77 to foreclose the judicial remedies of those expressly unprotected by the statute. On the contrary, 77 leaves undisturbed whatever remedies petitioner might otherwise possess. *248 Finally, the Court of Appeals appeared concerned that, if a damages remedy were made available to petitioner, the danger existed "of deluging federal courts with claims" We do not perceive the potential for such a deluge. By virtue of 42 U.S. C. 983, a damages remedy is already available to redress injuries such as petitioner's when they occur under color of state law. Moreover, a plaintiff seeking a damages remedy under the Constitution must first demonstrate that his constitutional rights have been violated. We do not hold that every tort by a federal official may be redressed in damages. See (963). And, of course, were Congress to create equally effective alternative remedies, the need for damages relief might be obviated. See 403 U. S., But perhaps the most fundamental answer to the concerns expressed by the Court of Appeals is that provided by Mr. Justice Harlan concurring in : "Judicial resources, I am well aware, are increasingly scarce these days. Nonetheless, when we automatically close the courthouse door solely on this basis, we implicitly express a value judgment on the comparative importance of classes of legally protected interests. And current limitations upon the effective functioning of the courts arising from budgetary inadequacies should not be permitted to stand in the way of the recognition of otherwise sound constitutional principles." We conclude, therefore, that in this case, as in if petitioner is able to prevail on the merits, she should be able to redress her injury in damages, a "remedial mechanism normally available in the federal courts." III We hold today that the Court of Appeals for the Fifth Circuit, en banc, must be reversed because petitioner has a *249 cause of action under the Fifth Amendment, and because her injury may be redressed by a damages The Court of Appeals did not consider, however, whether respondent's conduct was shielded by the Speech or Debate Clause of the Constitution. Accordingly, we do not reach this question. And, of course, we express no opinion as to the merits of petitioner's complaint. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered. MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE POWELL and MR. |
Justice Marshall | concurring | false | Mincey v. Arizona | 1978-06-21T00:00:00 | null | https://www.courtlistener.com/opinion/109905/mincey-v-arizona/ | https://www.courtlistener.com/api/rest/v3/clusters/109905/ | 1,978 | 1977-123 | 2 | 9 | 0 | I join the opinion of the Court, which holds that petitioner's rights under the Fourth and Fourteenth Amendments have been violated. I write today to emphasize a point that is illustrated by the instant case, but that applies more generally to all cases in which we are asked to review Fourth Amendment issues arising out of state criminal convictions.
It is far from clear that we would have granted certiorari solely to resolve the involuntary-statement issue in this case, for that could have been resolved on federal habeas corpus. With regard to the Fourth Amendment issue, however, we had little choice but to grant review, because our decision in Stone v. Powell, 428 U.S. 465 (1976), precludes federal habeas consideration of such issues. In Stone the Court held that, "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id., at 494 (footnotes omitted). Because of this holding, petitioner would not have been able to present to a federal habeas court the Fourth Amendment claim that the Court today unanimously upholds.
The additional responsibilities placed on this Court in the wake of Stone become apparent upon examination of decisions *403 of the Arizona Supreme Court on the Fourth Amendment issue presented here. The Arizona court created its "murder scene exception" in a 1971 case. State v. Sample, 107 Ariz. 407, 409-410, 489 P.2d 44, 46-47. A year later, when the defendant in that case sought federal habeas corpus relief, the United States Court of Appeals for the Ninth Circuit ruled, as we do today, that the exception could not be upheld under the Fourth Amendment. Sample v. Eyman, 469 F.2d 819, 821-822 (1972). When the Arizona Supreme Court next gave plenary consideration to the issue, prior to our decision in Stone, it apparently felt bound by the Ninth Circuit's Sample decision, although it found the case before it to be distinguishable. State v. Duke, 110 Ariz. 320, 324, 518 P.2d 570, 574 (1974).[1]
When the Arizona Supreme Court rendered its decision in the instant case, however, it took a different approach. The decision, issued nearly a year after Stone, merely noted that the Ninth Circuit had "disagreed" with the Arizona court's view of the validity of the murder-scene exception. 115 Ariz. 472, 482 n. 4, 566 P.2d 273, 283 n. 4 (1977). It thus created an effective "conflict" for us to resolve. Cf. this Court's Rule 19 (1) (b). If certiorari had not been granted, we would have left standing a decision of the State's highest court on a question of federal constitutional law that had been resolved in a directly opposing way by the highest federal court having *404 special responsibility for the State. Regardless of which court's view of the Constitution was the correct one, such nonuniformity on Fourth Amendment questions is obviously undesirable; it is as unfair to state prosecutors and judges who must make difficult determinations regarding what evidence is subject to exclusionas it is to state criminal defendants.
Prior to Stone v. Powell, there would have been no need to grant certiorari in a case such as this, since the federal habeas remedy would have been available to the defendant. Indeed, prior to Stone petitioner here probably would not even have had to utilize federal habeas, since the Arizona courts were at that earlier time more inclined to follow the federal constitutional pronouncements of the Ninth Circuit, as discussed above. But Stone eliminated the habeas remedy with regard to Fourth Amendment violations, thus allowing state-court rulings to diverge from lower federal-court rulings on these issues and placing a correspondingly greater burden on this Court to ensure uniform federal law in the Fourth Amendment area.
At the time of Stone my Brother BRENNAN wrote that "institutional constraints totally preclude any possibility that this Court can adequately oversee whether state courts have properly applied federal law." 428 U.S., at 526 (dissenting opinion); see id., at 534. Because of these constraints, we will often be faced with a Hobson's choice in cases of less than national significance that could formerly have been left to the lower federal courts: either to deny certiorari and thereby let stand divergent state and federal decisions with regard to Fourth Amendment rights; or to grant certiorari and thereby add to our calendar, which many believe is already overcrowded, cases that might better have been resolved elsewhere. In view of this problem and others,[2] I hope that the *405 Court will at some point reconsider the wisdom of Stone v. Powell.[3]
MR. JUSTICE REHNQUIST, concurring in part and dissenting in part.
Petitioner was indicted for murder, assault, and three counts of narcotics offenses. He was convicted on all charges. On appeal, the Supreme Court of Arizona reversed all but the narcotics convictions. 115 Ariz. 472, 566 P.2d 273 (1977). In his petition for certiorari, petitioner challenged the introduction of evidence material to his narcotics convictions that was seized during a lengthy warrantless search of his apartment. Petitioner also challenged on voluntariness grounds the introduction of various statements made to the police relating to the murder charge. We granted certiorari, 434 U.S. 902, and the Court today reverses the Supreme Court of Arizona on both issues. While I agree with the Court that the warrantless search was not justifiable on the grounds advanced by the Arizona Supreme Court, I dissent from the Court's holding that Mincey's statements were involuntary and thus inadmissible.
I
I join Part I of the Court's opinion. As the Supreme Court of Arizona recognized, the four-day warrantless search of petitioner's apartment did not, on the facts developed at trial, "fit within [any] usual `exigent circumstances' exception." 115 Ariz., at 482, 566 P.2d, at 283. Instead, the State of *406 Arizona asks us to adopt a separate "murder scene" exception to the warrant requirement and the Court, for the reasons stated in its opinion, correctly rejects this invitation.
I write separately on this issue only to emphasize that the question of what, if any, evidence was seized under established Fourth Amendment standards is left open for the Arizona courts to resolve on remand. Ante, at 395 n. 9. Much of the evidence introduced by the State at trial was apparently removed from the apartment the same day as the shooting. App. 40. And the State's brief suggests that some evidence for example, blood on the floorrequired immediate examination. Brief for Respondent 70-71. The question of what evidence would have been "lost, destroyed, or removed" if a warrant had been obtained, ante, at 394, otherwise required an immediate search, or was in plain view should be considered on remand by the Arizona courts.
In considering whether exigencies required the search for or seizure of particular evidence, the previous events within the apartment cannot be ignored. I agree with the Court that the police's entry to arrest Mincey, followed by the shooting and the search for victims, did not justify the later four-day search of the apartment. Ante, at 391-392. But the constitutionality of a particular search is a question of reasonableness and depends on "a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). See Terry v. Ohio, 392 U.S. 1, 19 (1968). In Pennsylvania v. Mimms, 434 U.S. 106 (1977), we held that once a motor vehicle had been lawfully detained for a traffic violation, police officers could constitutionally order the driver out of the vehicle. In so holding, we emphasized that the challenged intrusion was "occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to get out of the car. We think this additional intrusion can only be described as de minimis." *407 Id., at 111. Similarly, in the instant case, the prior intrusions occasioned by the shooting and the police's response thereto may legitimize a search under some exigencies that in tamer circumstances might not permit a search.
II
The Court in Part II of its opinion advises the Arizona courts on the admissibility of certain statements made by Mincey that are relevant only to the murder charge. Because Mincey's murder conviction was reversed by the Arizona Supreme Court, and it is not certain that there will be a retrial. I would not reach this issue. Since the Court addresses the issue, however, I must register my disagreement with its conclusion.
Before trial, Mincey moved to suppress as involuntary certain statements that he had made while confined in an intensive care unit some hours after the shooting. As the Court acknowledges, the trial court found "`with unmistakable clarity'" that the statements were voluntary, ante, at 397 n. 12, and the Supreme Court of Arizona unanimously affirmed. 115 Ariz., at 479-480, 566 P. 2d, at 280-281. This Court now disagrees and holds that "Mincey's statements were not `the product of his free and rational choice'" and therefore "cannot be used in any way against [him] at his trial." Ante, at 401, 402. Because I believe that the Court both has failed to accord the state-court finding the deference that the Court has always found such findings due and also misapplied our past precedents, I dissent.
As the Court notes, ante, at 398, past cases of this Court hold that a state-court finding as to voluntariness which is "not fairly supported by the record cannot be conclusive of federal rights." Townsend v. Sain, 372 U.S. 293, 316 (1963) (emphasis added). Instead, these cases require the Court to "make an independent determination on the undisputed facts." Stroble v. California, 343 U.S. 181, 190 (1952) (emphasis added); *408 Malinski v. New York, 324 U.S. 401, 404 (1945). It is well established that, "for purposes of review in this Court, the determination of the trial judge or of the jury will ordinarily be taken to resolve evidentiary conflicts and may be entitled to some weight even with respect to the ultimate conclusion on the crucial issue of voluntariness." Haynes v. Washington, 373 U.S. 503, 515 (1963). See Lisenba v. California, 314 U.S. 219, 238 (1941); Blackburn v. Alabama, 361 U.S. 199, 205, and n. 5 (1960). Such deference, particularly on the resolution of evidentiary conflicts, "is particularly apposite because the trial judge and jury are closest to the trial scene and thus afforded the best opportunity to evaluate contradictory testimony." Haynes, supra, at 516.
The Court in this case, however, ignores entirely some evidence of voluntariness and distinguishes away yet other testimony. There can be no discounting that Mincey was seriously wounded and laden down with medical equipment. Mincey was certainly not able to move about and, because of the breathing tube in his mouth, had to answer Detective Hust's questions on paper. But the trial court was certainly not required to find, as the Court would imply, that Mincey was "a seriously and painfully wounded man on the edge of consciousness." Ante, at 401. Nor is it accurate to conclude that Detective Hust "ceased the interrogation only during intervals when Mincey lost consciousness or received medical treatment, and after each such interruption returned relentlessly to his task." Ibid.
As the Arizona Supreme Court observed in affirming the trial court's finding of voluntariness, Mincey's nurse
"testified that she had not given [Mincey] any medication and that [he] was alert and able to understand the officer's questions. . . . She said that [Mincey] was in moderate pain but was very cooperative with everyone. The interrogating officer also testified that [Mincey] did not appear to be under the influence of drugs and that *409 [his] answers were generally responsive to the questions." 115 Ariz., at 480, 566 P.2d, at 281.
See App. 50-51 (testimony of Detective Hust), 63 and 66 (testimony of Nurse Graham).[1] The uncontradicted testimony of Detective Hust also reveals a questioning that was far from "relentless." While the interviews took place over a three-hour time span, the interviews were not "very long; probably not more than an hour total for everything." Id., at 59. Hust would leave the room whenever Mincey received medical treatment "or if it looked like he was getting a little bit exhausted." Ibid. According to Detective Hust, Mincey never "los[t] consciousness at any time." Id., at 58.
As the Court openly concedes, there were in this case none of the "gross abuses that have led the Court in other cases to find confessions involuntary, such as beatings . . . or `truth serums.'" Ante, at 401. Neither is this a case, however, where the defendant's will was "simply overborne" by "mental coercion." Cf. Blackburn v. Alabama, supra, at 206; Davis v. North Carolina, 384 U.S. 737, 741 (1966); Greenwald v. Wisconsin, 390 U.S. 519, 521 (1968). As the Supreme Court of Arizona observed, it was the testimony of both Detective Hust and Nurse Graham "that neither mental or physical force nor abuse was used on [Mincey] . . . . Nor were any promises made." 115 Ariz., at 480, 566 P. 2d. at 281. See App. 58-59 (testimony of Detective Hust) and 63 (testimony of Nurse Graham). According to Mincey's own testimony, he wanted *410 to help Hust "the best I could" and tried to answer each question "to the best of my recollection at the time that this was going on." Id., at 86. Mincey did not claim that he felt compelled by Detective Hust to answer the questions propounded.[2] Cf. Greenwald, supra, at 521.
By all of these standards enunciated in our previous cases, I think the Court today goes too far in substituting its own judgment for the judgment of a trial court and the highest court of a State, both of which decided these disputed issues differently than does this Court, and both of which were a good deal closer to the factual occurrences than is this Court. Admittedly we may not abdicate our duty to decide questions of constitutional law under the guise of wholly remitting to state courts the function of fact finding which is a necessary ingredient of the process of constitutional decision. But the authorities previously cited likewise counsel us against going to the other extreme, and attempting to extract from a cold record bits and pieces of evidence which we then treat as the "facts" of the case. I believe that the trial court was entitled to conclude that, notwithstanding Mincey's medical condition, his statements in the intensive care unit were admissible. The fact that the same court might have been equally entitled to reach the opposite conclusion does not justify this Court's adopting the opposite conclusion.
I therefore dissent from Part II of the Court's opinion.
| I join the opinion of the Court, which holds that petitioner's rights under the Fourth and Fourteenth Amendments have been violated. I write today to emphasize a point that is illustrated by the instant case, but that applies more generally to all cases in which we are asked to review Fourth Amendment issues arising out of state criminal convictions. It is far from clear that we would have granted certiorari solely to resolve the involuntary-statement issue in this case, for that could have been resolved on federal habeas corpus. With regard to the Fourth Amendment issue, however, we had little choice but to grant review, because our decision in precludes federal habeas consideration of such issues. In Stone the Court held that, "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Because of this holding, petitioner would not have been able to present to a federal habeas court the Fourth Amendment claim that the Court today unanimously upholds. The additional responsibilities placed on this Court in the wake of Stone become apparent upon examination of decisions *403 of the Arizona Supreme Court on the Fourth Amendment issue presented here. The Arizona court created its "murder scene exception" in a 71 case. When the Arizona Supreme Court next gave plenary consideration to the issue, prior to our decision in Stone, it apparently felt bound by the Ninth Circuit's Sample decision, although it found the case before it to be distinguishable.[1] When the Arizona Supreme Court rendered its decision in the instant case, however, it took a different approach. The decision, issued nearly a year after Stone, merely noted that the Ninth Circuit had "disagreed" with the Arizona court's view of the validity of the murder-scene exception. It thus created an effective "conflict" for us to resolve. Cf. this Court's Rule (1) (b). If certiorari had not been granted, we would have left standing a decision of the State's highest court on a question of federal constitutional law that had been resolved in a directly opposing way by the highest federal court having * special responsibility for the State. Regardless of which court's view of the Constitution was the correct one, such nonuniformity on Fourth Amendment questions is obviously undesirable; it is as unfair to state prosecutors and judges who must make difficult determinations regarding what evidence is subject to exclusionas it is to state criminal defendants. Prior to there would have been no need to grant certiorari in a case such as this, since the federal habeas remedy would have been available to the defendant. Indeed, prior to Stone petitioner here probably would not even have had to utilize federal habeas, since the Arizona courts were at that earlier time more inclined to follow the federal constitutional pronouncements of the Ninth Circuit, as discussed above. But Stone eliminated the habeas remedy with regard to Fourth Amendment violations, thus allowing state-court rulings to diverge from lower federal-court rulings on these issues and placing a correspondingly greater burden on this Court to ensure uniform federal law in the Fourth Amendment area. At the time of Stone my Brother BRENNAN wrote that "institutional constraints totally preclude any possibility that this Court can adequately oversee whether state courts have properly applied federal law." ; see Because of these constraints, we will often be faced with a Hobson's choice in cases of less than national significance that could formerly have been left to the lower federal courts: either to deny certiorari and thereby let stand divergent state and federal decisions with regard to Fourth Amendment rights; or to grant certiorari and thereby add to our calendar, which many believe is already overcrowded, cases that might better have been resolved elsewhere. In view of this problem and others,[2] I hope that the *405 Court will at some point reconsider the wisdom of[3] MR. JUSTICE REHNQUIST, concurring in part and dissenting in part. Petitioner was indicted for murder, assault, and three counts of narcotics offenses. He was convicted on all charges. On appeal, the Supreme Court of Arizona reversed all but the narcotics convictions. In his petition for certiorari, petitioner challenged the introduction of evidence material to his narcotics convictions that was seized during a lengthy warrantless search of his apartment. Petitioner also challenged on voluntariness grounds the introduction of various statements made to the police relating to the murder charge. We granted certiorari, and the Court today reverses the Supreme Court of Arizona on both issues. While I agree with the Court that the warrantless search was not justifiable on the grounds advanced by the Arizona Supreme Court, I dissent from the Court's holding that Mincey's statements were involuntary and thus inadmissible. I I join Part I of the Court's opinion. As the Supreme Court of Arizona recognized, the four-day warrantless search of petitioner's apartment did not, on the facts developed at trial, "fit within [any] usual `exigent circumstances' exception." Instead, the State of *406 Arizona asks us to adopt a separate "murder scene" exception to the warrant requirement and the Court, for the reasons stated in its opinion, correctly rejects this invitation. I write separately on this issue only to emphasize that the question of what, if any, evidence was seized under established Fourth Amendment standards is left open for the Arizona courts to resolve on remand. Ante, at 395 n. 9. Much of the evidence introduced by the State at trial was apparently removed from the apartment the same day as the shooting. App. 40. And the State's brief suggests that some evidence for example, blood on the floorrequired immediate examination. Brief for Respondent 70-71. The question of what evidence would have been "lost, destroyed, or removed" if a warrant had been obtained, ante, at 394, otherwise required an immediate search, or was in plain view should be considered on remand by the Arizona courts. In considering whether exigencies required the search for or seizure of particular evidence, the previous events within the apartment cannot be ignored. I agree with the Court that the police's entry to arrest Mincey, followed by the shooting and the search for victims, did not justify the later four-day search of the apartment. Ante, at 391-392. But the constitutionality of a particular search is a question of reasonableness and depends on "a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." United See In we held that once a motor vehicle had been lawfully detained for a traffic violation, police officers could constitutionally order the driver out of the vehicle. In so holding, we emphasized that the challenged intrusion was "occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to get out of the car. We think this additional intrusion can only be described as de minimis." *407 Similarly, in the instant case, the prior intrusions occasioned by the shooting and the police's response thereto may legitimize a search under some exigencies that in tamer circumstances might not permit a search. II The Court in Part II of its opinion advises the Arizona courts on the admissibility of certain statements made by Mincey that are relevant only to the murder charge. Because Mincey's murder conviction was reversed by the Arizona Supreme Court, and it is not certain that there will be a retrial. I would not reach this issue. Since the Court addresses the issue, however, I must register my disagreement with its conclusion. Before trial, Mincey moved to suppress as involuntary certain statements that he had made while confined in an intensive care unit some hours after the shooting. As the Court acknowledges, the trial court found "`with unmistakable clarity'" that the statements were voluntary, ante, at 397 n. 12, and the Supreme Court of Arizona unanimously affirmed. -480, 566 P. 2d, at 280-281. This Court now disagrees and holds that "Mincey's statements were not `the product of his free and rational choice'" and therefore "cannot be used in any way against [him] at his trial." Ante, at 401, 402. Because I believe that the Court both has failed to accord the state-court finding the deference that the Court has always found such findings due and also misapplied our past precedents, I dissent. As the Court notes, ante, at 398, past cases of this Court hold that a state-court finding as to voluntariness which is "not fairly supported by the record cannot be conclusive of federal rights." (63) Instead, these cases require the Court to "make an independent determination on the undisputed facts." 0 (52) ; *408 U.S. 401, (45). It is well established that, "for purposes of review in this Court, the determination of the trial judge or of the jury will ordinarily be taken to resolve evidentiary conflicts and may be entitled to some weight even with respect to the ultimate conclusion on the crucial issue of voluntariness." (63). See 314 U.S. 2, (41); 361 U.S. 9, (60). Such deference, particularly on the resolution of evidentiary conflicts, "is particularly apposite because the trial judge and jury are closest to the trial scene and thus afforded the best opportunity to evaluate contradictory testimony." The Court in this case, however, ignores entirely some evidence of voluntariness and distinguishes away yet other testimony. There can be no discounting that Mincey was seriously wounded and laden down with medical equipment. Mincey was certainly not able to move about and, because of the breathing tube in his mouth, had to answer Detective Hust's questions on paper. But the trial court was certainly not required to find, as the Court would imply, that Mincey was "a seriously and painfully wounded man on the edge of consciousness." Ante, at 401. Nor is it accurate to conclude that Detective Hust "ceased the interrogation only during intervals when Mincey lost consciousness or received medical treatment, and after each such interruption returned relentlessly to his task." As the Arizona Supreme Court observed in affirming the trial court's finding of voluntariness, Mincey's nurse "testified that she had not given [Mincey] any medication and that [he] was alert and able to understand the officer's questions. She said that [Mincey] was in moderate pain but was very cooperative with everyone. The interrogating officer also testified that [Mincey] did not appear to be under the influence of drugs and that *409 [his] answers were generally responsive to the questions." See App. 50-51 (testimony of Detective Hust), 63 and 66 (testimony of Nurse Graham).[1] The uncontradicted testimony of Detective Hust also reveals a questioning that was far from "relentless." While the interviews took place over a three-hour time span, the interviews were not "very long; probably not more than an hour total for everything." Hust would leave the room whenever Mincey received medical treatment "or if it looked like he was getting a little bit exhausted." According to Detective Hust, Mincey never "los[t] consciousness at any time." As the Court openly concedes, there were in this case none of the "gross abuses that have led the Court in other cases to find confessions involuntary, such as beatings or `truth serums.'" Ante, at 401. Neither is this a case, however, where the defendant's will was "simply overborne" by "mental coercion." Cf. ; (66); 390 U.S. 5, As the Supreme Court of Arizona observed, it was the testimony of both Detective Hust and Nurse Graham "that neither mental or physical force nor abuse was used on [Mincey] Nor were any promises made." 566 P. 2d. at 281. See App. 58-59 (testimony of Detective Hust) and 63 (testimony of Nurse Graham). According to Mincey's own testimony, he wanted *410 to help Hust "the best I could" and tried to answer each question "to the best of my recollection at the time that this was going on." Mincey did not claim that he felt compelled by Detective Hust to answer the questions propounded.[2] Cf. at By all of these standards enunciated in our previous cases, I think the Court today goes too far in substituting its own judgment for the judgment of a trial court and the highest court of a State, both of which decided these disputed issues differently than does this Court, and both of which were a good deal closer to the factual occurrences than is this Court. Admittedly we may not abdicate our duty to decide questions of constitutional law under the guise of wholly remitting to state courts the function of fact finding which is a necessary ingredient of the process of constitutional decision. But the authorities previously cited likewise counsel us against going to the other extreme, and attempting to extract from a cold record bits and pieces of evidence which we then treat as the "facts" of the case. I believe that the trial court was entitled to conclude that, notwithstanding Mincey's medical condition, his statements in the intensive care unit were admissible. The fact that the same court might have been equally entitled to reach the opposite conclusion does not justify this Court's adopting the opposite conclusion. I therefore dissent from Part II of the Court's opinion. |
Justice Thomas | second_dissenting | false | Comptroller of Treasury of Md. v. Wynne | 2015-05-18T00:00:00 | null | https://www.courtlistener.com/opinion/2801433/comptroller-of-treasury-of-md-v-wynne/ | https://www.courtlistener.com/api/rest/v3/clusters/2801433/ | 2,015 | 2014-021 | 1 | 5 | 4 | “I continue to adhere to my view that the negative
Commerce Clause has no basis in the text of the Constitu-
tion, makes little sense, and has proved virtually unwork-
able in application, and, consequently, cannot serve as a
basis for striking down a state statute.” McBurney v.
Young, 569 U. S. ___, ___ (2013) (THOMAS, J., concurring)
(slip op., at 1) (internal quotation marks and alteration
omitted); accord, e.g., Camps Newfound/Owatonna, Inc. v.
Town of Harrison, 520 U.S. 564, 610–612 (1997)
(THOMAS, J., dissenting). For that reason, I would uphold
Maryland’s tax scheme.
In reaching the contrary conclusion, the Court proves
just how far our negative Commerce Clause jurisprudence
has departed from the actual Commerce Clause. Accord-
ing to the majority, a state income tax that fails to provide
residents with “a full credit against the income taxes that
they pay to other States” violates the Commerce Clause.
Ante, at 1. That news would have come as a surprise to
those who penned and ratified the Constitution. As this
Court observed some time ago, “Income taxes . . . were
imposed by several of the States at or shortly after the
adoption of the Federal Constitution.” Shaffer v. Carter,
2 COMPTROLLER OF TREASURY OF MD. v. WYNNE
THOMAS, J., dissenting
252 U.S. 37, 51 (1920).* There is no indication that those
early state income tax schemes provided credits for income
taxes paid elsewhere. Thus, under the majority’s reason-
ing, all of those state laws would have contravened the
newly ratified Commerce Clause.
It seems highly implausible that those who ratified the
Commerce Clause understood it to conflict with the in-
come tax laws of their States and nonetheless adopted it
without a word of concern. That silence is particularly
deafening given the importance of such taxes for raising
revenues at the time. See Kinsman, The Income Tax in
the Commonwealths of the United States 7, in 4 Publica-
tions of the American Economic Assn. (1903) (noting, for
example, that “Connecticut from her earliest history had
followed the plan of taxing incomes rather than property”
and that “[t]he total assessed value of [taxable] incomes in
Connecticut in the year 1795 was a little over $300,000”
(internal quotation marks omitted)).
In other areas of constitutional analysis, we would have
considered these laws to be powerful evidence of the origi-
nal understanding of the Constitution. We have, for ex-
——————
* See, e.g., 1777–1778 Mass. Acts ch. 13, §2, p. 756 (taxing “the
amount of [inhabitants’] income from any profession, faculty, handi-
craft, trade or employment; and also on the amount of all incomes and
profits gained by trading by sea and on shore”); 1781 Pa. Laws ch. 961,
§12, p. 390 (providing that “[a]ll offices and posts of profit, trades,
occupations and professions (that of ministers of the gospel of all
denominations and schoolmasters only excepted), shall be rated at the
discretion of the township, ward or district assessors . . . having due
regard of the profits arising from them”); see also Report of Oliver
Wolcott, Jr., Secretary of the Treasury, to 4th Cong., 2d Sess., concern-
ing Direct Taxes (1796), in 1 American State Papers, Finance 414, 423
(1832) (describing Connecticut’s income tax as assessing, as relevant,
“the estimated gains or profits arising from any, and all, lucrative
professions, trades, and occupations”); id., at 429 (noting that, in
Delaware, “[t]axes have been hitherto collected on the estimated annual
income of the inhabitants of this State, without reference to specific
objects”).
Cite as: 575 U. S. ____ (2015) 3
THOMAS, J., dissenting
ample, relied on the practices of the First Congress to
guide our interpretation of provisions defining congres-
sional power. See, e.g., Golan v. Holder, 565 U. S. ___, ___
(2012) (slip op., at 16) (Copyright Clause); McCulloch v.
Maryland, 4 Wheat. 316, 401–402 (1819) (Necessary and
Proper Clause). We have likewise treated “actions taken
by the First Congress a[s] presumptively consistent with
the Bill of Rights,” Town of Greece v. Galloway, 572 U. S.
___, ___ (2014) (ALITO, J., concurring) (slip op., at 12).
See, e.g., id., at ___ – ___ (majority opinion) (slip op., at 7–
8); Carroll v. United States, 267 U.S. 132, 150–152 (1925).
And we have looked to founding-era state laws to guide
our understanding of the Constitution’s meaning. See,
e.g., District of Columbia v. Heller, 554 U.S. 570, 600–602
(2008) (Second Amendment); Atwater v. Lago Vista, 532
U.S. 318, 337–340 (2001) (Fourth Amendment); Roth v.
United States, 354 U.S. 476, 482–483 (1957) (First
Amendment); Kilbourn v. Thompson, 103 U.S. 168, 202–
203 (1881) (Speech and Debate Clause); see also Calder v.
Bull, 3 Dall. 386, 396–397 (1798) (opinion of Paterson, J.)
(Ex Post Facto Clause).
Even if one assumed that the negative Commerce
Clause existed, I see no reason why it would be subject to
a different mode of constitutional interpretation. The
majority quibbles that I fail to “sho[w] that the small
number of individuals who earned income out of State
were taxed twice on that income,” ante, at 28, but given
the deference we owe to the duly enacted laws of a State—
particularly those concerning the paradigmatically sover-
eign activity of taxation—the burden of proof falls on those
who would wield the Federal Constitution to foreclose that
exercise of sovereign power.
I am doubtful that the majority’s application of one of
our many negative Commerce Clause tests is correct
under our precedents, see ante, at 5–7 (SCALIA, J., dissent-
ing); post, at 10–19 (GINSBURG, J., dissenting), but I am
4 COMPTROLLER OF TREASURY OF MD. v. WYNNE
THOMAS, J., dissenting
certain that the majority’s result is incorrect under our
Constitution. As was well said in another area of constitu-
tional law: “[I]f there is any inconsistency between [our]
tests and the historic practice . . . , the inconsistency calls
into question the validity of the test, not the historic prac-
tice.” Town of Greece, supra, at ___ (ALITO, J., concurring)
(slip op., at 12).
I respectfully dissent.
Cite as: 575 U. S. ____ (2015) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–485
_________________
COMPTROLLER OF THE TREASURY OF MARYLAND,
PETITIONER v. BRIAN WYNNE ET UX.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
MARYLAND
[May 18, 2015]
JUSTICE GINSBURG, with whom JUSTICE SCALIA and
JUSTICE KAGAN join, dissenting.
Today’s decision veers from a principle of interstate and
international taxation repeatedly acknowledged by this
Court: A nation or State “may tax all the income of its
residents, even income earned outside the taxing jurisdic-
tion.” Oklahoma Tax Comm’n v. Chickasaw Nation, 515
U.S. 450, 462–463 (1995). In accord with this principle,
the Court has regularly rejected claims that taxes on a
resident’s out-of-state income violate the Due Process
Clause for lack of a sufficient “connection” to the taxing
State. Quill Corp. v. North Dakota, 504 U.S. 298, 306
(1992) (internal quotation marks omitted); see, e.g., Law-
rence v. State Tax Comm’n of Miss., 286 U.S. 276, 281
(1932). But under dormant Commerce Clause jurispru-
dence, the Court decides, a State is not really empowered
to tax a resident’s income from whatever source derived.
In taxing personal income, the Court holds, source-based
authority, i.e., authority to tax commerce conducted within
a State’s territory, boxes in the taxing authority of a tax-
payer’s domicile.
As I see it, nothing in the Constitution or in prior deci-
sions of this Court dictates that one of two States, the
domiciliary State or the source State, must recede simply
because both have lawful tax regimes reaching the same
2 COMPTROLLER OF TREASURY OF MD. v. WYNNE
GINSBURG, J., dissenting
income. See Moorman Mfg. Co. v. Bair, 437 U.S. 267,
277, n. 12 (1978) (finding no “discriminat[ion] against
interstate commerce” where alleged taxation disparities
were “the consequence of the combined effect” of two other-
wise lawful income-tax schemes). True, Maryland elected
to deny a credit for income taxes paid to other States in
computing a resident’s county tax liability. It is equally
true, however, that the other States that taxed the
Wynnes’ income elected not to offer them a credit for their
Maryland county income taxes. In this situation, the
Constitution does not prefer one lawful basis for state
taxation of a person’s income over the other. Nor does
it require one State, in this case Maryland, to limit its
residence-based taxation, should the State also choose to
exercise, to the full extent, its source-based authority.
States often offer their residents credits for income taxes
paid to other States, as Maryland does for state income
tax purposes. States do so, however, as a matter of tax
“policy,” Chickasaw Nation, 515 U.S., at 463, n. 12 (inter-
nal quotation marks omitted), not because the Constitu-
tion compels that course.
I
For at least a century, “domicile” has been recognized as
a secure ground for taxation of residents’ worldwide in-
come. Lawrence, 286 U.S., at 279. “Enjoyment of the
privileges of residence within [a] state, and the attendant
right to invoke the protection of its laws,” this Court has
explained, “are inseparable from the responsibility for
sharing the costs of government.” Ibid. “A tax measured
by the net income of residents is an equitable method of
distributing the burdens of government among those who
are privileged to enjoy its benefits.” New York ex rel. Cohn
v. Graves, 300 U.S. 308, 313 (1937).
More is given to the residents of a State than to those
who reside elsewhere, therefore more may be demanded of
Cite as: 575 U. S. ____ (2015) 3
GINSBURG, J., dissenting
them. With this Court’s approbation, States have long
favored their residents over nonresidents in the provision
of local services. See Reeves, Inc. v. Stake, 447 U.S. 429,
442 (1980) (such favoritism does not violate the Commerce
Clause). See also Martinez v. Bynum, 461 U.S. 321 (1983)
(upholding residency requirements for free primary and
secondary schooling). The cost of services residents enjoy
is substantial. According to the State’s Comptroller, for
example, in 2012 Maryland and its local governments
spent over $11 billion to fund public schools, $4 billion for
state health programs, and $1.1 billion for the State’s food
supplemental program—all programs available to resi-
dents only. Brief for Petitioner 20–23. See also Brief for
United States as Amicus Curiae 18 (Howard County—
where the Wynnes lived in 2006—budgeted more than
$903 million for education in fiscal year 2014). Excluding
nonresidents from these services, this Court has observed,
is rational for it is residents “who fund the state treasury
and whom the State was created to serve.” Reeves, 447
U.S., at 442. A taxpayer’s home State, then, can hardly
be faulted for making support of local government activi-
ties an obligation of every resident, regardless of any
obligations residents may have to other States.1
Residents, moreover, possess political means, not shared
by outsiders, to ensure that the power to tax their income
is not abused. “It is not,” this Court has observed, “a
purpose of the Commerce Clause to protect state residents
from their own state taxes.” Goldberg v. Sweet, 488 U.S.
252, 266 (1989). The reason is evident. Residents are
——————
1 The Court offers no response to this reason for permitting a State to
tax its residents’ worldwide income, other than to urge that Commerce
Clause doctrine ought not favor corporations over individuals. See
ante, at 10–11. I scarcely disagree with that proposition (nor does this
opinion suggest otherwise). But I fail to see how it answers, or is even
relevant to, my observation that affording residents greater benefits
entitles a State to require that they bear a greater tax burden.
4 COMPTROLLER OF TREASURY OF MD. v. WYNNE
GINSBURG, J., dissenting
“insider[s] who presumably [are] able to complain about
and change the tax through the [State’s] political process.”
Ibid. Nonresidents, by contrast, are not similarly posi-
tioned to “effec[t] legislative change.” Ibid. As Chief
Justice Marshall, developer of the Court’s Commerce
Clause jurisprudence, reasoned: “In imposing a tax the
legislature acts upon its constituents. This is in general a
sufficient security against erroneous and oppressive taxa-
tion.” McCulloch v. Maryland, 4 Wheat. 316, 428 (1819).
The “people of a State” can thus “res[t] confidently on the
interest of the legislator, and on the influence of the con-
stituents over their representative, to guard them against
. . . abuse” of the “right of taxing themselves and their
property.” Ibid.2
I hardly maintain, as the majority insistently asserts I
do, that “the Commerce Clause places no constraint on a
State’s power to tax” its residents. Ante, at 13. See also
ante, at 11–15. This Court has not shied away from strik-
ing down or closely scrutinizing state efforts to tax resi-
dents at a higher rate for out-of-state activities than for in-
state activities (or to exempt from taxation only in-state
activities). See, e.g., Department of Revenue of Ky. v.
Davis, 553 U.S. 328, 336 (2008); Camps Newfound/
Owatonna, Inc. v. Town of Harrison, 520 U.S. 564
——————
2 The majority dismisses what we said in Goldberg v. Sweet, 488 U.S.
252 (1989), as “dictum” allegedly “repudiated” by the Court in West
Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 203 (1994). Ante, at 11–
12. That is doubly wrong. In Goldberg, we distinguished the tax struck
down in American Trucking Assns., Inc. v. Scheiner, 483 U.S. 266
(1987) (ATA I), noting, in particular, that the tax in ATA I fell on “out-
of-state[rs]” whereas the tax in Goldberg fell on “the insider who
presumably is able to complain about and change the tax through the
Illinois political process.” 488 U.S., at 266. Essential to our holding,
this rationale cannot be written off as “dictum.” As for West Lynn
Creamery, far from “repudiat[ing]” Goldberg, the Court cited Goldberg
and reaffirmed its political safeguards rationale, as explained below.
See infra this page and 5.
Cite as: 575 U. S. ____ (2015) 5
GINSBURG, J., dissenting
(1997); Fulton Corp. v. Faulkner, 516 U.S. 325 (1996);
Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 272 (1984).
See also ante, at 11, and n. 3, 14–15 (mistakenly charging
that under my analysis “all of these cases would be thrown
into doubt”). “[P]olitical processes” are ill equipped to
guard against such facially discriminatory taxes because
the effect of a tax of this sort is to “mollif[y]” some of the
“in-state interests [that] would otherwise lobby against” it.
West Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 200
(1994). By contrast, the Court has generally upheld “even-
handed tax[es] . . . in spite of any adverse effects on
interstate commerce, in part because ‘[t]he existence of
major in-state interests adversely affected . . . is a power-
ful safeguard against legislative abuse.’ ” Ibid. (citing,
inter alia, Goldberg, 488 U.S., at 266). That justification
applies with full force to the “evenhanded tax” challenged
here, which taxes residents’ income at the same rate
whether earned in-state or out-of-state.3
These rationales for a State taxing its residents’ world-
wide income are not diminished by another State’s inde-
pendent interest in “requiring contributions from [nonres-
idents] who realize current pecuniary benefits under the
protection of the [State’s] government.” Shaffer v. Carter,
252 U.S. 37, 51 (1920). A taxpayer living in one State and
working in another gains protection and benefits from
both—and so can be called upon to share in the costs of
——————
3 Given the pedigree of this rationale, applying it here would hardly
“work a sea change in our Commerce Clause jurisprudence.” Ante, at
14. See United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste
Management Authority, 550 U.S. 330, 345, n. 7 (2007); Goldberg, 488
U.S., at 266; Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456,
473, n. 17 (1981); Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429,
444, n. 18 (1978); South Carolina Highway Dept. v. Barnwell Brothers,
Inc., 303 U.S. 177, 187 (1938). Nor would applying the rationale to a
net income tax cast “doubt” on the Court’s gross receipts precedents,
ante, at 14–15, given the Court’s longstanding practice of evaluating
income and gross receipt taxes differently, see infra, at 12–14.
6 COMPTROLLER OF TREASURY OF MD. v. WYNNE
GINSBURG, J., dissenting
both States’ governments.
States deciding whether to tax residents’ entire world-
wide income must choose between legitimate but compet-
ing tax policy objectives. A State might prioritize obtain-
ing equal contributions from those who benefit from the
State’s protection in roughly similar ways. Or a State
might prioritize ensuring that its taxpayers are not sub-
ject to double taxation. A State cannot, however, accom-
plish both objectives at once.
To illustrate, consider the Wynnes. Under the tax
scheme in place in 2006, other Howard County residents
who earned their income in-state but who otherwise had
the same tax profile as the Wynnes (e.g., $2.67 million in
taxable net income) owed the same amount of taxes to
Maryland as the Wynnes. See App. to Pet. for Cert. A–56.
The scheme thus ensured that all residents with similar
access to the State’s protection and benefits and similar
ability to pay made equal contributions to the State to
defray the costs of those benefits. Maryland could not
achieve that objective, however, without exposing the
Wynnes to a risk of double taxation. Conversely, the
Court prioritizes reducing the risk that the Wynnes’ in-
come will be taxed twice by two different States. But that
choice comes at a cost: The Wynnes enjoyed equal access
to the State’s services but will have paid $25,000 less to
cover the costs of those services than similarly situated
neighbors who earned their income entirely within the
State. See Pet. for Cert. 15.
States confront the same trade-off when deciding
whether to tax nonresidents’ entire in-state income. A
State can require all residents and nonresidents who work
within the State under its protection to contribute equally
to the cost of that protection. Or the State can seek to
avoid exposing its workers to any risk of double taxation.
But it cannot achieve both objectives.
For at least a century, responsibility for striking the
Cite as: 575 U. S. ____ (2015) 7
GINSBURG, J., dissenting
right balance between these two policy objectives has
belonged to the States (and Congress), not this Court.
Some States have chosen the same balance the Court
embraces today. See ante, at 17. But since almost the
dawn of the modern era of state income taxation, other
States have taken the same approach as Maryland does
now, taxing residents’ entire income, wherever earned,
while at the same time taxing nonresidents’ entire in-state
income. And recognizing that “[p]rotection, benefit, and
power over [a taxpayer’s income] are not confined to ei-
ther” the State of residence or the State in which income is
earned, this Court has long afforded States that flexibility.
Curry v. McCanless, 307 U.S. 357, 368 (1939). This history
of States imposing and this Court upholding income tax
schemes materially identical to the one the Court con-
fronts here should be the beginning and end of this case.
The modern era of state income taxation dates from a
Wisconsin tax enacted in 1911. See 1911 Wis. Laws ch.
658; R. Blakey, State Income Taxation 1 (1930). From
close to the start of this modern era, States have taxed
residents and nonresidents in ways materially indistin-
guishable from the way Maryland does now. In 1915, for
example, Oklahoma began taxing residents’ “entire net
income . . . arising or accruing from all sources,” while at
the same time taxing nonresidents’ “entire net income
from [sources] in th[e] State.” 1915 Okla. Sess. Laws
ch. 164, §1, pp. 232–233 (emphasis added). Like Maryland
today, Oklahoma provided no credit to either residents or
nonresidents for taxes paid elsewhere. See id., ch. 164, §1
et seq., at 232–237. In 1917, neighboring Missouri adopted
a similar scheme: Residents owed taxes on their “entire
net income . . . from all sources” and nonresidents owed
taxes on their “entire net income . . . from all sources
within th[e] state.” 1917 Mo. Laws §1(a), pp. 524–525
(emphasis added). Missouri too provided neither residents
nor nonresidents a credit for taxes paid to other jurisdic-
8 COMPTROLLER OF TREASURY OF MD. v. WYNNE
GINSBURG, J., dissenting
tions. See id., §1 et seq., at 524–538. Thus, much like
Maryland today, these early income tax adopters simulta-
neously taxed residents on all income, wherever earned,
and nonresidents on all income earned within the State.4
Almost immediately, this Court began issuing what
became a long series of decisions, repeatedly upholding
States’ authority to tax both residents’ worldwide income
and nonresidents’ in-state income. E.g., Maguire v. Trefry,
253 U.S. 12, 17 (1920) (resident income tax); Shaffer, 252
U.S., at 52–53, 57 (nonresident income tax). See also
State Tax Comm’n of Utah v. Aldrich, 316 U.S. 174, 178
(1942); Curry, 307 U.S., at 368; Guaranty Trust Co. v.
Virginia, 305 U.S. 19, 23 (1938); Graves, 300 U.S., at 313;
Lawrence, 286 U.S., at 281. By the end of the 20th cen-
tury, it was “a well-established principle of interstate and
international taxation” that “sovereigns have authority to
tax all income of their residents, including income earned
outside their borders,” Chickasaw Nation, 515 U.S., at
462, 463, n. 12, and that sovereigns generally may also tax
nonresidents on “income earned within the [sovereign’s]
jurisdiction,” id., at 463, n. 11.
Far from suggesting that States must choose between
taxing residents or nonresidents, this Court specifically
affirmed that the exact same “income may be taxed [si-
multaneously] both by the state where it is earned and by
the state of the recipient’s domicile.” Curry, 307 U. S., at
——————
4 Unlike Maryland’s county income tax, these early 20th-century
income taxes allowed a deduction for taxes paid to other jurisdictions.
Compare App. 18 with 1917 Mo. Laws §5, pp. 526–527, and 1915 Okla.
Sess. Laws §6, p. 234. The Wynnes have not argued and the majority
does not suggest, however, that Maryland could fully cure the asserted
defects in its tax “scheme” simply by providing a deduction, in lieu of a
tax credit. And I doubt that such a deduction would give the Wynnes
much satisfaction: Deducting taxes paid to other States from the
Wynnes’ $2.67 million taxable net income would reduce their Maryland
tax burden by a small fraction of the $25,000 tax credit the majority
awards them. See Pet. for Cert. 15; App. to Pet. for Cert. A–56.
Cite as: 575 U. S. ____ (2015) 9
GINSBURG, J., dissenting
368 (emphasis added). See also Aldrich, 316 U.S., at 176–
178, 181 (rejecting “a rule of immunity from taxation by
more than one state,” including with respect to income
taxation (internal quotation marks omitted)). In Law-
rence, for example, this Court dealt with a Mississippi tax
“scheme” with the same structure Maryland has today:
Mississippi taxed residents on all income, wherever
earned, and nonresidents on income earned within the
State, without providing either set of taxpayers a credit
for taxes paid elsewhere. See 286 U.S., at 278–279; Miss.
Code Ann. §5033(a), (b)(9) (1930). Lawrence upheld a
Mississippi tax on net income earned by one of its resi-
dents on the construction of public highways in Tennessee.
See 286 U.S., at 279–281. The Court did so fully aware
that both Mississippi and Tennessee were effectively
imposing “an income tax upon the same occupation.”
Reply Brief in Lawrence v. State Tax Comm’n of Miss.,
O. T. 1931, No. 580, p. 32. See also Curry, 307 U.S., at
363, n. 1, 368 (discussing Lawrence).
Likewise, in Guaranty Trust, both New York and Vir-
ginia had taxed income of a New York trust that had been
distributed to a Virginia resident. 305 U.S., at 21–22.
The resident sought to block Virginia’s tax in order to
avoid “double taxation” of the “identical income.” Id., at
22. Rejecting that challenge, the Court once again reiter-
ated that “two States” may simultaneously tax the “same
income.” Ibid.
The majority deems these cases irrelevant because they
involved challenges brought under the Due Process
Clause, not the Commerce Clause. See ante, at 12–15.
These cases are significant, however, not because the
constraints imposed by the two Clauses are identical.
Obviously, they are not. See Quill Corp., 504 U.S., at 305.
What the sheer volume and consistency of this precedent
confirms, rather, is the degree to which this Court has—
until now—endorsed the “well-established principle of
10 COMPTROLLER OF TREASURY OF MD. v. WYNNE
GINSBURG, J., dissenting
interstate and international taxation” that a State may
tax its residents’ worldwide income, without restriction
arising from the source-based taxes imposed by other
States and regardless of whether the State also chooses to
impose source-based taxes of its own. Chickasaw Nation,
515 U.S., at 462.5
In any event, it is incorrect that support for this princi-
ple is limited to the Court’s Due Process Clause cases. In
Shaffer, for example, this Court rejected both a Due Pro-
cess Clause challenge and a dormant Commerce Clause
challenge to an income tax “scheme” (the Oklahoma stat-
ute described above) with the very features the majority
latches onto today: Oklahoma taxed residents on all
worldwide income and nonresidents on all in-state income,
without providing a credit for taxes paid elsewhere to
either residents or nonresidents. 252 U.S., at 52–53 (Due
Process challenge); id., at 57 (dormant Commerce Clause
challenge). See also supra, at 7. The specific tax chal-
lenged in Shaffer—a tax on a nonresident’s in-state in-
come—exposed taxpayers to the same risk of double taxa-
tion as the Maryland tax challenged in this case. The
majority labors mightily to distinguish Shaffer, but it does
not dispute the one thing that ought to give it pause:
Today’s decision overrules Shaffer’s dormant Commerce
Clause holding. See ante, at 15–16. I would not discard
our precedents so lightly. Just as the tax in Shaffer en-
countered no constitutional shoals, so Maryland’s scheme
should survive the Court’s inspection.
——————
5 Upholding Maryland’s facially neutral tax hardly means, as the
majority contends, ante, at 12, that the dormant Commerce Clause
places no limits on States’ authority to tax residents’ worldwide income.
There are, for example, no well-established principles of interstate and
international taxation permitting the kind of facially discriminatory tax
the majority “[i]magine[s]” a State enacting. Ibid. Nor are the political
processes noted above an adequate safeguard against such a tax. See
supra, at 3–5.
Cite as: 575 U. S. ____ (2015) 11
GINSBURG, J., dissenting
This Court’s decision in West Publishing Co. v.
McColgan, 328 U.S. 823 (1946), reinforces that conclu-
sion. In West Publishing, the Court summarily affirmed a
decision of the California Supreme Court that denied a
dormant Commerce Clause challenge based on the princi-
ples today’s majority disrespects:
“[T]here [is no] merit to the contention that [Califor-
nia’s tax] discriminates against interstate commerce
on the ground that it subjects part of plaintiff ’s in-
come to double taxation, given the taxability of plain-
tiff ’s entire net income in the state of its domicile.
Taxation in one state is not an immunization against
taxation in other states. Taxation by states in which
a corporation carries on business activities is justified
by the advantages that attend the pursuit of such ac-
tivities. Income may be taxed both by the state where
it is earned and by the state of the recipient’s domi-
cile. Protection, benefit and power over the subject
matter are not confined to either state.” 27 Cal. 2d
705, 710–711, 166 P.2d 861, 864 (1946) (citations and
internal quotation marks omitted).
In treating the matter summarily, the Court rejected an
argument strikingly similar to the one the majority now
embraces: that California’s tax violated the dormant
Commerce Clause because it subjected “interstate com-
merce . . . to the risk of a double tax burden.” Brief for
Appellant Opposing Motion to Dismiss or Affirm in West
Publishing Co. v. McColgan, O. T. 1945, No. 1255, pp. 20–
21 (quoting J. D. Adams Mfg. Co. v. Storen, 304 U.S. 307,
311 (1938)).
The long history just recounted counsels in favor of
respecting States’ authority to tax without discount its
residents’ worldwide income. As Justice Holmes stated
over a century ago, in regard to a “mode of taxation . . . of
long standing, . . . the fact that the system has been in
12 COMPTROLLER OF TREASURY OF MD. v. WYNNE
GINSBURG, J., dissenting
force for a very long time is of itself a strong reason . . . for
leaving any improvement that may be desired to the legis-
lature.” Paddell v. City of New York, 211 U.S. 446, 448
(1908). Only recently, this Court followed that sound
advice in resisting a dormant Commerce Clause challenge
to a taxing practice with a pedigree as enduring as the
practice in this case. See Department of Revenue of Ky. v.
Davis, 553 U.S. 328, 356–357 (2008) (quoting Padell, 211
U.S., at 448). Surely that advice merits application here,
where the challenged tax draws support from both histori-
cal practice and numerous decisions of this Court.
The majority rejects Justice Holmes’ counsel, observing
that most States, over time, have chosen not to exercise
plenary authority to tax residents’ worldwide income. See
ante, at 17–18. The Court, however, learns the wrong
lesson from the “independent policy decision[s]” States
have made. Chickasaw, 515 U.S., at 463, n. 12 (emphasis
added; internal quotation marks omitted). This history
demonstrates not that States “doub[t]” their “constitu-
tiona[l]” authority to tax residents’ income, wherever
earned, as the majority speculates, ante, at 18, but that
the very political processes the Court disregards as “fanci-
ful,” ante, at 12, have in fact worked to produce policies
the Court ranks as responsible—all the more reason to
resist this Court’s heavy-handed supervision.
The Court also attempts to deflect the force of this his-
tory and precedent by relying on a “trilogy” of decisions it
finds “particularly instructive.” Ante, at 6–7 (citing Cen-
tral Greyhound Lines, Inc. v. Mealey, 334 U.S. 653 (1948);
Gwin, White & Prince, Inc. v. Henneford, 305 U.S. 434
(1939); J. D. Adams Mfg., 304 U.S. 307). As the majority
acknowledges, however, those three decisions involved
gross receipts taxes, not income taxes. Ante, at 7–9. True,
this Court has recently pointed to similarities between
these two forms of taxation. See ante, at 9. But it is an
indulgence in wishful thinking to say that this Court has
Cite as: 575 U. S. ____ (2015) 13
GINSBURG, J., dissenting
previously “rejected the argument that the Commerce
Clause distinguishes between” these taxes. Ante, at 9.
For decades—including the years when the majority’s
“trilogy” was decided—the Court has routinely maintained
that “the difference between taxes on net income and taxes
on gross receipts from interstate commerce warrants
different results” under the Commerce Clause. C. Trost &
P. Hartman, Federal Limitations on State and Local Taxa-
tion 2d §10:1 (2003).
In Shaffer, for example, the Court rejected the taxpay-
er’s dormant Commerce Clause challenge because “the tax
[was] imposed not upon gross receipts . . . but only upon
the net proceeds.” 252 U.S., at 57. Just three years
before deciding J. D. Adams, the Court emphasized “mani-
fest and substantial” differences between the two types of
taxes, calling the burden imposed by a gross receipts tax
“direct and immediate,” in contrast to the “indirect and
incidental” burden imposed by an income tax. Stewart
Dry Goods Co. v. Lewis, 294 U.S. 550, 558 (1935) (quoting
United States Glue Co. v. Town of Oak Creek, 247 U.S.
321, 328 (1918)). And the Gwin, White opinion observed
that invalidating the gross receipts tax at issue “left to the
states wide scope for taxation of those engaged in inter-
state commerce, extending to . . . net income derived from
it.” 305 U.S., at 441 (emphasis added).
The majority asserts that this Court “rejected” this
distinction in Moorman Mfg. See ante, at 9. That decision
in fact described gross receipts taxes as “more burden-
some” than income taxes—twice. 437 U.S., at 280, 281.
In particular, Moorman upheld a state income tax because
an earlier decision had upheld a similar but “inherently
more burdensome” gross receipts tax. Id., at 281. To say
that the constitutionality of an income tax follows
a fortiori from the constitutionality of a similar but “more
burdensome” gross receipts tax is to affirm, not reject, a
distinction between the two.
14 COMPTROLLER OF TREASURY OF MD. v. WYNNE
GINSBURG, J., dissenting
The Justices participating in the Court’s “trilogy,” in
short, would scarcely expect to see the three decisions
invoked to invalidate a tax on net income.
II
Abandoning principles and precedent sustaining simul-
taneous residence- and source-based income taxation, the
Court offers two reasons for striking down Maryland’s
county income tax: (1) the tax creates a risk of double
taxation, ante, at 7, 18; and (2) the Court deems Mary-
land’s income tax “scheme” “inherently discriminatory”—
by which the Court means, the scheme fails the so-called
“internal consistency” test, ante, at 21–22. The first objec-
tion is overwhelmed by the history, recounted above, of
States imposing and this Court upholding income taxes
that carried a similar risk of double taxation. See supra,
at 6–12. The Court’s reliance on the internal consistency
test is no more compelling.
This Court has not rigidly required States to maintain
internally consistent tax regimes. Before today, for two
decades, the Court has not insisted that a tax under re-
view pass the internal consistency test, see Oklahoma Tax
Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 185 (1995),
and has not struck down a state tax for failing the test in
nearly 30 years, see American Trucking Assns., Inc. v.
Scheiner, 483 U.S. 266, 284–287 (1987) (ATA I); Tyler
Pipe Industries, Inc. v. Washington State Dept. of Revenue,
483 U.S. 232, 247–248 (1987). Moreover, the Court has
rejected challenges to taxes that flunk the test. The Okla-
homa tax “scheme” upheld under the dormant Commerce
Clause in Shaffer, for example, is materially indistin-
guishable from—therefore as internally inconsistent as—
Maryland’s scheme. 252 U.S., at 57. And more recently,
in American Trucking Assns., Inc. v. Michigan Pub. Serv.
Comm’n, the Court upheld a “concede[dly]” internally
inconsistent state tax. 545 U.S. 429, 438 (2005) (ATA II).
Cite as: 575 U. S. ____ (2015) 15
GINSBURG, J., dissenting
The Court did so, satisfied that there was a sufficiently
close connection between the tax at issue and the local
conduct that triggered the tax. See ibid.6
The logic of ATA II, counsel for the Wynnes appeared to
recognize, see Tr. of Oral Arg. 46–47, would permit a State
to impose a head tax—i.e., a flat charge imposed on every
resident in the State—even if that tax were part of an
internally inconsistent tax scheme. Such a tax would rest
on purely local conduct: the taxpayer’s residence in the
taxing State. And the taxes paid would defray costs
closely connected to that local conduct—the services used
by the taxpayer while living in the State.
I see no reason why the Constitution requires us to
disarm States from using a progressive tax, rather than a
flat toll, to cover the costs of local services all residents
enjoy. A head tax and a residence-based income tax differ,
do they not, only in that the latter is measured by each
taxpayer’s ability to pay. Like the head tax, however, a
residence-based income tax is triggered by the purely local
conduct of residing in the State. And also like the head
tax, a residence-based income tax covers costs closely
——————
6 The majority reads American Trucking Assns., Inc. v. Michigan Pub.
Serv. Comm’n, 545 U.S. 429 (2005) (ATA II), in a way so implausible, it
must resort to quoting from an amicus brief, rather than from the
Court’s opinion. According to the majority, this Court did not think the
challenged tax failed the internal consistency test in ATA II, it held
only that the challengers had failed to make the necessary “empirical
showing.” See ante, at 20–21, n. 7. It is true that the United States
made that argument. See Brief for United States as Amicus Curiae in
ATA II, O. T. 2004, No. 03–1230, p. 26. But one searches the U. S.
Reports in vain for any indication that the Court adopted it. Which is
hardly surprising, for one would scarcely think that a test turning on
“hypothetically” assessing a tax’s “structure,” ante, at 19 (emphasis
added), would require empirical data. What the Court in fact said in
ATA II, is that the tax’s internal inconsistency would be excused be-
cause any multiple taxation resulting from every State adopting the
challenged tax would be caused by interstate firms’ choosing to “en-
gag[e] in local business in all those States.” 545 U.S., at 438.
16 COMPTROLLER OF TREASURY OF MD. v. WYNNE
GINSBURG, J., dissenting
connected to that residence: It finances services used by
those living in the State. If a head tax qualifies for ATA
II’s reprieve from internal consistency, then so too must a
residence-based income tax.
The majority asserts that because Maryland’s tax
scheme is internally inconsistent, it “operates as a tariff,”
making it “ ‘patently unconstitutional.’ ” Ante, at 22. This
is a curious claim. The defining characteristic of a tariff is
that it taxes interstate activity at a higher rate than it
taxes the same activity conducted within the State. See
West Lynn Creamery, 512 U.S., at 193. Maryland’s resi-
dent income tax does the exact opposite: It taxes the in-
come of its residents at precisely the same rate, whether
the income is earned in-state or out-of-state.7
There is, moreover, a deep flaw in the Court’s chosen
test. The Court characterizes internal consistency as a
“cure,” ante, at 18, 25–26, but the test is scarcely that, at
least for the double taxation the Court believes to justify
its intervention. According to the Court, Maryland’s tax
“scheme” is internally inconsistent because Maryland
simultaneously imposes two taxes: the county income tax
and the special nonresident tax. See ante, at 7, 21–22, and
n. 8. But only one of these taxes—the county income tax—
actually falls on the Wynnes. Because it is the interaction
between these two taxes that renders Maryland’s tax
scheme internally inconsistent, Maryland could eliminate
the inconsistency by terminating the special nonresident
tax—a measure that would not help the Wynnes at all.8
Maryland could, in other words, bring itself into compli-
ance with the test at the heart of the Court’s analysis
without removing the double tax burden the test is pur-
——————
7 The majority faults the dissents for not “disput[ing]” its “economic
analysis,” but beyond citation to a pair of amicus briefs, its opinion
offers no analysis to dispute. Ante, at 22.
8 Or Maryland could provide nonresidents a credit for taxes paid to
other jurisdictions on Maryland source income. Cf. ante, at 25–26.
Cite as: 575 U. S. ____ (2015) 17
GINSBURG, J., dissenting
portedly designed to “cure.”
To illustrate this oddity, consider the Court’s “simple
example” of April (who lives and works in State A) and
Bob (who lives in State A, but works in State B). Ante, at
21–22, 25. Both States fail the internal consistency test
because they impose (1) a 1.25% tax on income that resi-
dents earn in-state, (2) a 1.25% tax on income that resi-
dents earn in other jurisdictions, and (3) a 1.25% tax on
income that nonresidents earn in-state. According to the
Court, these tax schemes are troubling because “Bob will
pay more income tax than April solely because he earns
income interstate.” Ante, at 22.
Each State, however, need not pursue the same ap-
proach to make their tax schemes internally consistent.9
See ante, at 25–26. State A might choose to tax residents’
worldwide income only, which it could do by eliminating
tax #3 (on nonresidents’ in-state income). State B might
instead choose exclusively to tax income earned within the
State by deleting tax #2 (on residents’ out-of-state income).
Each State’s tax scheme would then be internally con-
sistent. But the tax burden on April and Bob would re-
main unchanged: Just as under the original schemes,
April would have to pay a 1.25% tax only once, to State A,
and Bob would have to pay a 1.25% tax twice: once to
State A, where he resides, and once to State B, where he
earns the income. The Court’s “cure,” in other words, is no
match for the perceived disease.10
——————
9 I do not “clai[m]” as the Court groundlessly suggests, that the
Court’s analysis “establish[es] . . . [a] rule of priority” between resi-
dence- and source-based taxation. Ante, at 25–26. My objection,
rather, is that the Court treats source-based authority as “box[ing] in” a
State’s discrete authority to tax on the basis of residence. Supra, at 1.
There is no “inconsisten[cy]” in my analysis, and the majority plainly
errs in insisting that there is. Ante, at 25.
10 Attempting to preserve the test’s qualification as a “cure,” the
Court redefines the illness as not just double taxation but double
taxation caused by an “inherently discriminat[ory]” tax “scheme.” Ante,
18 COMPTROLLER OF TREASURY OF MD. v. WYNNE
GINSBURG, J., dissenting
The Court asserts that this flaw is just a “truism” of
every discrimination case, whether brought under the
dormant Commerce Clause or the Equal Protection
Clause. Ante, at 26. That is simply incorrect. As the
Court acknowledges, a government that impermissibly
“treats like cases differently” (i.e., discriminates) can
ordinarily cure the violation either by “leveling up” or
“leveling down.” Ibid. (internal quotation marks omitted).
Consider another April and Bob example. If Bob must pay
a 10% tax and April must pay a 5% tax, that discrimina-
tion can be eliminated either by requiring both to pay the
10% tax (“leveling up”) or by requiring both to pay the 5%
tax (“leveling down”). True, “leveling up” leaves Bob’s tax
bill unchanged. “Leveling up” nonetheless benefits Bob
because it eliminates the unfairness of being treated
differently. And if, as is often true in dormant Commerce
Clause cases, April and Bob compete in the same market,
then “leveling up” provides the concrete benefit of placing
a new burden on Bob’s competitors.
The majority’s rule does not work this way. As just
explained, Maryland can “cure” what the majority deems
discrimination without lowering the Wynnes’ taxes or
increasing the tax burden on any of the Wynnes’ neigh-
bors—by terminating the special nonresident tax. See
supra, at 16–17. The State can, in other words, satisfy the
majority not by lowering Bob’s taxes or by raising April’s
taxes, but by eliminating the taxes imposed on yet a third
——————
at 19–20. Relying on such a distinction to justify the test is entirely
circular, however, as the Court defines “inherent discrimination” in this
case as internal inconsistency. In any event, given the concern that
purportedly drives the Court’s analysis, it is mystifying why the Court
sees “virtue” in striking down only one of the two schemes under which
Bob is taxed twice. Ante, at 19. Whatever disincentive the original
scheme creates for Bob (or the Wynnes) to work in interstate commerce
is created just as much by the revised scheme that the Court finds
satisfactory.
Cite as: 575 U. S. ____ (2015) 19
GINSBURG, J., dissenting
taxpayer (say, Cathy). The Court’s internal consis-
tency test thus scarcely resembles “ordinary” anti-
discrimination law. Whatever virtue the internal con-
sistency test has in other contexts, this shortcoming
makes it a poor excuse for jettisoning taxation principles
as entrenched as those here.
* * *
This case is, at bottom, about policy choices: Should
States prioritize ensuring that all who live or work within
the State shoulder their fair share of the costs of govern-
ment? Or must States prioritize avoidance of double
taxation? As I have demonstrated, supra, at 16–19,
achieving even the latter goal is beyond this Court’s com-
petence. Resolving the competing tax policy considera-
tions this case implicates is something the Court is even
less well equipped to do. For a century, we have recog-
nized that state legislatures and the Congress are consti-
tutionally assigned and institutionally better equipped to
balance such issues. I would reverse, so that we may
leave that task where it belongs. | “I continue to adhere to my view that the negative Commerce Clause has no basis in the text of the Constitu- tion, makes little sense, and has proved virtually unwork- able in application, and, consequently, cannot serve as a basis for striking down a state statute.” McBurney v. Young, 569 U. S. (2013) (THOMAS, J., concurring) (slip op., ) (internal quotation marks and alteration omitted); accord, e.g., Camps Newfound/Owatonna, Inc. v. Town of Harrison, (THOMAS, J., dissenting). For that reason, I would uphold Maryland’s tax In reaching the contrary conclusion, the Court proves just how far our negative Commerce Clause jurisprudence has departed from the actual Commerce Clause. Accord- ing to the majority, a state income tax that fails to provide residents with “a full credit against the income taxes that they pay to other States” violates the Commerce Clause. Ante, That news would have come as a surprise to those who penned and ratified the Constitution. As this Court observed some time ago, “Income taxes were imposed by several of the States at or shortly after the adoption of the Federal Constitution.” 2 COMPTROLLER OF TREASURY OF* There is no indication that those early state income tax schemes provided credits for income taxes paid elsewhere. Thus, under the majority’s reason- ing, all of those state laws would have contravened the newly ratified Commerce Clause. It seems highly implausible that those who ratified the Commerce Clause understood it to conflict with the in- come tax laws of their States and nonetheless adopted it without a word of concern. That silence is particularly deafening given the importance of such taxes for raising revenues at the time. See Kinsman, The Income Tax in the Commonwealths of the United States 7, in 4 Publica- tions of the American Economic Assn. (1903) (noting, for example, that “Connecticut from her earliest history had followed the plan of taxing incomes rather than property” and that “[t]he total assessed value of [taxable] incomes in Connecticut in the year 95 was a little over $300,000” ). In other areas of constitutional analysis, we would have considered these laws to be powerful evidence of the origi- nal understanding of the Constitution. We have, for ex- —————— * See, e.g., 77–78 Mass. Acts ch. 13, p. 756 (taxing “the amount of [inhabitants’] income from any profession, faculty, handi- craft, trade or employment; and on the amount of all incomes and profits gained by trading by sea and on shore”); 81 Pa. Laws ch. 961, p. 390 (providing that “[a]ll offices and posts of profit, trades, occupations and professions (that of ministers of the gospel of all denominations and schoolmasters only excepted), shall be rated at the discretion of the township, ward or district assessors having due regard of the profits arising from them”); see Report of Oliver Wolcott, Jr., Secretary of the Treasury, to 4th Cong., 2d Sess., concern- ing Direct Taxes (96), in 1 American State Papers, Finance 414, 4 (1832) (describing Connecticut’s income tax as assessing, as relevant, “the estimated gains or profits arising from any, and all, lucrative professions, trades, and occupations”); (noting that, in Delaware, “[t]axes have been hitherto collected on the estimated annual income of the inhabitants of this State, without reference to specific objects”). Cite as: 575 U. S. (2015) 3 THOMAS, J., dissenting ample, relied on the practices of the First Congress to guide our interpretation of provisions defining congres- sional power. See, e.g., Golan v. Holder, 565 U. S. (2012) (slip op., 6) (Copyright Clause); McCulloch v. Maryland, (Necessary and Proper Clause). We have likewise treated “actions taken by the First Congress a[s] presumptively consistent with the Bill of Rights,” Town of v. Galloway, 572 U. S. (2014) (ALITO, J., concurring) (slip op., 2). See, e.g., at – (majority opinion) (slip op., – 8); And we have looked to founding-era state laws to guide our understanding of the Constitution’s meaning. See, e.g., District of 600–602 (Second Amendment); Atwater v. Lago Vista, 532 U.S. 318, 337–340 (1) (Fourth Amendment); Roth v. United States, (First Amendment); U.S. 168, 202– (1881) (Speech and Debate Clause); see Calder v. Bull, (Ex Post Facto Clause). Even if one assumed that the negative Commerce Clause existed, I see no reason why it would be subject to a different mode of constitutional interpretation. The majority quibbles that I fail to “sho[w] that the small number of individuals who earned income out of State were taxed twice on that income,” ante, at 28, but given the deference we owe to the duly enacted laws of a State— particularly those concerning the paradigmatically sover- eign activity of taxation—the burden of proof falls on those who would wield the Federal Constitution to foreclose that exercise of sovereign power. I am doubtful that the majority’s application of one of our many negative Commerce Clause tests is correct under our precedents, see ante, at 5–7 (SCALIA, J., dissent- ing); post, 0–19 (GINSBURG, J., dissenting), but I am 4 COMPTROLLER OF TREASURY OF certain that the majority’s result is incorrect under our Constitution. As was well said in another area of constitu- tional law: “[I]f there is any inconsistency between [our] tests and the historic practice the inconsistency calls into question the validity of the test, not the historic prac- tice.” Town of at (ALITO, J., concurring) (slip op., 2). I respectfully dissent. Cite as: 575 U. S. (2015) 1 GINSBURG, J., dissenting SUPREME COURT OF THE UNITED STATES No. 13–485 COMPTROLLER OF THE TREASURY OF MARYLAND, PETITIONER v. BRIAN WYNNE ET UX. ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF MARYLAND [May 18, 2015] JUSTICE GINSBURG, with whom JUSTICE SCALIA and JUSTICE KAGAN join, dissenting. Today’s decision veers from a principle of interstate and international taxation repeatedly acknowledged by this Court: A nation or State “may tax all the income of its residents, even income earned outside the taxing jurisdic- tion.” Oklahoma Tax Comm’n v. 5 U.S. 450, 462–463 In accord with this principle, the Court has regularly rejected claims that taxes on a resident’s out-of-state income violate the Due Process Clause for lack of a sufficient “connection” to the taxing State. Quill (1992) ; see, e.g., Law- (1932). But under dormant Commerce Clause jurispru- dence, the Court decides, a State is not really empowered to tax a resident’s income from whatever source derived. In taxing personal income, the Court holds, source-based authority, i.e., authority to tax commerce conducted within a State’s territory, boxes in the taxing authority of a tax- payer’s domicile. As I see it, nothing in the Constitution or in prior deci- sions of this Court dictates that one of two States, the domiciliary State or the source State, must recede simply because both have lawful tax regimes reaching the same 2 COMPTROLLER OF TREASURY OF MD. v. WYNNE GINSBURG, J., dissenting income. See Moorman Mfg. 277, n. 12 (1978) (finding no “discriminat[ion] against interstate commerce” where alleged taxation disparities were “the consequence of the combined effect” of two other- wise lawful income-tax schemes). True, Maryland elected to deny a credit for income taxes paid to other States in computing a resident’s county tax liability. It is equally true, however, that the other States that taxed the Wynnes’ income elected not to offer them a credit for their Maryland county income taxes. In this situation, the Constitution does not prefer one lawful basis for state taxation of a person’s income over the other. Nor does it require one State, in this case Maryland, to limit its residence-based taxation, should the State choose to exercise, to the full extent, its source-based authority. States often offer their residents credits for income taxes paid to other States, as Maryland does for state income tax purposes. States do so, however, as a matter of tax “policy,” 5 U.S., at 463, n. 12 (inter- nal quotation marks omitted), not because the Constitu- tion compels that course. I For at least a century, “domicile” has been recognized as a secure ground for taxation of residents’ worldwide in- come. “Enjoyment of the privileges of residence within [a] state, and the attendant right to invoke the protection of its laws,” this Court has explained, “are inseparable from the responsibility for sharing the costs of government.” “A tax measured by the net income of residents is an equitable method of distributing the burdens of government among those who are privileged to enjoy its benefits.” New York ex rel. Cohn v. More is given to the residents of a State than to those who reside elsewhere, therefore more may be demanded of Cite as: 575 U. S. (2015) 3 GINSBURG, J., dissenting them. With this Court’s approbation, States have long favored their residents over nonresidents in the provision of local services. See Reeves, 442 (1980) (such favoritism does not violate the Commerce Clause). See (upholding residency requirements for free primary and secondary schooling). The cost of services residents enjoy is substantial. According to the State’s Comptroller, for example, in 2012 Maryland and its local governments spent over $11 billion to fund public schools, $4 billion for state health programs, and $1.1 billion for the State’s food supplemental program—all programs available to resi- dents only. Brief for Petitioner 20–. See Brief for United States as Amicus Curiae 18 (Howard County— where the Wynnes lived in 6—budgeted more than $903 million for education in fiscal year 2014). Excluding nonresidents from these services, this Court has observed, is rational for it is residents “who fund the state treasury and whom the State was created to serve.” Reeves, 447 U.S., at 442. A taxpayer’s home State, then, can hardly be faulted for making support of local government activi- ties an obligation of every resident, regardless of any obligations residents may have to other States.1 Residents, moreover, possess political means, not shared by outsiders, to ensure that the power to tax their income is not abused. “It is not,” this Court has observed, “a purpose of the Commerce Clause to protect state residents from their own state taxes.” v. Sweet, 488 U.S. 252, 266 (1989). The reason is evident. Residents are —————— 1 The Court offers no response to this reason for permitting a State to tax its residents’ worldwide income, other than to urge that Commerce Clause doctrine ought not favor corporations over individuals. See ante, 0–11. I scarcely disagree with that proposition (nor does this opinion suggest otherwise). But I fail to see how it answers, or is even relevant to, my observation that affording residents greater benefits entitles a State to require that they bear a greater tax burden. 4 COMPTROLLER OF TREASURY OF MD. v. WYNNE GINSBURG, J., dissenting “insider[s] who presumably [are] able to complain about and change the tax through the [State’s] political process.” Nonresidents, by contrast, are not similarly posi- tioned to “effec[t] legislative change.” As Chief Justice Marshall, developer of the Court’s Commerce Clause jurisprudence, reasoned: “In imposing a tax the legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxa- tion.” The “people of a State” can thus “res[t] confidently on the interest of the legislator, and on the influence of the con- stituents over their representative, to guard them against abuse” of the “right of taxing themselves and their property.” 2 I hardly maintain, as the majority insistently asserts I do, that “the Commerce Clause places no constraint on a State’s power to tax” its residents. Ante, 3. See ante, 1–15. This Court has not shied away from strik- ing down or closely scrutinizing state efforts to tax resi- dents at a higher rate for out-of-state activities than for in- state activities (or to exempt from taxation only in-state activities). See, e.g., Department of Revenue of Ky. v. Davis, ; Camps Newfound/ Owatonna, —————— 2 The majority dismisses what we said in v. Sweet, 488 U.S. 252 (1989), as “dictum” allegedly “repudiated” by the Court in West Lynn 2 U.S. 186, Ante, 1– 12. That is doubly wrong. In we distinguished the tax struck down in American Trucking Assns., noting, in particular, that the tax in ATA I fell on “out- of-state[rs]” whereas the tax in fell on “the insider who presumably is able to complain about and change the tax through the Illinois political process.” Essential to our holding, this rationale cannot be written off as “dictum.” As for West Lynn far from “repudiat[ing]” the Court cited and reaffirmed its political safeguards rationale, as explained below. See infra this page and 5. Cite as: 575 U. S. (2015) 5 GINSBURG, J., dissenting ; Fulton 6 U.S. 325 ; Bacchus Imports, See ante, 1, and n. 3, 14–15 (mistakenly charging that under my analysis “all of these cases would be thrown into doubt”). “[P]olitical processes” are ill equipped to guard against such facially discriminatory taxes because the effect of a tax of this sort is to “mollif[y]” some of the “in-state interests [that] would otherwise lobby against” it. West Lynn 2 U.S. 186, By contrast, the Court has generally upheld “even- handed tax[es] in spite of any adverse effects on interstate commerce, in part because ‘[t]he existence of major in-state interests adversely affected is a power- ful safeguard against legislative abuse.’ ” (citing, inter alia, ). That justification applies with full force to the “evenhanded tax” challenged here, which taxes residents’ income at the same rate whether earned in-state or out-of-state.3 These rationales for a State taxing its residents’ world- wide income are not diminished by another State’s inde- pendent interest in “requiring contributions from [nonres- idents] who realize current pecuniary benefits under the protection of the [State’s] government.” A taxpayer living in one State and working in another gains protection and benefits from both—and so can be called upon to share in the costs of —————— 3 Given the pedigree of this rationale, applying it here would hardly “work a sea change in our Commerce Clause jurisprudence.” Ante, at 14. See United Haulers Assn., (7); 488 U.S., at 266; 473, n. (1981); Raymond Motor Transp., 444, n. 18 (1978); South Carolina Highway Nor would applying the rationale to a net income tax cast “doubt” on the Court’s gross receipts precedents, ante, 4–15, given the Court’s longstanding practice of evaluating income and gross receipt taxes differently, see infra, 2–14. 6 COMPTROLLER OF TREASURY OF MD. v. WYNNE GINSBURG, J., dissenting both States’ governments. States deciding whether to tax residents’ entire world- wide income must choose between legitimate but compet- ing tax policy objectives. A State might prioritize obtain- ing equal contributions from those who benefit from the State’s protection in roughly similar ways. Or a State might prioritize ensuring that its taxpayers are not sub- ject to double taxation. A State cannot, however, accom- plish both objectives at once. To illustrate, consider the Wynnes. Under the tax scheme in place in 6, other Howard County residents who earned their income in-state but who otherwise had the same tax profile as the Wynnes (e.g., $2.67 million in taxable net income) owed the same amount of taxes to Maryland as the Wynnes. See App. to Pet. for Cert. A–56. The scheme thus ensured that all residents with similar access to the State’s protection and benefits and similar ability to pay made equal contributions to the State to defray the costs of those benefits. Maryland could not achieve that objective, however, without exposing the Wynnes to a risk of double taxation. Conversely, the Court prioritizes reducing the risk that the Wynnes’ in- come will be taxed twice by two different States. But that choice comes at a cost: The Wynnes enjoyed equal access to the State’s services but will have paid $25,000 less to cover the costs of those services than similarly situated neighbors who earned their income entirely within the State. See Pet. for Cert. 15. States confront the same trade-off when deciding whether to tax nonresidents’ entire in-state income. A State can require all residents and nonresidents who work within the State under its protection to contribute equally to the cost of that protection. Or the State can seek to avoid exposing its workers to any risk of double taxation. But it cannot achieve both objectives. For at least a century, responsibility for striking the Cite as: 575 U. S. (2015) 7 GINSBURG, J., dissenting right balance between these two policy objectives has belonged to the States (and Congress), not this Court. Some States have chosen the same balance the Court embraces today. See ante, at But since almost the dawn of the modern era of state income taxation, other States have taken the same approach as Maryland does now, taxing residents’ entire income, wherever earned, while at the same time taxing nonresidents’ entire in-state income. And recognizing that “[p]rotection, benefit, and power over [a taxpayer’s income] are not confined to ei- ther” the State of residence or the State in which income is earned, this Court has long afforded States that flexibility. This history of States imposing and this Court upholding income tax schemes materially identical to the one the Court con- fronts here should be the beginning and end of this case. The modern era of state income taxation dates from a Wisconsin tax enacted in 1911. See 1911 Wis. Laws ch. 658; R. Blakey, State Income Taxation 1 (1930). From close to the start of this modern era, States have taxed residents and nonresidents in ways materially indistin- guishable from the way Maryland does now. In 1915, for example, Oklahoma began taxing residents’ “entire net income arising or accruing from all sources,” while at the same time taxing nonresidents’ “entire net income from [sources] in th[e] State.” 1915 Okla. Sess. Laws ch. 164, pp. 2–3 Like Maryland today, Oklahoma provided no credit to either residents or nonresidents for taxes paid elsewhere. See ch. 164, et seq., at 2–7. In 19, neighboring Missouri adopted a similar scheme: Residents owed taxes on their “entire net income from all sources” and nonresidents owed taxes on their “entire net income from all sources within th[e] state.” 19 Mo. Laws (a), pp. 524–525 Missouri too provided neither residents nor nonresidents a credit for taxes paid to other jurisdic- 8 COMPTROLLER OF TREASURY OF MD. v. WYNNE GINSBURG, J., dissenting tions. See et seq., at 524–538. Thus, much like Maryland today, these early income tax adopters simulta- neously taxed residents on all income, wherever earned, and nonresidents on all income earned within the State.4 Almost immediately, this Court began issuing what became a long series of decisions, repeatedly upholding States’ authority to tax both residents’ worldwide income and nonresidents’ in-state income. E.g., ; Shaffer, 252 U.S., at 52–53, 57 (nonresident income tax). See State Tax Comm’n of 316 U.S. 4, 8 (1942); 307 U.S., at ; Guaranty Trust Co. v. Virginia, ; 300 U.S., at ; 286 U.S., at By the end of the 20th cen- tury, it was “a well-established principle of interstate and international taxation” that “sovereigns have authority to tax all income of their residents, including income earned outside their borders,” 5 U.S., at 462, 463, n. 12, and that sovereigns generally may tax nonresidents on “income earned within the [sovereign’s] jurisdiction,” Far from suggesting that States must choose between taxing residents or nonresidents, this Court specifically affirmed that the exact same “income may be taxed [si- multaneously] both by the state where it is earned and by the state of the recipient’s domicile.” 307 U. S., at —————— 4 Unlike Maryland’s county income tax, these early 20th-century income taxes allowed a deduction for taxes paid to other jurisdictions. Compare App. 18 with 19 Mo. Laws pp. 526–527, and 1915 Okla. Sess. Laws p. 4. The Wynnes have not argued and the majority does not suggest, however, that Maryland could fully cure the asserted defects in its tax “scheme” simply by providing a deduction, in lieu of a tax credit. And I doubt that such a deduction would give the Wynnes much satisfaction: Deducting taxes paid to other States from the Wynnes’ $2.67 million taxable net income would reduce their Maryland tax burden by a small fraction of the $25,000 tax credit the majority awards them. See Pet. for Cert. 15; App. to Pet. for Cert. A–56. Cite as: 575 U. S. (2015) 9 GINSBURG, J., dissenting See 316 U.S., at 6– 8, 181 (rejecting “a rule of immunity from taxation by more than one state,” including with respect to income taxation ). In Law- rence, for example, this Court dealt with a Mississippi tax “scheme” with the same structure Maryland has today: Mississippi taxed residents on all income, wherever earned, and nonresidents on income earned within the State, without providing either set of taxpayers a credit for taxes paid elsewhere. See –279; Miss. Code Ann. (b)(9) (1930). upheld a Mississippi tax on net income earned by one of its resi- dents on the construction of public highways in Tennessee. See –. The Court did so fully aware that both Mississippi and Tennessee were effectively imposing “an income tax upon the same occupation.” Reply Brief in Law, O. T. 1931, No. 580, p. 32. See 307 U.S., at 363, n. 1, (discussing ). Likewise, in Guaranty Trust, both New York and Vir- ginia had taxed income of a New York trust that had been distributed to a Virginia –22. The resident sought to block Virginia’s tax in order to avoid “double taxation” of the “identical income.” at 22. Rejecting that challenge, the Court once again reiter- ated that “two States” may simultaneously tax the “same income.” The majority deems these cases irrelevant because they involved challenges brought under the Due Process Clause, not the Commerce Clause. See ante, 2–15. These cases are significant, however, not because the constraints imposed by the two Clauses are identical. Obviously, they are not. See Quill What the sheer volume and consistency of this precedent confirms, rather, is the degree to which this Court has— until now—endorsed the “well-established principle of 10 COMPTROLLER OF TREASURY OF MD. v. WYNNE GINSBURG, J., dissenting interstate and international taxation” that a State may tax its residents’ worldwide income, without restriction arising from the source-based taxes imposed by other States and regardless of whether the State chooses to impose source-based taxes of its own. 5 U.S., at 462.5 In any event, it is incorrect that support for this princi- ple is limited to the Court’s Due Process Clause cases. In Shaffer, for example, this Court rejected both a Due Pro- cess Clause challenge and a dormant Commerce Clause challenge to an income tax “scheme” (the Oklahoma stat- ute described above) with the very features the majority latches onto today: Oklahoma taxed residents on all worldwide income and nonresidents on all in-state income, without providing a credit for taxes paid elsewhere to either residents or –53 (Due Process challenge); (dormant Commerce Clause challenge). See The specific tax chal- lenged in Shaffer—a tax on a nonresident’s in-state in- come—exposed taxpayers to the same risk of double taxa- tion as the Maryland tax challenged in this case. The majority labors mightily to distinguish Shaffer, but it does not dispute the one thing that ought to give it pause: Today’s decision overrules Shaffer’s dormant Commerce Clause holding. See ante, 5–16. I would not discard our precedents so lightly. Just as the tax in Shaffer en- countered no constitutional shoals, so Maryland’s scheme should survive the Court’s inspection. —————— 5 Upholding Maryland’s facially neutral tax hardly means, as the majority contends, ante, 2, that the dormant Commerce Clause places no limits on States’ authority to tax residents’ worldwide income. There are, for example, no well-established principles of interstate and international taxation permitting the kind of facially discriminatory tax the majority “[i]magine[s]” a State enacting. Nor are the political processes noted above an adequate safeguard against such a tax. See at 3–5. Cite as: 575 U. S. (2015) 11 GINSBURG, J., dissenting This Court’s decision in West Publishing Co. v. McColgan, 328 U.S. 8 reinforces that conclu- sion. In West Publishing, the Court summarily affirmed a decision of the California Supreme Court that denied a dormant Commerce Clause challenge based on the princi- ples today’s majority disrespects: “[T]here [is no] merit to the contention that [Califor- nia’s tax] discriminates against interstate commerce on the ground that it subjects part of plaintiff ’s in- come to double taxation, given the taxability of plain- tiff ’s entire net income in the state of its domicile. Taxation in one state is not an immunization against taxation in other states. Taxation by states in which a corporation carries on business activities is justified by the advantages that attend the pursuit of such ac- tivities. Income may be taxed both by the state where it is earned and by the state of the recipient’s domi- cile. Protection, benefit and power over the subject matter are not confined to either state.” 27 Cal. 2d 705, 710–711, (citations and internal quotation marks omitted). In treating the matter summarily, the Court rejected an argument strikingly similar to the one the majority now embraces: that California’s tax violated the dormant Commerce Clause because it subjected “interstate com- merce to the risk of a double tax burden.” Brief for Appellant Opposing Motion to Dismiss or Affirm in West Publishing Co. v. McColgan, O. T. 1945, No. 1255, pp. 20– 21 ). The long history just recounted counsels in favor of respecting States’ authority to tax without discount its residents’ worldwide income. As Justice Holmes stated over a century ago, in regard to a “mode of taxation of long standing, the fact that the system has been in 12 COMPTROLLER OF TREASURY OF MD. v. WYNNE GINSBURG, J., dissenting force for a very long time is of itself a strong reason for leaving any improvement that may be desired to the legis- lature.” (1908). Only recently, this Court followed that sound advice in resisting a dormant Commerce Clause challenge to a taxing practice with a pedigree as enduring as the practice in this case. See Department of Revenue of Ky. v. Davis, (quoting Padell, 211 U.S., at ). Surely that advice merits application here, where the challenged tax draws support from both histori- cal practice and numerous decisions of this Court. The majority rejects Justice Holmes’ counsel, observing that most States, over time, have chosen not to exercise plenary authority to tax residents’ worldwide income. See ante, at –18. The Court, however, learns the wrong lesson from the “independent policy decision[s]” States have made. 5 U.S., at 463, n. 12 (emphasis added; internal quotation marks omitted). This history demonstrates not that States “doub[t]” their “constitu- tiona[l]” authority to tax residents’ income, wherever earned, as the majority speculates, ante, 8, but that the very political processes the Court disregards as “fanci- ful,” ante, 2, have in fact worked to produce policies the Court ranks as responsible—all the more reason to resist this Court’s heavy-handed supervision. The Court attempts to deflect the force of this his- tory and precedent by relying on a “trilogy” of decisions it finds “particularly instructive.” Ante, at 6–7 ; Gwin, White & Prince, ; J. D. Adams Mfg., ). As the majority acknowledges, however, those three decisions involved gross receipts taxes, not income taxes. Ante, –9. True, this Court has recently pointed to similarities between these two forms of taxation. See ante, at 9. But it is an indulgence in wishful thinking to say that this Court has Cite as: 575 U. S. (2015) 13 GINSBURG, J., dissenting previously “rejected the argument that the Commerce Clause distinguishes between” these taxes. Ante, at 9. For decades—including the years when the majority’s “trilogy” was decided—the Court has routinely maintained that “the difference between taxes on net income and taxes on gross receipts from interstate commerce warrants different results” under the Commerce Clause. C. Trost & P. Hartman, Federal Limitations on State and Local Taxa- tion 2d 0:1 (3). In Shaffer, for example, the Court rejected the taxpay- er’s dormant Commerce Clause challenge because “the tax [was] imposed not upon gross receipts but only upon the net proceeds.” 252 U.S., Just three years before deciding J. D. Adams, the Court emphasized “mani- fest and substantial” differences between the two types of taxes, calling the burden imposed by a gross receipts tax “direct and immediate,” in contrast to the “indirect and incidental” burden imposed by an income tax. Stewart Dry Goods (quoting United States Glue Co. v. Town of Oak Creek, 247 U.S. 321, 328 (1918)). And the Gwin, White opinion observed that invalidating the gross receipts tax at issue “left to the states wide scope for taxation of those engaged in inter- state commerce, extending to net income derived from it.” The majority asserts that this Court “rejected” this distinction in Moorman Mfg. See ante, at 9. That decision in fact described gross receipts taxes as “more burden- some” than income taxes— In particular, Moorman upheld a state income tax because an earlier decision had upheld a similar but “inherently more burdensome” gross receipts tax. at To say that the constitutionality of an income tax follows a fortiori from the constitutionality of a similar but “more burdensome” gross receipts tax is to affirm, not reject, a distinction between the two. 14 COMPTROLLER OF TREASURY OF MD. v. WYNNE GINSBURG, J., dissenting The Justices participating in the Court’s “trilogy,” in short, would scarcely expect to see the three decisions invoked to invalidate a tax on net income. II Abandoning principles and precedent sustaining simul- taneous residence- and source-based income taxation, the Court offers two reasons for striking down Maryland’s county income tax: (1) the tax creates a risk of double taxation, ante, 18; and (2) the Court deems Mary- land’s income tax “scheme” “inherently discriminatory”— by which the Court means, the scheme fails the so-called “internal consistency” test, ante, at 21–22. The first objec- tion is overwhelmed by the history, recounted above, of States imposing and this Court upholding income taxes that carried a similar risk of double taxation. See at 6–12. The Court’s reliance on the internal consistency test is no more compelling. This Court has not rigidly required States to maintain internally consistent tax regimes. Before today, for two decades, the Court has not insisted that a tax under re- view pass the internal consistency test, see Oklahoma Tax 4 U.S. 5, and has not struck down a state tax for failing the test in nearly 30 years, see American Trucking Assns., Inc. v. Scheiner, ; Tyler Pipe Industries, 483 U.S. 2, Moreover, the Court has rejected challenges to taxes that flunk the test. The Okla- homa tax “scheme” upheld under the dormant Commerce Clause in Shaffer, for example, is materially indistin- guishable from—therefore as internally inconsistent as— Maryland’s 252 U.S., And more recently, in American Trucking Assns., Inc. v. Michigan Pub. Serv. Comm’n, the Court upheld a “concede[dly]” internally inconsistent state tax. (5) Cite as: 575 U. S. (2015) 15 GINSBURG, J., dissenting The Court did so, satisfied that there was a sufficiently close connection between the tax at issue and the local conduct that triggered the tax. See ibid.6 The logic of ATA II, counsel for the Wynnes appeared to recognize, see Tr. of Oral Arg. 46–47, would permit a State to impose a head tax—i.e., a flat charge imposed on every resident in the State—even if that tax were part of an internally inconsistent tax Such a tax would rest on purely local conduct: the taxpayer’s residence in the taxing State. And the taxes paid would defray costs closely connected to that local conduct—the services used by the taxpayer while living in the State. I see no reason why the Constitution requires us to disarm States from using a progressive tax, rather than a flat toll, to cover the costs of local services all residents enjoy. A head tax and a residence-based income tax differ, do they not, only in that the latter is measured by each taxpayer’s ability to pay. Like the head tax, however, a residence-based income tax is triggered by the purely local conduct of residing in the State. And like the head tax, a residence-based income tax covers costs closely —————— 6 The majority reads American Trucking Assns., (5) in a way so implausible, it must resort to quoting from an amicus brief, rather than from the Court’s opinion. According to the majority, this Court did not think the challenged tax failed the internal consistency test in ATA II, it held only that the challengers had failed to make the necessary “empirical showing.” See ante, at 20–21, n. 7. It is true that the United States made that argument. See Brief for United States as Amicus Curiae in ATA II, O. T. 4, No. 03–10, p. 26. But one searches the U. S. Reports in vain for any indication that the Court adopted it. Which is hardly surprising, for one would scarcely think that a test turning on “hypothetically” assessing a tax’s “structure,” ante, 9 (emphasis added), would require empirical data. What the Court in fact said in ATA II, is that the tax’s internal inconsistency would be excused be- cause any multiple taxation resulting from every State adopting the challenged tax would be caused by interstate firms’ choosing to “en- gag[e] in local business in all those States.” 545 U.S., at 16 COMPTROLLER OF TREASURY OF MD. v. WYNNE GINSBURG, J., dissenting connected to that residence: It finances services used by those living in the State. If a head tax qualifies for ATA II’s reprieve from internal consistency, then so too must a residence-based income tax. The majority asserts that because Maryland’s tax scheme is internally inconsistent, it “operates as a tariff,” making it “ ‘patently unconstitutional.’ ” Ante, at 22. This is a curious claim. The defining characteristic of a tariff is that it taxes interstate activity at a higher rate than it taxes the same activity conducted within the State. See West Lynn 2 U.S., 93. Maryland’s resi- dent income tax does the exact opposite: It taxes the in- come of its residents at precisely the same rate, whether the income is earned in-state or out-of-state.7 There is, moreover, a deep flaw in the Court’s chosen test. The Court characterizes internal consistency as a “cure,” ante, 8, 25–26, but the test is scarcely that, at least for the double taxation the Court believes to justify its intervention. According to the Court, Maryland’s tax “scheme” is internally inconsistent because Maryland simultaneously imposes two taxes: the county income tax and the special nonresident tax. See ante, 21–22, and n. 8. But only one of these taxes—the county income tax— actually falls on the Wynnes. Because it is the interaction between these two taxes that renders Maryland’s tax scheme internally inconsistent, Maryland could eliminate the inconsistency by terminating the special nonresident tax—a measure that would not help the Wynnes at all.8 Maryland could, in other words, bring itself into compli- ance with the test at the heart of the Court’s analysis without removing the double tax burden the test is pur- —————— 7 The majority faults the dissents for not “disput[ing]” its “economic analysis,” but beyond citation to a pair of amicus briefs, its opinion offers no analysis to dispute. Ante, at 22. 8 Or Maryland could provide nonresidents a credit for taxes paid to other jurisdictions on Maryland source income. Cf. ante, at 25–26. Cite as: 575 U. S. (2015) GINSBURG, J., dissenting portedly designed to “cure.” To illustrate this oddity, consider the Court’s “simple example” of April (who lives and works in State A) and Bob (who lives in State A, but works in State B). Ante, at 21–22, 25. Both States fail the internal consistency test because they impose (1) a 1.25% tax on income that resi- dents earn in-state, (2) a 1.25% tax on income that resi- dents earn in other jurisdictions, and (3) a 1.25% tax on income that nonresidents earn in-state. According to the Court, these tax schemes are troubling because “Bob will pay more income tax than April solely because he earns income interstate.” Ante, at 22. Each State, however, need not pursue the same ap- proach to make their tax schemes internally consistent.9 See ante, at 25–26. State A might choose to tax residents’ worldwide income only, which it could do by eliminating tax #3 (on nonresidents’ in-state income). State B might instead choose exclusively to tax income earned within the State by deleting tax #2 (on residents’ out-of-state income). Each State’s tax scheme would then be internally con- sistent. But the tax burden on April and Bob would re- main unchanged: Just as under the original schemes, April would have to pay a 1.25% tax only once, to State A, and Bob would have to pay a 1.25% tax twice: once to State A, where he resides, and once to State B, where he earns the income. The Court’s “cure,” in other words, is no match for the perceived disease.10 —————— 9 I do not “clai[m]” as the Court groundlessly suggests, that the Court’s analysis “establish[es] [a] rule of priority” between resi- dence- and source-based taxation. Ante, at 25–26. My objection, rather, is that the Court treats source-based authority as “box[ing] in” a State’s discrete authority to tax on the basis of There is no “inconsisten[cy]” in my analysis, and the majority plainly errs in insisting that there is. Ante, at 25. 10 Attempting to preserve the test’s qualification as a “cure,” the Court redefines the illness as not just double taxation but double taxation caused by an “inherently discriminat[ory]” tax “” Ante, 18 COMPTROLLER OF TREASURY OF MD. v. WYNNE GINSBURG, J., dissenting The Court asserts that this flaw is just a “truism” of every discrimination case, whether brought under the dormant Commerce Clause or the Equal Protection Clause. Ante, at 26. That is simply incorrect. As the Court acknowledges, a government that impermissibly “treats like cases differently” (i.e., discriminates) can ordinarily cure the violation either by “leveling up” or “leveling down.” Consider another April and Bob example. If Bob must pay a 10% tax and April must pay a 5% tax, that discrimina- tion can be eliminated either by requiring both to pay the 10% tax (“leveling up”) or by requiring both to pay the 5% tax (“leveling down”). True, “leveling up” leaves Bob’s tax bill unchanged. “Leveling up” nonetheless benefits Bob because it eliminates the unfairness of being treated differently. And if, as is often true in dormant Commerce Clause cases, April and Bob compete in the same market, then “leveling up” provides the concrete benefit of placing a new burden on Bob’s competitors. The majority’s rule does not work this way. As just explained, Maryland can “cure” what the majority deems discrimination without lowering the Wynnes’ taxes or increasing the tax burden on any of the Wynnes’ neigh- bors—by terminating the special nonresident tax. See 6–. The State can, in other words, satisfy the majority not by lowering Bob’s taxes or by raising April’s taxes, but by eliminating the taxes imposed on yet a third —————— 9–20. Relying on such a distinction to justify the test is entirely circular, however, as the Court defines “inherent discrimination” in this case as internal inconsistency. In any event, given the concern that purportedly drives the Court’s analysis, it is mystifying why the Court sees “virtue” in striking down only one of the two schemes under which Bob is taxed Ante, 9. Whatever disincentive the original scheme creates for Bob (or the Wynnes) to work in interstate commerce is created just as much by the revised scheme that the Court finds satisfactory. Cite as: 575 U. S. (2015) 19 GINSBURG, J., dissenting taxpayer (say, Cathy). The Court’s internal consis- tency test thus scarcely resembles “ordinary” anti- discrimination law. Whatever virtue the internal con- sistency test has in other contexts, this shortcoming makes it a poor excuse for jettisoning taxation principles as entrenched as those here. * * * This case is, at bottom, about policy choices: Should States prioritize ensuring that all who live or work within the State shoulder their fair share of the costs of govern- ment? Or must States prioritize avoidance of double taxation? As I have 6–19, achieving even the latter goal is beyond this Court’s com- petence. Resolving the competing tax policy considera- tions this case implicates is something the Court is even less well equipped to do. For a century, we have recog- nized that state legislatures and the Congress are consti- tutionally assigned and institutionally better equipped to balance such issues. I would reverse, so that we may leave that task where it belongs. |
Justice Stevens | majority | false | Anderson v. Celebrezze | 1983-04-19T00:00:00 | null | https://www.courtlistener.com/opinion/110904/anderson-v-celebrezze/ | https://www.courtlistener.com/api/rest/v3/clusters/110904/ | 1,983 | 1982-060 | 2 | 5 | 4 | On April 24, 1980, petitioner John Anderson announced that he was an independent candidate for the office of President of the United States. Thereafter, his supporters by gathering the signatures of registered voters, filing required documents, and submitting filing fees were able to meet the substantive requirements for having his name placed on the ballot for the general election in November 1980 in all 50 States and the District of Columbia. On April 24, however, it was already too late for Anderson to qualify for a position on the ballot in Ohio and certain other States because the statutory deadlines for filing a statement of candidacy had already passed. The question presented by this case is whether Ohio's early filing deadline placed an unconstitutional burden on the voting and associational rights of Anderson's supporters.
The facts are not in dispute. On May 16, 1980, Anderson's supporters tendered a nominating petition containing approximately 14,500 signatures and a statement of candidacy to respondent Celebrezze, the Ohio Secretary of State. These documents would have entitled Anderson to a place on the ballot if they had been filed on or before March 20, 1980. Respondent refused to accept the petition solely because it had not been filed within the time required by § 3513.25.7 of *783 the Ohio Revised Code.[1] Three days later Anderson and three voters, two registered in Ohio and one in New Jersey, commenced this action in the United States District Court for the Southern District of Ohio, challenging the constitutionality of Ohio's early filing deadline for independent candidates. The District Court granted petitioners' motion for summary judgment and ordered respondent to place Anderson's name on the general election ballot. 499 F. Supp. 121 (1980).
The District Court held that the statutory deadline was unconstitutional on two grounds. It imposed an impermissible burden on the First Amendment rights of Anderson and his Ohio supporters and diluted the potential value of votes that might be cast for him in other States. Moreover, by requiring an independent to declare his candidacy in March without mandating comparable action by the nominee of a political party, the State violated the Equal Protection Clause of the Fourteenth Amendment. The District Court noted that the State did not advance any administrative reasons for the early deadline and rejected the State's asserted justification that the deadline promoted "political stability." Not only did that interest have diminished importance in a Presidential *784 campaign; it also was adequately vindicated by another statute prohibiting a defeated candidate in a party primary from running as an independent.[2]
The Secretary of State promptly appealed and unsuccessfully requested expedited review in both the Court of Appeals and this Court, but apparently did not seek to stay the District Court's order.[3] The election was held while the appeal was pending. In Ohio Anderson received 254,472 votes, or 5.9 percent of the votes cast; nationally, he received 5,720,060 votes or approximately 6.6 percent of the total.[4]
The Court of Appeals reversed. It first inferred that the Court's summary affirmances in Sweetenham v. Rhodes, 318 F. Supp. 1262 (SD Ohio 1970), summarily aff'd, 409 U.S. 942 (1972), and Pratt v. Begley, 352 F. Supp. 328 (ED Ky. 1970), summarily aff'd, 409 U.S. 943 (1972), had implicitly sustained the validity of early filing deadlines. Then, correctly recognizing the limited precedential effect to be accorded summary dispositions,[5] the Court of Appeals independently *785 reached the same conclusion. It held that Ohio's early deadline "ensures that voters making the important choice of their next president have the opportunity for a careful look at the candidates, a chance to see how they withstand the close *786 scrutiny of a political campaign." 664 F.2d 554, 563 (CA6 1981).
In other litigation brought by Anderson challenging early filing deadlines in Maine and Maryland, the Courts of Appeals for the First and Fourth Circuits affirmed District Court judgments ordering Anderson's name placed on the ballot. See Anderson v. Quinn, 495 F. Supp. 730 (Me.), affirmance order, 634 F.2d 616 (CA1 1980); Anderson v. Morris, 500 F. Supp. 1095 (Md.), aff'd, 636 F.2d 55 (CA4 1980).[6] The conflict among the Circuits on an important question of constitutional law led us to grant certiorari. 456 U.S. 960 (1982). We now reverse.
I
After a date toward the end of March, even if intervening events create unanticipated political opportunities, no independent candidate may enter the Presidential race and seek to place his name on the Ohio general election ballot. Thus the direct impact of Ohio's early filing deadline falls upon aspirants for office. Nevertheless, as we have recognized, "the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters." Bullock v. Carter, 405 U.S. 134, 143 (1972). Our primary concern is with the tendency of ballot access restrictions "to limit the field of candidates from which voters might choose." Therefore, "[i]n approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters." Ibid.
The impact of candidate eligibility requirements on voters implicates basic constitutional rights.[7] Writing for a unanimous *787 Court in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958), Justice Harlan stated that it "is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the `liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech." In our first review of Ohio's electoral scheme, Williams v. Rhodes, 393 U.S. 23, 30-31 (1968), this Court explained the interwoven strands of "liberty" affected by ballot access restrictions:
"In the present situation the state laws place burdens on two different, although overlapping, kinds of rights the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms."
As we have repeatedly recognized, voters can assert their preferences only through candidates or parties or both. "It is to be expected that a voter hopes to find on the ballot a candidate who comes near to reflecting his policy preferences on contemporary issues." Lubin v. Panish, 415 U.S. 709, 716 (1974). The right to vote is "heavily burdened" if that vote may be cast only for major-party candidates at a time when other parties or other candidates are "clamoring for a place on the ballot." Ibid.; Williams v. Rhodes, supra, at 31. The exclusion of candidates also burdens voters' freedom *788 of association, because an election campaign is an effective platform for the expression of views on the issues of the day, and a candidate serves as a rallying point for likeminded citizens.[8]
Although these rights of voters are fundamental, not all restrictions imposed by the States on candidates' eligibility for the ballot impose constitutionally suspect burdens on voters' rights to associate or to choose among candidates. We have recognized that, "as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes." Storer v. Brown, 415 U.S. 724, 730 (1974). To achieve these necessary objectives, States have enacted comprehensive and sometimes complex election codes. Each provision of these schemes, whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects at least to some degree the individual's right to vote and his right to associate with others for political ends. Nevertheless, the State's important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions.[9]
*789 Constitutional challenges to specific provisions of a State's election laws therefore cannot be resolved by any "litmus-paper test" that will separate valid from invalid restrictions. Storer, supra, at 730. Instead, a court must resolve such a challenge by an analytical process that parallels its work in ordinary litigation. It must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional. See Williams v. Rhodes, supra, at 30-31; Bullock v. Carter, 405 U. S., at 142-143; American Party of Texas v. White, 415 U.S. 767, 780-781 (1974); Illinois Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 183 (1979). The results of this evaluation will not be automatic; as we have recognized, there is "no substitute *790 for the hard judgments that must be made." Storer v. Brown, supra, at 730.[10]
II
An early filing deadline may have a substantial impact on independent-minded voters. In election campaigns, particularly those which are national in scope, the candidates and the issues simply do not remain static over time. Various candidates rise and fall in popularity; domestic and international developments bring new issues to center stage and may affect voters' assessments of national problems. Such developments will certainly affect the strategies of candidates who have already entered the race; they may also create opportunities for new candidates. See A. Bickel, Reform and Continuity 87-89 (1971). Yet Ohio's filing deadline prevents persons who wish to be independent candidates from entering the significant political arena established in the State by a Presidential election campaign and creating new political coalitions of Ohio voters at any time after mid to late March.[11] At this point developments in campaigns for *791 the major-party nominations have only begun, and the major parties will not adopt their nominees and platforms for another five months. Candidates and supporters within the major parties thus have the political advantage of continued flexibility; for independents, the inflexibility imposed by the March filing deadline is a correlative disadvantage because of the competitive nature of the electoral process.
If the State's filing deadline were later in the year, a newly emergent independent candidate could serve as the focal point for a grouping of Ohio voters who decide, after mid-March, that they are dissatisfied with the choices within the two major parties. As we recognized in Williams v. Rhodes, 393 U. S., at 33, "[s]ince the principal policies of the major parties change to some extent from year to year, and since the identity of the likely major party nominees may not be known until shortly before the election, this disaffected `group' will rarely if ever be a cohesive or identifiable group until a few months before the election."[12] Indeed, several *792 important third-party candidacies in American history were launched after the two major parties staked out their positions and selected their nominees at national conventions during the summer.[13] But under § 3513.25.7, a late-emerging Presidential candidate outside the major parties, whose positions on the issues could command widespread community support, is excluded from the Ohio general election ballot. The "Ohio system thus denies the `disaffected' not only a choice of leadership but a choice on the issues as well." Williams v. Rhodes, supra, at 33.
Not only does the challenged Ohio statute totally exclude any candidate who makes the decision to run for President as an independent after the March deadline, it also burdens the signature-gathering efforts of independents who decide to run in time to meet the deadline. When the primary campaigns are far in the future and the election itself is even more remote, the obstacles facing an independent candidate's organizing efforts are compounded. Volunteers are more difficult to recruit and retain, media publicity and campaign contributions are more difficult to secure, and voters are less interested in the campaign.[14]
It is clear, then, that the March filing deadline places a particular burden on an identifiable segment of Ohio's independent-minded voters. See supra, at 791. As our cases have held, *793 it is especially difficult for the State to justify a restriction that limits political participation by an identifiable political group whose members share a particular viewpoint, associational preference, or economic status.[15] "Our ballot access cases . . . focus on the degree to which the challenged restrictions operate as a mechanism to exclude certain classes of candidates from the electoral process. The inquiry is whether the challenged restriction unfairly or unnecessarily burdens the `availability of political opportunity.' " Clements v. Fashing, 457 U.S. 957, 964 (1982) (plurality opinion), quoting Lubin v. Panish, 415 U. S., at 716.[16]
A burden that falls unequally on new or small political parties or on independent candidates impinges, by its very nature, on associational choices protected by the First Amendment. *794 It discriminates against those candidates and of particular importance against those voters whose political preferences lie outside the existing political parties. Clements v. Fashing, supra, at 964-965 (plurality opinion). By limiting the opportunities of independent-minded voters to associate in the electoral arena to enhance their political effectiveness as a group, such restrictions threaten to reduce diversity and competition in the marketplace of ideas. Historically political figures outside the two major parties have been fertile sources of new ideas and new programs; many of their challenges to the status quo have in time made their way into the political mainstream. Illinois Elections Bd. v. Socialist Workers Party, 440 U. S., at 186; Sweezy v. New Hampshire, 354 U.S. 234, 250-251 (1957) (opinion of Warren, C. J.).[17] In short, the primary values protected by the First Amendment "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open," New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) are served when election campaigns are not monopolized by the existing political parties.
Furthermore, in the context of a Presidential election, state-imposed restrictions[18] implicate a uniquely important *795 national interest. For the President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation. Moreover, the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States.[19] Thus in a Presidential election a State's enforcement of more stringent ballot access requirements, including filing deadlines, has an impact beyond its own borders.[20] Similarly, the State has a less important interest in regulating Presidential elections than statewide or local elections, because the outcome of the former will be largely determined by voters beyond the State's boundaries. This Court, striking down a state statute unduly restricting the choices made by a major party's Presidential nominating convention, observed that such conventions serve "the pervasive national interest in the selection of candidates for national office, and this national interest is greater than any interest of an individual State." Cousins v. Wigoda, 419 U.S. 477, 490 (1975). The Ohio filing deadline challenged in this case does more than burden the associational rights of independent voters and candidates. It places a significant state-imposed restriction on a nationwide electoral process.
*796 III
The State identifies three separate interests that it seeks to further by its early filing deadline for independent Presidential candidates: voter education, equal treatment for partisan and independent candidates, and political stability. We now examine the legitimacy of these interests and the extent to which the March filing deadline serves them.
Voter Education
There can be no question about the legitimacy of the State's interest in fostering informed and educated expressions of the popular will in a general election. Moreover, the Court of Appeals correctly identified that interest as one of the concerns that motivated the Framers' decision not to provide for direct popular election of the President.[21] We are persuaded, however, that the State's important and legitimate interest in voter education does not justify the specific restriction on participation in a Presidential election that is at issue in this case.
The passage of time since the Constitutional Convention in 1787 has brought about two changes that are relevant to the reasonableness of Ohio's statutory requirement that independents formally declare their candidacy at least seven months in advance of a general election. First, although it took days *797 and often weeks for even the most rudimentary information about important events to be transmitted from one part of the country to another in 1787,[22] today even trivial details about national candidates are instantaneously communicated nationwide in both verbal and visual form. Second, although literacy was far from universal in 18th-century America,[23] today the vast majority of the electorate not only is literate but also is informed on a day-to-day basis about events and issues that affect election choices and about the ever-changing popularity of individual candidates. In the modern world it is somewhat unrealistic to suggest that it takes more than seven months to inform the electorate about the qualifications of a particular candidate simply because he lacks a partisan label.
Our cases reflect a greater faith in the ability of individual voters to inform themselves about campaign issues. In Dunn v. Blumstein, 405 U.S. 330 (1972), the Court considered the validity of a Tennessee statute requiring residence in the State for one year and in the county for three months as a prerequisite for registration to vote. The Court held the statute unconstitutional, specifically rejecting the argument that the requirements were justified by the State's interest in voter education.
"Given modern communications, and given the clear indication that campaign spending and voter education occur largely during the month before an election, the State cannot seriously maintain that it is `necessary' to reside for a year in the State and three months in the county in order to be knowledgeable about congressional, state, or even purely local elections." Id., at 358 (footnotes omitted).
*798 This reasoning applied with even greater force to a Presidential election, which receives more intense publicity.[24] Nor are we persuaded by the State's assertion that, unless a candidate actually files a formal declaration of candidacy in Ohio by the March deadline, Ohio voters will not realize that they should pay attention to his candidacy. Brief for Respondent 38. The validity of this asserted interest is undermined by the State's willingness to place major-party nominees on the November ballot even if they never campaigned in Ohio.
It is also by no means self-evident that the interest in voter education is served at all by a requirement that independent candidates must declare their candidacy before the end of March in order to be eligible for a place on the ballot in November. Had the requirement been enforced in Ohio, petitioner Anderson might well have determined that it would be futile for him to allocate any of his time and money to campaigning in that State. The Ohio electorate might thereby have been denied whatever benefits his participation in local debates could have contributed to an understanding of the issues. A State's claim that it is enhancing the ability of its citizenry to make wise decisions by restricting the flow of information to them must be viewed with some skepticism. As we observed in another First Amendment context, it is often true "that the best means to that end is to open the channels of communication rather than to close them." Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976).[25]
*799 Equal Treatment
We also find no merit in the State's claim that the early filing deadline serves the interest of treating all candidates alike. Brief for Respondent 33. It is true that a candidate participating in a primary election must declare his candidacy on the same date as an independent. But both the burdens and the benefits of the respective requirements are materially different, and the reasons for requiring early filing for a primary candidate are inapplicable to independent candidates in the general election.
The consequences of failing to meet the statutory deadline are entirely different for party primary participants and independents. The name of the nominees of the Democratic and Republican Parties will appear on the Ohio ballot in November even if they did not decide to run until after Ohio's March deadline had passed, but the independent is simply denied a position on the ballot if he waits too long.[26] Thus, under Ohio's scheme, the major parties may include all events preceding their national conventions in the calculus that produces their respective nominees and campaign platforms, but *800 the independent's judgment must be based on a history that ends in March.[27]
The early filing deadline for a candidate in a party's primary election is adequately justified by administrative concerns. Seventy-five days appears to be a reasonable time for processing the documents submitted by candidates and preparing the ballot. 499 F. Supp., at 134. The primary date itself must be set sufficiently in advance of the general election; furthermore, a Presidential preference primary must precede the national convention, which is regularly held during the summer. Finally, the successful participant in a party primary generally acquires the automatic support of an experienced political organization; in the Presidential contest he obtains the support of convention delegates.
Neither the administrative justification nor the benefit of an early filing deadline is applicable to an independent candidate. Ohio does not suggest that the March deadline is necessary to allow petition signatures to be counted and verified or to permit November general election ballots to be printed.[28] In addition, the early deadline does not correspond *801 to a potential benefit for the independent, as it does for the party candidate. After filing his statement of candidacy, the independent does not participate in a structured intraparty contest to determine who will receive organizational support; he must develop support by other means. In short, "equal treatment" of partisan and independent candidates simply is not achieved by imposing the March filing deadline on both. As we have written, "[s]ometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike." Jenness v. Fortson, 403 U.S. 431, 442 (1971).
Political Stability
Although the Court of Appeals did not discuss the State's interest in political stability, that was the primary justification advanced by respondent in the District Court, 499 F. Supp., at 134, and it is again asserted in this Court. Respondent's brief explains that the State has a substantial interest in protecting the two major political parties from "damaging intraparty feuding." Brief for Respondent 41. According to respondent, a candidate's decision to abandon efforts to win the party primary and to run as an independent "can be very damaging to state political party structure." Anderson's decision to run as an independent, respondent argues, threatened to "splinter" the Ohio Republican Party "by drawing away its activists to work in his `independent' campaign." Id., at 37; see id., at 44.
Ohio's asserted interest in political stability amounts to a desire to protect existing political parties from competition competition for campaign workers, voter support, and other campaign resources generated by independent candidates who have previously been affiliated with the party.[29] Our *802 evaluation of this interest is guided by two of our prior cases, Williams v. Rhodes and Storer v. Brown.
In Williams v. Rhodes we squarely held that protecting the Republican and Democratic Parties from external competition cannot justify the virtual exclusion of other political aspirants from the political arena. Addressing Ohio's claim that it "may validly promote a two-party system in order to encourage compromise and political stability," we wrote:
"The fact is, however, that the Ohio system does not merely favor a `two-party system'; it favors two particular parties the Republicans and the Democrats and in effect tends to give them a complete monopoly. There is, of course, no reason why two parties should retain a permanent monopoly on the right to have people vote for or against them. Competition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms. New parties struggling for their place must have the time and opportunity to organize in order to meet reasonable requirements for ballot position, just as the old parties have had in the past." Williams v. Rhodes, 393 U. S., at 31-32.
Thus in Williams v. Rhodes we concluded that First Amendment values outweighed the State's interest in protecting the two major political parties.
On the other hand, in Storer v. Brown we upheld two California statutory provisions that restricted access by independent *803 candidates to the general election ballot. Under California law, a person could not run as an independent in November if he had been defeated in a party primary that year or if he had been registered with a political party within one year prior to that year's primary election. We stated that "California apparently believes with the Founding Fathers that splintered parties and unrestrained factionalism may do significant damage to the fabric of government," and that destruction of "the political stability of the system of the State" could have "profound consequences for the entire citizenry." 415 U.S., at 736. Further, we approved the State's goals of discouraging "independent candidacies prompted by short-range political goals, pique, or personal quarrel." Id., at 735.
Thus in Storer we recognized the legitimacy of the State's interest in preventing "splintered parties and unrestrained factionalism." But we did not suggest that a political party could invoke the powers of the State to assure monolithic control over its own members and supporters.[30] Political competition that draws resources away from the major parties cannot, for that reason alone, be condemned as "unrestrained factionalism." Instead, in Storer we examined the two challenged provisions in the context of California's electoral system. By requiring a candidate to remain in the intraparty competition once the disaffiliation deadline had passed, and by giving conclusive effect to the winnowing process performed by party members in the primary election, the challenged provisions were an essential part of "a general state policy aimed at maintaining the integrity of the various routes to the ballot." Moreover, we pointed out that the *804 policy "involves no discrimination against independents." Storer, supra, at 733.
Ohio's challenged restriction is substantially different from the California provisions upheld in Storer. As we have noted, the early filing deadline does discriminate against independents. And the deadline is neither a "sore loser" provision nor a disaffiliation statute.[31] Furthermore, it is important to recognize that Storer upheld the State's interest in avoiding political fragmentation in the context of elections wholly within the boundaries of California.[32] The State's interest in regulating a nationwide Presidential election is not nearly as strong; no State could singlehandedly assure "political stability" in the Presidential context. The Ohio deadline does not serve any state interest in "maintaining the integrity of the various routes to the ballot" for the Presidency, because Ohio's Presidential preference primary does not serve to narrow the field for the general election. A major party candidate who loses the Ohio primary, or who does not even run in Ohio, may nonetheless appear on the November general election ballot as the party's nominee. In addition, the national scope of the competition for delegates at the Presidential nominating conventions assures that "intraparty feuding" will continue until August.
*805 More generally, the early filing deadline is not precisely drawn to protect the parties from "intraparty feuding," whatever legitimacy that state goal may have in a Presidential election. If the deadline is designed to keep intraparty competition within the party structure, its coverage is both too broad and too narrow. It is true that in this case § 3513.25.7 was applied to a candidate who had previously competed in party primaries and then sought to run as an independent. But the early deadline applies broadly to independent candidates who have not been affiliated in the recent past with any political party. On the other hand, as long as the decision to run is made before the March deadline, Ohio does not prohibit independent candidacies by persons formerly affiliated with a political party, or currently participating in intraparty competition in other States regardless of the effect on the political party structure.
Moreover, the early deadline for filing as an independent may actually impair the State's interest in preserving party harmony. As Professor Bickel perceptively observed:
"The characteristic American third party, then, consists of a group of people who have tried to exert influence within one of the major parties, have failed, and later decide to work on the outside. States in which there is an early qualifying date tend to force such groups to create minor parties without first attempting to influence the course taken by a major one. For a dissident group is put to the choice of foregoing major-party primary and other prenomination activity by organizing separately early on in an election year, or losing all opportunity for action as a third party later." Bickel, supra n. 11, at 87-88.
The same analysis, of course, is applicable to a "dissident group" that coalesces around an independent candidate rather than attempting to form a new political party.
We conclude that Ohio's March filing deadline for independent candidates for the office of President of the United *806A States cannot be justified by the State's asserted interest in protecting political stability.
"For even when pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty. Dunn v. Blumstein, 405 U. S., at 343. `Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.' NAACP v. Button, 371 U. S. [415], 438 [(1963)]. If the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties." Kusper v. Pontikes, 414 U.S. 51, 58-59 (1973).
IV
We began our inquiry by noting that our primary concern is not the interest of candidate Anderson, but rather, the interests of the voters who chose to associate together to express their support for Anderson's candidacy and the views he espoused. Under any realistic appraisal, the "extent and nature" of the burdens Ohio has placed on the voters' freedom of choice and freedom of association, in an election of nationwide importance, unquestionably outweigh the State's minimal interest in imposing a March deadline.
The judgment of the Court of Appeals is
Reversed. | On April 24, petitioner John Anderson announced that he was an independent candidate for the office of President of the United States. Thereafter, his supporters by gathering the signatures of registered voters, filing required documents, and submitting filing fees were able to meet the substantive requirements for having his name placed on the ballot for the general election in November in all 50 States and the District of Columbia. On April 24, however, it was already too late for Anderson to qualify for a position on the ballot in Ohio and certain other States because the statutory deadlines for filing a statement of candidacy had already passed. The question presented by this case is whether Ohio's early filing deadline placed an unconstitutional burden on the voting and associational rights of Anderson's supporters. The facts are not in dispute. On May 16, Anderson's supporters tendered a nominating petition containing approximately 14,500 signatures and a statement of candidacy to respondent Celebrezze, the Ohio Secretary of State. These documents would have entitled Anderson to a place on the ballot if they had been filed on or before March 20, Respondent refused to accept the petition solely because it had not been filed within the time required by 3513.25.7 of *783 the Ohio Revised Code.[1] Three days later Anderson and three voters, two registered in Ohio and one in New Jersey, commenced this action in the United States District for the Southern District of Ohio, challenging the constitutionality of Ohio's early filing deadline for independent candidates. The District granted petitioners' motion for summary judgment and ordered respondent to place Anderson's name on the general election The District held that the statutory deadline was unconstitutional on two grounds. It imposed an impermissible burden on the First Amendment rights of Anderson and his Ohio supporters and diluted the potential value of votes that might be cast for him in other States. Moreover, by requiring an independent to declare his candidacy in March without mandating comparable action by the nominee of a political party, the State violated the Equal Protection Clause of the Fourteenth Amendment. The District noted that the State did not advance any administrative reasons for the early deadline and rejected the State's asserted justification that the deadline promoted "political stability." Not only did that interest have diminished importance in a Presidential *784 campaign; it also was adequately vindicated by another statute prohibiting a defeated candidate in a party primary from running as an independent.[2] The Secretary of State promptly appealed and unsuccessfully requested expedited review in both the of Appeals and this but apparently did not seek to stay the District 's order.[3] The election was held while the appeal was pending. In Ohio Anderson received 254,472 votes, or 5.9 percent of the votes cast; nationally, he received 5,720,060 votes or approximately 6.6 percent of the total.[4] The of Appeals reversed. It first inferred that the 's summary affirmances in summarily aff'd, and summarily aff'd, had implicitly sustained the validity of early filing deadlines. Then, correctly recognizing the limited precedential effect to be accorded summary dispositions,[5] the of Appeals independently *785 reached the same conclusion. It held that Ohio's early deadline "ensures that voters making the important choice of their next president have the opportunity for a careful look at the candidates, a chance to see how they withstand the close *786 scrutiny of a political campaign." In other litigation brought by Anderson challenging early filing deadlines in Maine and Maryland, the s of Appeals for the First and Fourth Circuits affirmed District judgments ordering Anderson's name placed on the See (Me.), affirmance order, ; (Md.), aff'd,[6] The conflict among the Circuits on an important question of constitutional law led us to grant certiorari. We now reverse. I After a date toward the end of March, even if intervening events create unanticipated political opportunities, no independent candidate may enter the Presidential race and seek to place his name on the Ohio general election Thus the direct impact of Ohio's early filing deadline falls upon aspirants for office. Nevertheless, as we have recognized, "the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters." Our primary concern is with the tendency of ballot access restrictions "to limit the field of candidates from which voters might choose." Therefore, "[i]n approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters." The impact of candidate eligibility requirements on voters implicates basic constitutional rights.[7] Writing for a unanimous *787 in Justice Harlan stated that it "is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the `liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech." In our first review of Ohio's electoral scheme, this explained the interwoven strands of "liberty" affected by ballot access restrictions: "In the present situation the state laws place burdens on two different, although overlapping, kinds of rights the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms." As we have repeatedly recognized, voters can assert their preferences only through candidates or parties or both. "It is to be expected that a voter hopes to find on the ballot a candidate who comes near to reflecting his policy preferences on contemporary issues." The right to vote is "heavily burdened" if that vote may be cast only for major-party candidates at a time when other parties or other candidates are "clamoring for a place on the " ; The exclusion of candidates also burdens voters' freedom *788 of association, because an election campaign is an effective platform for the expression of views on the issues of the day, and a candidate serves as a rallying point for likeminded citizens.[8] Although these rights of voters are fundamental, not all restrictions imposed by the States on candidates' eligibility for the ballot impose constitutionally suspect burdens on voters' rights to associate or to choose among candidates. We have recognized that, "as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes." To achieve these necessary objectives, States have enacted comprehensive and sometimes complex election codes. Each provision of these schemes, whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects at least to some degree the individual's right to vote and his right to associate with others for political ends. Nevertheless, the State's important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions.[9] *789 Constitutional challenges to specific provisions of a State's election laws therefore cannot be resolved by any "litmus-paper test" that will separate valid from invalid restrictions. at Instead, a court must resolve such a challenge by an analytical process that parallels its work in ordinary litigation. It must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional. See at ; -; American of ; Illinois Elections The results of this evaluation will not be automatic; as we have recognized, there is "no substitute *790 for the hard judgments that must be made." at[10] II An early filing deadline may have a substantial impact on independent-minded voters. In election campaigns, particularly those which are national in scope, the candidates and the issues simply do not remain static over time. Various candidates rise and fall in popularity; domestic and international developments bring new issues to center stage and may affect voters' assessments of national problems. Such developments will certainly affect the strategies of candidates who have already entered the race; they may also create opportunities for new candidates. See A. Bickel, Reform and Continuity 87-89 Yet Ohio's filing deadline prevents persons who wish to be independent candidates from entering the significant political arena established in the State by a Presidential election campaign and creating new political coalitions of Ohio voters at any time after mid to late March.[11] At this point developments in campaigns for *791 the major-party nominations have only begun, and the major parties will not adopt their nominees and platforms for another five months. Candidates and supporters within the major parties thus have the political advantage of continued flexibility; for independents, the inflexibility imposed by the March filing deadline is a correlative disadvantage because of the competitive nature of the electoral process. If the State's filing deadline were later in the year, a newly emergent independent candidate could serve as the focal point for a grouping of Ohio voters who decide, after mid-March, that they are dissatisfied with the choices within the two major parties. As we recognized in "[s]ince the principal policies of the major parties change to some extent from year to year, and since the identity of the likely major party nominees may not be known until shortly before the election, this disaffected `group' will rarely if ever be a cohesive or identifiable group until a few months before the election."[12] Indeed, several *792 important third-party candidacies in American history were launched after the two major parties staked out their positions and selected their nominees at national conventions during the summer.[13] But under 3513.25.7, a late-emerging Presidential candidate outside the major parties, whose positions on the issues could command widespread community support, is excluded from the Ohio general election The "Ohio system thus denies the `disaffected' not only a choice of leadership but a choice on the issues as well." Not only does the challenged Ohio statute totally exclude any candidate who makes the decision to run for President as an independent after the March deadline, it also burdens the signature-gathering efforts of independents who decide to run in time to meet the deadline. When the primary campaigns are far in the future and the election itself is even more remote, the obstacles facing an independent candidate's organizing efforts are compounded. Volunteers are more difficult to recruit and retain, media publicity and campaign contributions are more difficult to secure, and voters are less interested in the campaign.[14] It is clear, then, that the March filing deadline places a particular burden on an identifiable segment of Ohio's independent-minded voters. See As our cases have held, *793 it is especially difficult for the State to justify a restriction that limits political participation by an identifiable political group whose members share a particular viewpoint, associational preference, or economic status.[15] "Our ballot access cases focus on the degree to which the challenged restrictions operate as a mechanism to exclude certain classes of candidates from the electoral process. The inquiry is whether the challenged restriction unfairly or unnecessarily burdens the `availability of political opportunity.' " quoting 415 U. S., at[16] A burden that falls unequally on new or small political parties or on independent candidates impinges, by its very nature, on associational choices protected by the First Amendment. *794 It discriminates against those candidates and of particular importance against those voters whose political preferences lie outside the existing political parties. at -965 By limiting the opportunities of independent-minded voters to associate in the electoral arena to enhance their political effectiveness as a group, such restrictions threaten to reduce diversity and competition in the marketplace of ideas. Historically political figures outside the two major parties have been fertile sources of new ideas and new programs; many of their challenges to the status quo have in time made their way into the political mainstream. Illinois Elections ;[17] In short, the primary values protected by the First Amendment "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open," New York Times (1) are served when election campaigns are not monopolized by the existing political parties. Furthermore, in the context of a Presidential election, state-imposed restrictions[18] implicate a uniquely important *795 national interest. For the President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation. Moreover, the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States.[19] Thus in a Presidential election a State's enforcement of more stringent ballot access requirements, including filing deadlines, has an impact beyond its own borders.[20] Similarly, the State has a less important interest in regulating Presidential elections than statewide or local elections, because the outcome of the former will be largely determined by voters beyond the State's boundaries. This striking down a state statute unduly restricting the choices made by a major party's Presidential nominating convention, observed that such conventions serve "the pervasive national interest in the selection of candidates for national office, and this national interest is greater than any interest of an individual State." The Ohio filing deadline challenged in this case does more than burden the associational rights of independent voters and candidates. It places a significant state-imposed restriction on a nationwide electoral process. *796 III The State identifies three separate interests that it seeks to further by its early filing deadline for independent Presidential candidates: voter education, equal treatment for partisan and independent candidates, and political stability. We now examine the legitimacy of these interests and the extent to which the March filing deadline serves them. Voter Education There can be no question about the legitimacy of the State's interest in fostering informed and educated expressions of the popular will in a general election. Moreover, the of Appeals correctly identified that interest as one of the concerns that motivated the Framers' decision not to provide for direct popular election of the President.[21] We are persuaded, however, that the State's important and legitimate interest in voter education does not justify the specific restriction on participation in a Presidential election that is at issue in this case. The passage of time since the Constitutional Convention in 1787 has brought about two changes that are relevant to the reasonableness of Ohio's statutory requirement that independents formally declare their candidacy at least seven months in advance of a general election. First, although it took days *797 and often weeks for even the most rudimentary information about important events to be transmitted from one part of the country to another in 1787,[22] today even trivial details about national candidates are instantaneously communicated nationwide in both verbal and visual form. Second, although literacy was far from universal in 18th-century America,[23] today the vast majority of the electorate not only is literate but also is informed on a day-to-day basis about events and issues that affect election choices and about the ever-changing popularity of individual candidates. In the modern world it is somewhat unrealistic to suggest that it takes more than seven months to inform the electorate about the qualifications of a particular candidate simply because he lacks a partisan label. Our cases reflect a greater faith in the ability of individual voters to inform themselves about campaign issues. In the considered the validity of a Tennessee statute requiring residence in the State for one year and in the county for three months as a prerequisite for registration to vote. The held the statute unconstitutional, specifically rejecting the argument that the requirements were justified by the State's interest in voter education. "Given modern communications, and given the clear indication that campaign spending and voter education occur largely during the month before an election, the State cannot seriously maintain that it is `necessary' to reside for a year in the State and three months in the county in order to be knowledgeable about congressional, state, or even purely local elections." *798 This reasoning applied with even greater force to a Presidential election, which receives more intense publicity.[24] Nor are we persuaded by the State's assertion that, unless a candidate actually files a formal declaration of candidacy in Ohio by the March deadline, Ohio voters will not realize that they should pay attention to his candidacy. Brief for Respondent 38. The validity of this asserted interest is undermined by the State's willingness to place major-party nominees on the November ballot even if they never campaigned in Ohio. It is also by no means self-evident that the interest in voter education is served at all by a requirement that independent candidates must declare their candidacy before the end of March in order to be eligible for a place on the ballot in November. Had the requirement been enforced in Ohio, petitioner Anderson might well have determined that it would be futile for him to allocate any of his time and money to campaigning in that State. The Ohio electorate might thereby have been denied whatever benefits his participation in local debates could have contributed to an understanding of the issues. A State's claim that it is enhancing the ability of its citizenry to make wise decisions by restricting the flow of information to them must be viewed with some skepticism. As we observed in another First Amendment context, it is often true "that the best means to that end is to open the channels of communication rather than to close them." Virginia Pharmacy[25] *799 Equal Treatment We also find no merit in the State's claim that the early filing deadline serves the interest of treating all candidates alike. Brief for Respondent 33. It is true that a candidate participating in a primary election must declare his candidacy on the same date as an independent. But both the burdens and the benefits of the respective requirements are materially different, and the reasons for requiring early filing for a primary candidate are inapplicable to independent candidates in the general election. The consequences of failing to meet the statutory deadline are entirely different for party primary participants and independents. The name of the nominees of the Democratic and Republican Parties will appear on the Ohio ballot in November even if they did not decide to run until after Ohio's March deadline had passed, but the independent is simply denied a position on the ballot if he waits too long.[26] Thus, under Ohio's scheme, the major parties may include all events preceding their national conventions in the calculus that produces their respective nominees and campaign platforms, but *800 the independent's judgment must be based on a history that ends in March.[27] The early filing deadline for a candidate in a party's primary election is adequately justified by administrative concerns. Seventy-five days appears to be a reasonable time for processing the documents submitted by candidates and preparing the The primary date itself must be set sufficiently in advance of the general election; furthermore, a Presidential preference primary must precede the national convention, which is regularly held during the summer. Finally, the successful participant in a party primary generally acquires the automatic support of an experienced political organization; in the Presidential contest he obtains the support of convention delegates. Neither the administrative justification nor the benefit of an early filing deadline is applicable to an independent candidate. Ohio does not suggest that the March deadline is necessary to allow petition signatures to be counted and verified or to permit November general election ballots to be printed.[28] In addition, the early deadline does not correspond *801 to a potential benefit for the independent, as it does for the party candidate. After filing his statement of candidacy, the independent does not participate in a structured intraparty contest to determine who will receive organizational support; he must develop support by other means. In short, "equal treatment" of partisan and independent candidates simply is not achieved by imposing the March filing deadline on both. As we have written, "[s]ometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike." Political Stability Although the of Appeals did not discuss the State's interest in political stability, that was the primary justification advanced by respondent in the District and it is again asserted in this Respondent's brief explains that the State has a substantial interest in protecting the two major political parties from "damaging intraparty feuding." Brief for Respondent 41. According to respondent, a candidate's decision to abandon efforts to win the party primary and to run as an independent "can be very damaging to state political party structure." Anderson's decision to run as an independent, respondent argues, threatened to "splinter" the Ohio Republican "by drawing away its activists to work in his `independent' campaign." ; see Ohio's asserted interest in political stability amounts to a desire to protect existing political parties from competition competition for campaign workers, voter support, and other campaign resources generated by independent candidates who have previously been affiliated with the party.[29] Our *802 evaluation of this interest is guided by two of our prior cases, and In we squarely held that protecting the Republican and Democratic Parties from external competition cannot justify the virtual exclusion of other political aspirants from the political arena. Addressing Ohio's claim that it "may validly promote a two-party system in order to encourage compromise and political stability," we wrote: "The fact is, however, that the Ohio system does not merely favor a `two-party system'; it favors two particular parties the Republicans and the Democrats and in effect tends to give them a complete monopoly. There is, of course, no reason why two parties should retain a permanent monopoly on the right to have people vote for or against them. Competition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms. New parties struggling for their place must have the time and opportunity to organize in order to meet reasonable requirements for ballot position, just as the old parties have had in the past." 393 U. S., -32. Thus in we concluded that First Amendment values outweighed the State's interest in protecting the two major political parties. On the other hand, in we upheld two California statutory provisions that restricted access by independent *803 candidates to the general election Under California law, a person could not run as an independent in November if he had been defeated in a party primary that year or if he had been registered with a political party within one year prior to that year's primary election. We stated that "California apparently believes with the Founding Fathers that splintered parties and unrestrained factionalism may do significant damage to the fabric of government," and that destruction of "the political stability of the system of the State" could have "profound consequences for the entire citizenry." Further, we approved the State's goals of discouraging "independent candidacies prompted by short-range political goals, pique, or personal quarrel." Thus in we recognized the legitimacy of the State's interest in preventing "splintered parties and unrestrained factionalism." But we did not suggest that a political party could invoke the powers of the State to assure monolithic control over its own members and supporters.[30] Political competition that draws resources away from the major parties cannot, for that reason alone, be condemned as "unrestrained factionalism." Instead, in we examined the two challenged provisions in the context of California's electoral system. By requiring a candidate to remain in the intraparty competition once the disaffiliation deadline had passed, and by giving conclusive effect to the winnowing process performed by party members in the primary election, the challenged provisions were an essential part of "a general state policy aimed at maintaining the integrity of the various routes to the " Moreover, we pointed out that the *804 policy "involves no discrimination against independents." Ohio's challenged restriction is substantially different from the California provisions upheld in As we have noted, the early filing deadline does discriminate against independents. And the deadline is neither a "sore loser" provision nor a disaffiliation statute.[31] Furthermore, it is important to recognize that upheld the State's interest in avoiding political fragmentation in the context of elections wholly within the boundaries of California.[32] The State's interest in regulating a nationwide Presidential election is not nearly as strong; no State could singlehandedly assure "political stability" in the Presidential context. The Ohio deadline does not serve any state interest in "maintaining the integrity of the various routes to the ballot" for the Presidency, because Ohio's Presidential preference primary does not serve to narrow the field for the general election. A major party candidate who loses the Ohio primary, or who does not even run in Ohio, may nonetheless appear on the November general election ballot as the party's nominee. In addition, the national scope of the competition for delegates at the Presidential nominating conventions assures that "intraparty feuding" will continue until August. *805 More generally, the early filing deadline is not precisely drawn to protect the parties from "intraparty feuding," whatever legitimacy that state goal may have in a Presidential election. If the deadline is designed to keep intraparty competition within the party structure, its coverage is both too broad and too narrow. It is true that in this case 3513.25.7 was applied to a candidate who had previously competed in party primaries and then sought to run as an independent. But the early deadline applies broadly to independent candidates who have not been affiliated in the recent past with any political party. On the other hand, as long as the decision to run is made before the March deadline, Ohio does not prohibit independent candidacies by persons formerly affiliated with a political party, or currently participating in intraparty competition in other States regardless of the effect on the political party structure. Moreover, the early deadline for filing as an independent may actually impair the State's interest in preserving party harmony. As Professor Bickel perceptively observed: "The characteristic American third party, then, consists of a group of people who have tried to exert influence within one of the major parties, have failed, and later decide to work on the outside. States in which there is an early qualifying date tend to force such groups to create minor parties without first attempting to influence the course taken by a major one. For a dissident group is put to the choice of foregoing major-party primary and other prenomination activity by organizing separately early on in an election year, or losing all opportunity for action as a third party later." Bickel, at 87-88. The same analysis, of course, is applicable to a "dissident group" that coalesces around an independent candidate rather than attempting to form a new political party. We conclude that Ohio's March filing deadline for independent candidates for the office of President of the United *806A States cannot be justified by the State's asserted interest in protecting political stability. "For even when pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty. `Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.' NAACP v. Button, 371 U. S. [415], 438 [(1963)]. If the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties." IV We began our inquiry by noting that our primary concern is not the interest of candidate Anderson, but rather, the interests of the voters who chose to associate together to express their support for Anderson's candidacy and the views he espoused. Under any realistic appraisal, the "extent and nature" of the burdens Ohio has placed on the voters' freedom of choice and freedom of association, in an election of nationwide importance, unquestionably outweigh the State's minimal interest in imposing a March deadline. The judgment of the of Appeals is Reversed. |
Justice Marshall | second_dissenting | false | United States v. Miller | 1976-04-21T00:00:00 | null | https://www.courtlistener.com/opinion/109433/united-states-v-miller/ | https://www.courtlistener.com/api/rest/v3/clusters/109433/ | 1,976 | 1975-081 | 1 | 7 | 2 | In California Bankers Assn. v. Shultz, 416 U.S. 21 (1974), the Court upheld the constitutionality of the recordkeeping requirements of the Bank Secrecy Act. 12 U.S. C. § 1829b (d). I dissented, finding the required maintenance of bank customers' records to be a seizure within the meaning of the Fourth Amendment and unlawful in the absence of a warrant and probable cause. While the Court in California Bankers Assn. did not then purport to decide whether a customer could later challenge the bank's delivery of his records to the Government pursuant to subpoena, I warned:
"[I]t is ironic that although the majority deems the bank customers' Fourth Amendment claims premature, it also intimates that once the bank has made copies of a customer's checks, the customer no longer has standing to invoke his Fourth Amendment rights when a demand is made on the bank by the Government for the records. . . . By accepting the Government's bifurcated approach to the recordkeeping requirement and the acquisition of the records, the majority engages in a hollow charade whereby Fourth Amendment claims are to be labeled premature until such time as they can be deemed too late." 416 U.S., at 97.
Today, not surprisingly, the Court finds respondent's claims to be made too late. Since the Court in California *456 Bankers Assn. held that a bank, in complying with the requirement that it keep copies of the checks written by its customers, "neither searches nor seizes records in which the depositor has a Fourth Amendment right," id., at 54, there is nothing new in today's holding that respondent has no protected Fourth Amendment interest in such records. A fortiori, he does not have standing to contest the Government's subpoena to the bank. Alderman v. United States, 394 U.S. 165 (1969).
I wash my hands of today's extended redundancy by the Court. Because the recordkeeping requirements of the Act order the seizure of customers' bank records without a warrant and probable cause, I believe the Act is unconstitutional and that respondent has standing to raise that claim. Since the Act is unconstitutional, the Government cannot rely on records kept pursuant to it in prosecuting bank customers. The Government relied on such records in this case and, because of that, I would affirm the Court of Appeals' reversal of respondent's conviction. I respectfully dissent.
| In California Bankers the Court upheld the constitutionality of the recordkeeping requirements of the Bank Secrecy Act. 12 U.S. C. 1829b (d). I dissented, finding the required maintenance of bank customers' records to be a seizure within the meaning of the Fourth Amendment and unlawful in the absence of a warrant and probable cause. While the Court in California Bankers Assn. did not then purport to decide whether a customer could later challenge the bank's delivery of his records to the Government pursuant to subpoena, I warned: "[I]t is ironic that although the majority deems the bank customers' Fourth Amendment claims premature, it also intimates that once the bank has made copies of a customer's checks, the customer no longer has standing to invoke his Fourth Amendment rights when a demand is made on the bank by the Government for the records. By accepting the Government's bifurcated approach to the recordkeeping requirement and the acquisition of the records, the majority engages in a hollow charade whereby Fourth Amendment claims are to be labeled premature until such time as they can be deemed too late." Today, not surprisingly, the Court finds respondent's claims to be made too late. Since the Court in California *456 Bankers Assn. held that a bank, in complying with the requirement that it keep copies of the checks written by its customers, "neither searches nor seizes records in which the depositor has a Fourth Amendment right," there is nothing new in today's holding that respondent has no protected Fourth Amendment interest in such records. A fortiori, he does not have standing to contest the Government's subpoena to the bank. I wash my hands of today's extended redundancy by the Court. Because the recordkeeping requirements of the Act order the seizure of customers' bank records without a warrant and probable cause, I believe the Act is unconstitutional and that respondent has standing to raise that claim. Since the Act is unconstitutional, the Government cannot rely on records kept pursuant to it in prosecuting bank customers. The Government relied on such records in this case and, because of that, I would affirm the Court of Appeals' reversal of respondent's conviction. I respectfully dissent. |
Justice Ginsburg | concurring | false | Edwards v. Balisok | 1997-05-19T00:00:00 | null | https://www.courtlistener.com/opinion/118112/edwards-v-balisok/ | https://www.courtlistener.com/api/rest/v3/clusters/118112/ | 1,997 | 1996-056 | 1 | 9 | 0 | I agree that Balisok's claim is not cognizable under 42 U.S. C. § 1983 to the extent that it is "based on allegations of deceit and bias on the part of the decision-maker," ante, at 648; those allegations, as the Court explains, "necessarily imply the invalidity of the punishment imposed," ibid.; see ante, at 646-648. Balisok alleged other procedural defects, however, including the failure of prison official Edwards "to specify what facts and evidence supported the finding of guilt." App. to Pet. for Cert. F-3 (District Court order); see Wolff v. McDonnell, 418 U.S. 539, 564-565 (1974) (inmate subjected to discipline is entitled to a written statement of reasons and evidence relied on). A defect of this order, unlike the principal "deceit and bias" procedural defect Balisok alleged, see ante, at 646-647, would not necessarily *650 imply the invalidity of the deprivation of his good-time credits, and therefore is immediately cognizable under § 1983. On this understanding, I join the Court's opinion.
| I agree that Balisok's claim is not cognizable under 42 U.S. C. 1983 to the extent that it is "based on allegations of deceit and bias on the part of the decision-maker," ante, at 648; those allegations, as the Court explains, "necessarily imply the invalidity of the punishment imposed," ibid.; see ante, at 646-648. Balisok alleged other procedural defects, however, including the failure of prison official Edwards "to specify what facts and evidence supported the finding of guilt." App. to Pet. for Cert. F-3 (District Court order); see A defect of this order, unlike the principal "deceit and bias" procedural defect Balisok alleged, see ante, at 646-647, would not necessarily *650 imply the invalidity of the deprivation of his good-time credits, and therefore is immediately cognizable under 1983. On this understanding, I join the Court's opinion. |
Justice Breyer | dissenting | false | Davis v. United States | 2011-06-16T00:00:00 | null | https://www.courtlistener.com/opinion/218926/davis-v-united-states/ | https://www.courtlistener.com/api/rest/v3/clusters/218926/ | 2,011 | 2010-066 | 1 | 7 | 2 | In 2009, in Arizona v. Gant, 556 U. S. ___, this Court
held that a police search of an automobile without a war
rant violates the Fourth Amendment if the police have pre
viously removed the automobile’s occupants and placed
them securely in a squad car. The present case involves
these same circumstances, and it was pending on appeal
when this Court decided Gant. Because Gant represents a
“shift” in the Court’s Fourth Amendment jurisprudence,
ante, at 1, we must decide whether and how Gant’s new
rule applies here.
I
I agree with the Court about whether Gant’s new rule
applies. It does apply. Between 1965, when the Court
decided Linkletter v. Walker, 381 U.S. 618, and 1987,
when it decided Griffith v. Kentucky, 479 U.S. 314, that
conclusion would have been more difficult to reach. Under
Linkletter, the Court determined a new rule’s retroactivity
by looking to several different factors, including whether
the new rule represented a “clear break” with the past and
the degree of “reliance by law enforcement authorities on
the old standards.” Desist v. United States, 394 U.S. 244,
248–249 (1969) (internal quotation marks omitted) (also
2 DAVIS v. UNITED STATES
BREYER, J., dissenting
citing “the purpose to be served by the new standards”
and “the effect on the administration of justice” as factors
(internal quotation marks omitted)). And the Court would
often not apply the new rule to identical cases still pend
ing on appeal. See ibid.
After 22 years of struggling with its Linkletter approach,
however, the Court decided in Griffith that Linkletter
had proved unfair and unworkable. It then substituted a
clearer approach, stating that “a new rule for the conduct
of criminal prosecutions is to be applied retroactively to all
cases, state or federal, pending on direct review or not yet
final, with no exception for cases in which the new rule
constitutes a ‘clear break’ with the past.” 479 U.S., at
328. The Court today, following Griffith, concludes that
Gant’s new rule applies here. And to that extent I agree
with its decision.
II
The Court goes on, however, to decide how Gant’s new
rule will apply. And here it adds a fatal twist. While
conceding that, like the search in Gant, this search vio
lated the Fourth Amendment, it holds that, unlike Gant,
this defendant is not entitled to a remedy. That is be
cause the Court finds a new “good faith” exception which
prevents application of the normal remedy for a Fourth
Amendment violation, namely, suppression of the illegally
seized evidence. Weeks v. United States, 232 U.S. 383
(1914); Mapp v. Ohio, 367 U.S. 643 (1961). Leaving Davis
with a right but not a remedy, the Court “keep[s] the word
of promise to our ear” but “break[s] it to our hope.”
A
At this point I can no longer agree with the Court. A
new “good faith” exception and this Court’s retroactivity
decisions are incompatible. For one thing, the Court’s
distinction between (1) retroactive application of a new
Cite as: 564 U. S. ____ (2011) 3
BREYER, J., dissenting
rule and (2) availability of a remedy is highly artificial and
runs counter to precedent. To determine that a new rule
is retroactive is to determine that, at least in the normal
case, there is a remedy. As we have previously said, the
“source of a ‘new rule’ is the Constitution itself, not any
judicial power to create new rules of law”; hence, “[w]hat
we are actually determining when we assess the ‘retroac
tivity’ of a new rule is not the temporal scope of a newly
announced right, but whether a violation of the right that
occurred prior to the announcement of the new rule will
entitle a criminal defendant to the relief sought.” Dan
forth v. Minnesota, 552 U.S. 264, 271 (2008). The Court’s
“good faith” exception (unlike, say, inevitable discovery, a
remedial doctrine that applies only upon occasion) creates
“a categorical bar to obtaining redress” in every case pend
ing when a precedent is overturned. Ante, at 13–14.
For another thing, the Court’s holding re-creates the
very problems that led the Court to abandon Linkletter’s
approach to retroactivity in favor of Griffith’s. One such
problem concerns workability. The Court says that its
exception applies where there is “objectively reasonable”
police “reliance on binding appellate precedent.” Ante, at
1, 19. But to apply the term “binding appellate precedent”
often requires resolution of complex questions of degree.
Davis conceded that he faced binding anti-Gant precedent
in the Eleventh Circuit. But future litigants will be less
forthcoming. Ante, at 18. Indeed, those litigants will now
have to create distinctions to show that previous Circuit
precedent was not “binding” lest they find relief foreclosed
even if they win their constitutional claim.
At the same time, Fourth Amendment precedents fre
quently require courts to “slosh” their “way through the
factbound morass of ‘reasonableness.’ ” Scott v. Harris,
550 U.S. 372, 383 (2007). Suppose an officer’s conduct is
consistent with the language of a Fourth Amendment rule
that a court of appeals announced in a case with clearly
4 DAVIS v. UNITED STATES
BREYER, J., dissenting
distinguishable facts? Suppose the case creating the rele
vant precedent did not directly announce any general
rule but involved highly analogous facts? What about a
rule that all other jurisdictions, but not the defendant’s
jurisdiction, had previously accepted? What rules can be
developed for determining when, where, and how these
different kinds of precedents do, or do not, count as rele
vant “binding precedent”? The Linkletter-like result is
likely complex legal argument and police force confusion.
See Williams v. United States, 401 U.S. 646, 676 (1971)
(opinion of Harlan, J.) (describing trying to follow Linklet
ter decisions as “almost as difficult” as trying to follow “the
tracks made by a beast of prey in search of its intended
victim”).
Another such problem concerns fairness. Today’s hold
ing, like that in Linkletter, “violates basic norms of con
stitutional adjudication.” Griffith, supra, at 322. It treats
the defendant in a case announcing a new rule one way
while treating similarly situated defendants whose cases
are pending on appeal in a different way. See ante, at 18–
19. Justice Harlan explained why this approach is wrong
when he said:
“We cannot release criminals from jail merely because
we think one case is a particularly appropriate one [to
announce a constitutional doctrine] . . . . Simply fish
ing one case from the stream of appellate review, us
ing it as a vehicle for pronouncing new constitutional
standards, and then permitting a stream of similar
cases subsequently to flow by unaffected by that new
rule constitute an indefensible departure from [our
ordinary] model of judicial review.” Williams, supra,
at 679.
And in Griffith, the Court “embraced to a significant ex
tent the comprehensive analysis presented by Justice
Harlan.” 479 U.S., at 322.
Cite as: 564 U. S. ____ (2011) 5
BREYER, J., dissenting
Of course, the Court may, as it suggests, avoid this un
fairness by refusing to apply the exclusionary rule even
to the defendant in the very case in which it announces a
“new rule.” But that approach would make matters worse.
What would then happen in the lower courts? How would
courts of appeals, for example, come to reconsider their
prior decisions when other circuits’ cases lead them to
believe those decisions may be wrong? Why would a de
fendant seek to overturn any such decision? After all, if
the (incorrect) circuit precedent is clear, then even if
the defendant wins (on the constitutional question), he
loses (on relief). See Stovall v. Denno, 388 U.S. 293, 301
(1967). To what extent then could this Court rely upon
lower courts to work out Fourth Amendment differences
among themselves—through circuit reconsideration of a
precedent that other circuits have criticized? See Ari-
zona v. Evans, 514 U.S. 1, 23, n. 1 (1995) (GINSBURG, J.,
dissenting).
B
Perhaps more important, the Court’s rationale for creat
ing its new “good faith” exception threatens to undermine
well-settled Fourth Amendment law. The Court correctly
says that pre-Gant Eleventh Circuit precedent had held
that a Gant-type search was constitutional; hence the
police conduct in this case, consistent with that precedent,
was “innocent.” Ante, at 10. But the Court then finds this
fact sufficient to create a new “good faith” exception to the
exclusionary rule. It reasons that the “sole purpose” of the
exclusionary rule “is to deter future Fourth Amendment
violations,” ante, at 6. The “deterrence benefits of exclu
sion vary with the culpability of the law enforcement
conduct at issue,” ante, at 8 (internal quotation marks and
brackets omitted). Those benefits are sufficient to jus
tify exclusion where “police exhibit deliberate, reckless,
or grossly negligent disregard for Fourth Amendment
6 DAVIS v. UNITED STATES
BREYER, J., dissenting
rights,” ibid. (internal quotation marks omitted). But
those benefits do not justify exclusion where, as here, the
police act with “simple, isolated negligence” or an “objec
tively reasonable good-faith belief that their conduct is
lawful,” ibid. (internal quotation marks omitted).
If the Court means what it says, what will happen to the
exclusionary rule, a rule that the Court adopted nearly a
century ago for federal courts, Weeks v. United States, 232
U.S. 383, and made applicable to state courts a half cen
tury ago through the Fourteenth Amendment, Mapp v.
Ohio, 367 U.S. 643? The Court has thought of that rule
not as punishment for the individual officer or as repara
tion for the individual defendant but more generally as
an effective way to secure enforcement of the Fourth
Amendment’s commands. Weeks, supra, at 393 (without
the exclusionary rule, the Fourth Amendment would be “of
no value,” and “might as well be stricken from the Consti
tution”). This Court has deviated from the “suppression”
norm in the name of “good faith” only a handful of times
and in limited, atypical circumstances: where a magistrate
has erroneously issued a warrant, United States v. Leon,
468 U.S. 897 (1984); where a database has erroneously
informed police that they have a warrant, Arizona v.
Evans, 514 U.S. 1 (1995), Herring v. United States, 555
U.S. 135 (2009); and where an unconstitutional statute
purported to authorize the search, Illinois v. Krull, 480
U.S. 340 (1987). See Herring, supra, at 142 (“good faith”
exception inaptly named).
The fact that such exceptions are few and far between is
understandable. Defendants frequently move to suppress
evidence on Fourth Amendment grounds. In many, per
haps most, of these instances the police, uncertain of how
the Fourth Amendment applied to the particular factual
circumstances they faced, will have acted in objective good
faith. Yet, in a significant percentage of these instances,
courts will find that the police were wrong. And, unless
Cite as: 564 U. S. ____ (2011) 7
BREYER, J., dissenting
the police conduct falls into one of the exceptions previ
ously noted, courts have required the suppression of the
evidence seized. 1 W. LaFave, Search and Seizure §1.3,
pp. 103–104 (4th ed. 2004) (“good faith” exception has not
yet been applied to warrantless searches and seizures
beyond the “rather special situations” of Evans, Herring,
and Krull). See Valdes, Frequency and Success: An Em
pirical Study of Criminal Law Defenses, Federal Constitu
tional Evidentiary Claims, and Plea Negotiations, 153
U. Pa. L. Rev. 1709, 1728 (2005) (suppression motions are
filed in approximately 7% of criminal cases; approximately
12% of suppression motions are successful); LaFave, su
pra, at 64 (“Surely many more Fourth Amendment viola
tions result from carelessness than from intentional con
stitutional violations”); Stewart, The Road to Mapp v.
Ohio and Beyond: The Origins, Development and Future
of the Exclusionary Rule in Search-and-Seizure Cases, 83
Colum. L. Rev. 1365, 1389 (1983) (“[T]he vast majority of
fourth amendment violations . . . [are] motivated by com
mendable zeal, not condemnable malice”).
But an officer who conducts a search that he believes
complies with the Constitution but which, it ultimately
turns out, falls just outside the Fourth Amendment’s
bounds is no more culpable than an officer who follows
erroneous “binding precedent.” Nor is an officer more
culpable where circuit precedent is simply suggestive
rather than “binding,” where it only describes how to treat
roughly analogous instances, or where it just does not
exist. Thus, if the Court means what it now says, if it
would place determinative weight upon the culpability of
an individual officer’s conduct, and if it would apply the
exclusionary rule only where a Fourth Amendment viola
tion was “deliberate, reckless, or grossly negligent,” then
the “good faith” exception will swallow the exclusionary
rule. Indeed, our broad dicta in Herring—dicta the Court
repeats and expands upon today—may already be leading
8 DAVIS v. UNITED STATES
BREYER, J., dissenting
lower courts in this direction. See United States v. Julius,
610 F.3d 60, 66–67 (CA2 2010) (assuming warrantless
search was unconstitutional and remanding for District
Court to “perform the cost/benefit analysis required by
Herring” and to consider “whether the degree of police
culpability in this case rose beyond mere . . . negligence”
before ordering suppression); United States v. Master, 614
F.3d 236, 243 (CA6 2010) (“[T]he Herring Court’s empha
sis seems weighed more toward preserving evidence for
use in obtaining convictions, even if illegally seized . . .
unless the officers engage in ‘deliberate, reckless, or
grossly negligent conduct’ ” (quoting Herring, supra, at
144)). Today’s decision will doubtless accelerate this
trend.
Any such change (which may already be underway)
would affect not “an exceedingly small set of cases,” ante,
at 18, but a very large number of cases, potentially many
thousands each year. See Valdes, supra, at 1728. And
since the exclusionary rule is often the only sanction avail
able for a Fourth Amendment violation, the Fourth
Amendment would no longer protect ordinary Americans
from “unreasonable searches and seizures.” See Wolf v.
Colorado, 338 U.S. 25, 41 (1949) (Murphy, J., dissenting)
(overruled by Mapp v. Ohio, 367 U.S. 643 (1961)) (In
many circumstances, “there is but one alternative to the
rule of exclusion. That is no sanction at all”); Herring,
supra, at 152 (GINSBURG, J., dissenting) (the exclusionary
rule is “an essential auxiliary” to the Fourth Amendment).
It would become a watered-down Fourth Amendment,
offering its protection against only those searches and sei
zures that are egregiously unreasonable.
III
In sum, I fear that the Court’s opinion will undermine
the exclusionary rule. And I believe that the Court
wrongly departs from Griffith regardless. Instead I would
Cite as: 564 U. S. ____ (2011) 9
BREYER, J., dissenting
follow Griffith, apply Gant’s rule retroactively to this
case, and require suppression of the evidence. Such an ap
proach is consistent with our precedent, and it would
indeed affect no more than “an exceedingly small set of
cases.” Ante, at 18.
For these reasons, with respect, I dissent | In 2009, in Arizona v. Gant, 556 U. S. this Court held that a police search of an automobile without a war rant violates the Fourth Amendment if the police have pre viously removed the automobile’s occupants and placed them securely in a squad car. The present case involves these same circumstances, and it was pending on appeal when this Court decided Gant. Because Gant represents a “shift” in the Court’s Fourth Amendment jurisprudence, ante, at 1, we must decide whether and how Gant’s new rule applies here. I I agree with the Court about whether Gant’s new rule applies. It does apply. Between 1965, when the Court decided and 1987, when it decided that conclusion would have been more difficult to reach. Under Linkletter, the Court determined a new rule’s retroactivity by looking to several different factors, including whether the new rule represented a “clear break” with the past and the degree of “reliance by law enforcement authorities on the old standards.” 248–249 (1969) (also 2 DAVIS v. UNITED STATES BREYER, J., dissenting citing “the purpose to be served by the new standards” and “the effect on the administration of justice” as factors ). And the Court would often not apply the new rule to identical cases still pend ing on appeal. See After 22 years of struggling with its Linkletter approach, however, the Court decided in that Linkletter had proved unfair and unworkable. It then substituted a clearer approach, stating that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” 479 U.S., at 328. The Court today, following concludes that Gant’s new rule applies here. And to that extent I agree with its decision. II The Court goes on, however, to decide how Gant’s new rule will apply. And here it adds a fatal twist. While conceding that, like the search in Gant, this search vio lated the Fourth Amendment, it holds that, unlike Gant, this defendant is not entitled to a remedy. That is be cause the Court finds a new “good faith” exception which prevents application of the normal remedy for a Fourth Amendment violation, namely, suppression of the illegally seized evidence. (1914); Leaving Davis with a right but not a remedy, the Court “keep[s] the word of promise to our ear” but “break[s] it to our hope.” A At this point I can no longer agree with the Court. A new “good faith” exception and this Court’s retroactivity decisions are incompatible. For one thing, the Court’s distinction between (1) retroactive application of a new Cite as: 564 U. S. (2011) 3 BREYER, J., dissenting rule and (2) availability of a remedy is highly artificial and runs counter to precedent. To determine that a new rule is retroactive is to determine that, at least in the normal case, there is a remedy. As we have previously said, the “source of a ‘new rule’ is the Constitution itself, not any judicial power to create new rules of law”; hence, “[w]hat we are actually determining when we assess the ‘retroac tivity’ of a new rule is not the temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief sought.” Dan The Court’s “good faith” exception (unlike, say, inevitable discovery, a remedial doctrine that applies only upon occasion) creates “a categorical bar to obtaining redress” in every case pend ing when a precedent is overturned. Ante, at 13–14. For another thing, the Court’s holding re-creates the very problems that led the Court to abandon Linkletter’s approach to retroactivity in favor of ’s. One such problem concerns workability. The Court says that its exception applies where there is “objectively reasonable” police “reliance on binding appellate precedent.” Ante, at 1, 19. But to apply the term “binding appellate precedent” often requires resolution of complex questions of degree. Davis conceded that he faced binding anti-Gant precedent in the Eleventh Circuit. But future litigants will be less forthcoming. Ante, at 18. Indeed, those litigants will now have to create distinctions to show that previous Circuit precedent was not “binding” lest they find relief foreclosed even if they win their constitutional claim. At the same time, Fourth Amendment precedents fre quently require courts to “slosh” their “way through the factbound morass of ‘reasonableness.’ ” Suppose an officer’s conduct is consistent with the language of a Fourth Amendment rule that a court of appeals announced in a case with clearly 4 DAVIS v. UNITED STATES BREYER, J., dissenting distinguishable facts? Suppose the case creating the rele vant precedent did not directly announce any general rule but involved highly analogous facts? What about a rule that all other jurisdictions, but not the defendant’s jurisdiction, had previously accepted? What rules can be developed for determining when, where, and how these different kinds of precedents do, or do not, count as rele vant “binding precedent”? The Linkletter-like result is likely complex legal argument and police force confusion. See (opinion of Harlan, J.) (describing trying to follow Linklet ter decisions as “almost as difficult” as trying to follow “the tracks made by a beast of prey in search of its intended victim”). Another such problem concerns fairness. Today’s hold ing, like that in Linkletter, “violates basic norms of con stitutional adjudication.” It treats the defendant in a case announcing a new rule one way while treating similarly situated defendants whose cases are pending on appeal in a different way. See ante, at 18– 19. Justice Harlan explained why this approach is wrong when he said: “We cannot release criminals from jail merely because we think one case is a particularly appropriate one [to announce a constitutional doctrine] Simply fish ing one case from the stream of appellate review, us ing it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule constitute an indefensible departure from [our ordinary] model of judicial review.” at 679. And in the Court “embraced to a significant ex tent the comprehensive analysis presented by Justice Harlan.” 479 U.S., Cite as: 564 U. S. (2011) 5 BREYER, J., dissenting Of course, the Court may, as it suggests, avoid this un fairness by refusing to apply the exclusionary rule even to the defendant in the very case in which it announces a “new rule.” But that approach would make matters worse. What would then happen in the lower courts? How would courts of appeals, for example, come to reconsider their prior decisions when other circuits’ cases lead them to believe those decisions may be wrong? Why would a de fendant seek to overturn any such decision? After all, if the (incorrect) circuit precedent is clear, then even if the defendant wins (on the constitutional question), he loses (on relief). See (1967). To what extent then could this Court rely upon lower courts to work out Fourth Amendment differences among themselves—through circuit reconsideration of a precedent that other circuits have criticized? See Ari- (GINSBURG, J., dissenting). B Perhaps more important, the Court’s rationale for creat ing its new “good faith” exception threatens to undermine well-settled Fourth Amendment law. The Court correctly says that pre-Gant Eleventh Circuit precedent had held that a Gant-type search was constitutional; hence the police conduct in this case, consistent with that precedent, was “innocent.” Ante, at 10. But the Court then finds this fact sufficient to create a new “good faith” exception to the exclusionary rule. It reasons that the “sole purpose” of the exclusionary rule “is to deter future Fourth Amendment violations,” ante, at 6. The “deterrence benefits of exclu sion vary with the culpability of the law enforcement conduct at issue,” ante, at 8 (internal quotation marks and brackets omitted). Those benefits are sufficient to jus tify exclusion where “police exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment 6 DAVIS v. UNITED STATES BREYER, J., dissenting rights,” But those benefits do not justify exclusion where, as here, the police act with “simple, isolated negligence” or an “objec tively reasonable good-faith belief that their conduct is lawful,” If the Court means what it says, what will happen to the exclusionary rule, a rule that the Court adopted nearly a century ago for federal courts, 232 U.S. and made applicable to state courts a half cen tury ago through the Fourteenth Amendment, Mapp v. Ohio, ? The Court has thought of that rule not as punishment for the individual officer or as repara tion for the individual defendant but more generally as an effective way to secure enforcement of the Fourth Amendment’s commands. (without the exclusionary rule, the Fourth Amendment would be “of no value,” and “might as well be stricken from the Consti tution”). This Court has deviated from the “suppression” norm in the name of “good faith” only a handful of times and in limited, atypical circumstances: where a magistrate has erroneously issued a warrant, United ; where a database has erroneously informed police that they have a warrant, Arizona v. Evans, v. United States, 555 U.S. 135 (2009); and where an unconstitutional statute purported to authorize the search, Illinois v. Krull, 480 U.S. 340 (1987). See (“good faith” exception inaptly named). The fact that such exceptions are few and far between is understandable. Defendants frequently move to suppress evidence on Fourth Amendment grounds. In many, per haps most, of these instances the police, uncertain of how the Fourth Amendment applied to the particular factual circumstances they faced, will have acted in objective good faith. Yet, in a significant percentage of these instances, courts will find that the police were wrong. And, unless Cite as: 564 U. S. (2011) 7 BREYER, J., dissenting the police conduct falls into one of the exceptions previ ously noted, courts have required the suppression of the evidence seized. 1 W. LaFave, Search and Seizure pp. 103–104 (4th ed. 2004) (“good faith” exception has not yet been applied to warrantless searches and seizures beyond the “rather special situations” of Evans, and Krull). See Frequency and Success: An Em pirical Study of Criminal Law Defenses, Federal Constitu tional Evidentiary Claims, and Plea Negotiations, 153 U. Pa. L. Rev. 1709, 1728 (2005) (suppression motions are filed in approximately 7% of criminal cases; approximately 12% of suppression motions are successful); LaFave, su pra, at 64 (“Surely many more Fourth Amendment viola tions result from carelessness than from intentional con stitutional violations”); Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum. L. Rev. 1365, 1389 (1983) (“[T]he vast majority of fourth amendment violations [are] motivated by com mendable zeal, not condemnable malice”). But an officer who conducts a search that he believes complies with the Constitution but which, it ultimately turns out, falls just outside the Fourth Amendment’s bounds is no more culpable than an officer who follows erroneous “binding precedent.” Nor is an officer more culpable where circuit precedent is simply suggestive rather than “binding,” where it only describes how to treat roughly analogous instances, or where it just does not exist. Thus, if the Court means what it now says, if it would place determinative weight upon the culpability of an individual officer’s conduct, and if it would apply the exclusionary rule only where a Fourth Amendment viola tion was “deliberate, reckless, or grossly negligent,” then the “good faith” exception will swallow the exclusionary rule. Indeed, our broad dicta in —dicta the Court repeats and expands upon today—may already be leading 8 DAVIS v. UNITED STATES BREYER, J., dissenting lower courts in this direction. See United (assuming warrantless search was unconstitutional and remanding for District Court to “perform the cost/benefit analysis required by ” and to consider “whether the degree of police culpability in this case rose beyond mere negligence” before ordering suppression); United States v. Master, 614 F.3d 236, 243 (“[T]he Court’s empha sis seems weighed more toward preserving evidence for use in obtaining convictions, even if illegally seized unless the officers engage in ‘deliberate, reckless, or grossly negligent conduct’ ” (quoting at 144)). Today’s decision will doubtless accelerate this trend. Any such change (which may already be underway) would affect not “an exceedingly small set of cases,” ante, at 18, but a very large number of cases, potentially many thousands each year. See And since the exclusionary rule is often the only sanction avail able for a Fourth Amendment violation, the Fourth Amendment would no longer protect ordinary Americans from “unreasonable searches and seizures.” See Wolf v. Colorado, ) (In many circumstances, “there is but one alternative to the rule of exclusion. That is no sanction at all”); (the exclusionary rule is “an essential auxiliary” to the Fourth Amendment). It would become a watered-down Fourth Amendment, offering its protection against only those searches and sei zures that are egregiously unreasonable. III In sum, I fear that the Court’s opinion will undermine the exclusionary rule. And I believe that the Court wrongly departs from regardless. Instead I would Cite as: 564 U. S. (2011) 9 BREYER, J., dissenting follow apply Gant’s rule retroactively to this case, and require suppression of the evidence. Such an ap proach is consistent with our precedent, and it would indeed affect no more than “an exceedingly small set of cases.” Ante, at 18. For these reasons, with respect, I dissent |
Justice Rehnquist | dissenting | false | Braden v. 30th Judicial Circuit Court of Ky. | 1973-02-28T00:00:00 | null | https://www.courtlistener.com/opinion/108730/braden-v-30th-judicial-circuit-court-of-ky/ | https://www.courtlistener.com/api/rest/v3/clusters/108730/ | 1,973 | 1972-065 | 2 | 6 | 3 | Today the Court overrules Ahrens v. Clark, 335 U.S. 188 (1948), which construed the legislative intent of Congress in enacting the lineal predecessor of 28 U.S. C. § 2241. Although considerations of "convenience" may support the result reached in this case, those considerations are, in this context, appropriate for Congress, not this Court, to make. Congress has not legislatively overruled Ahrens, and subsequent "developments" are simply irrelevant to the judicial task of ascertaining the legislative intent of Congress in providing, in 1867, that federal district courts may issue writs of habeas corpus "within their respective jurisdictions" for prisoners in the custody of state authorities. The Court, however, not only accomplishes a feat of judicial prestidigitation but, without discussion or analysis, explicitly extends the scope of Peyton v. Rowe, 391 U.S. 54 (1968), and implicitly rejects Ex parte Royall, 117 U.S. 241 (1886).
I
In order to appreciate the full impact of the Court's decision, a brief reiteration of the procedural stance of the case at the time the petition for habeas corpus was filed is necessary. Petitioner is incarcerated in Alabama pursuant to a state court judgment, the validity of which petitioner does not attack. Petitioner had been indicted in Kentucky and a detainer filed by Kentucky authorities with the Alabama authorities. Kentucky had conducted no proceedings against petitioner; no judgment of conviction on the Kentucky indictment had been obtained. From Alabama, petitioner requested Kentucky authorities to ask the Alabama authorities to deliver *503 him to Kentucky so that petitioner could be tried on the Kentucky indictment. No action was taken on this request, and the Kentucky Supreme Court refused to issue a writ of mandamus requiring Kentucky authorities to request that Alabama deliver petitioner for trial in Kentucky. Petitioner then filed the instant habeas corpus proceeding in Kentucky, contending that he was "in custody" of Kentucky authorities and that the "custody" was illegal because he had been denied his right to a speedy trial. Petitioner is not seeking to attack collaterally a state judgment of conviction in federal court. In substance, petitioner is seeking, prior to trial, to force the Commonwealth of Kentucky to litigate a question that otherwise could only be raised as an absolute defense in a state criminal proceeding against petitioner.
II
The first inquiry is whether a state prisoner can, prior to trial, raise the claim of the denial of a right to a speedy trial by petitioning a federal court for writ of habeas corpus. The Court reasons that since Peyton v. Rowe, supra, "discarded the prematurity doctrine," ante, at 488, "petitioner is entitled to raise his speedy trial claim on federal habeas corpus."
Petitioner filed this petition alleging federal jurisdiction pursuant to 28 U.S. C. §§ 2241, 2254. Section 2254 pertains only to a prisoner in custody pursuant to a judgment of conviction of a state court; in the context of the attempt to assert a right to a speedy trial, there is simply no § 2254 trap to "ensnare" petitioner, such as the court below felt existed. The issue here is whether habeas corpus is warranted under § 2241 (c) (3); that section empowers district courts to issue the writ, inter alia, before a judgment is rendered in a criminal proceeding. It is in the context of an application for federal habeas *504 corpus by a state prisoner prior to any trial in a state court that the effect of the instant decision must be analyzed.
The Court reasons that since Smith v. Hooey, 393 U.S. 374 (1969), held that a State must, consistent with the Sixth and Fourteenth Amendments, "make a diligent, good-faith effort to bring" a prisoner to trial on a state indictment even though he is incarcerated in another jurisdiction, id., at 383, and, since Peyton v. Rowe, supra, overruled "the prematurity doctrine," therefore, a prisoner can attack in a federal habeas corpus proceeding the validity of an indictment lodged against him in one State even though he is imprisoned in another. I cannot agree with this reasoning.
In Smith, this Court held that a State must make an effort to try a person even though he was incarcerated in another jurisdiction. That case did not, however, involve federal habeas corpus. It came here on certiorari after the state court had denied a petition for a writ of mandamus seeking to have the underlying indictment dismissed. The Texas Supreme Court had ruled that the state courts had no power to order the federal prisoner produced for trial on the state indictment. This Court reversed, holding that, in view of the Sixth and Fourteenth Amendment guarantees of a speedy trial, the State must, after demand therefor, attempt to obtain the prisoner from the sovereignty with custody over the prisoner.
It by no means follows, however, that a state prisoner can assert the right to a speedy trial in a federal district court. The fundamental flaw in the reasoning of the Court is the assumption that since a prisoner has some "right" under Smith v. Hooey, supra, he must have some forum in which affirmatively to assert that right, and that therefore the right may be vindicated in a federal district court under § 2241 (c) (3). Smith v. Hooey did *505 not, however, establish that a right distinct from the right to a speedy trial existed. It merely held that a State could not totally rely on the fact that it could not order that a prisoner be brought from another jurisdiction as a justification for not attempting to try the defendant as expeditiously as possible. The right to a speedy trial is, like other constitutional rights, a defense to a criminal charge, but one which, unlike others, increases in terms of potential benefit to the accused with the passage of time. Barker v. Wingo, 407 U.S. 514 (1972). The fact that a State must make an effort to obtain a defendant from another sovereign for trial but fails, after demand, to make an effort would weigh heavily in the defendant's favor. But Smith v. Hooey does not necessarily imply that federal courts may, as the District Court did in this case, in effect, issue an injunction requiring a state court to conduct a criminal trial. If the State fails to perform its duty, Smith v. Hooey, it must face the consequences of possibly not obtaining a conviction, Barker v. Wingo. But the fact that the State has a duty by no means leads to the conclusion that the failure to perform that duty can be raised by a prospective defendant on federal habeas corpus in advance of trial. The history of habeas corpus and the principles of federalism strongly support the approach established by Ex parte Royall, supra, that, absent extraordinary circumstances, federal habeas corpus should not be used to adjudicate the merits of an affirmative defense to a state criminal charge prior to a judgment of conviction by a state court.
The Court's reasoning for allowing a state prisoner to resort to federal habeas corpus is that the prisoner is attacking the validity of a "future custody." The Court relies on Peyton to justify federal jurisdiction. Peyton, however, was in a significantly different procedural posture from the instant case. There, the Court held that a *506 state prisoner could challenge the constitutional validity of a sentence which he had not yet begun to serve when he was currently incarcerated pursuant to a valid conviction and sentence, but the sentence he sought to attack was to run consecutively to the valid sentence. Even though a person may be "in custody" for purposes of §§ 2241 (c) (3), or 2254, if he has not yet begun to serve a sentence entered after a judgment of conviction, as the Court held in Peyton, it by no means follows that he is similarly "in custody" when no judgment of conviction has been entered or even any trial on the underlying charge conducted. The Court's suggestion that a person may challenge by way of federal habeas corpus any custody that might possibly be imposed at some time in the "future," which suggestion unwarrantedly assumes both that a constitutional defense will be rejected and that the jury will convict, is not supported by the language or reasoning of Peyton. Mr. Chief Justice Warren, writing for the Court in Peyton, emphasized the role of federal habeas corpus for state prisoners as "substantially a post-conviction device," 391 U.S., at 60, and "the instrument for resolving fact issues not adequately developed in the original proceedings." Id., at 63. The Court there stated that the demise of the McNally rule would allow prisoners "the opportunity to challenge defective convictions." Id., at 65.
The Court here glosses over the disparate procedural posture of this case, and merely asserts, without analyzing the historical function of federal habeas corpus for state prisoners, that the rationale of Peyton is applicable to a pretrial, preconviction situation. Citation to that decision cannot obscure the fact that the Court here makes a significant departure from previous decisions, a departure that certainly requires analysis and justification more detailed than that which the Court puts forth.
*507 There is no doubt that a prisoner such as petitioner can assert, by appropriate motion in the courts of the State in which the indictment was handed down, that he should be brought to trial on that charge. Smith v. Hooey, supra. There is also no doubt that such a prisoner may petition a federal district court for a writ of habeas corpus prior to trial. See 28 U.S. C. § 2241 (c) (3). What the Court here disregards, however, is almost a century of decisions of this Court to the effect that federal habeas corpus for state prisoners, prior to conviction, should not be granted absent truly extraordinary circumstances.
In Ex parte Royall, supra, the petitioner was indicted in state court for selling a bond coupon without a license. Prior to trial on that indictment, he petitioned in federal court for a writ of habeas corpus, contending that the statute upon which the indictment was predicated violated the contract clause, insofar as it was applied to owners of coupons. In holding that the (then) Circuit Court had the power to issue the writ but had properly exercised its discretion not to do so, the Court wrote:
"That discretion should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the States, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution." 117 U.S., at 251.
The judicial approach set forth in Ex parte Royall that federal courts should not, absent extraordinary circumstances, interfere with the judicial administration and process of state courts prior to trial and conviction, even though the state prisoner claims that he is held in violation of the Constitutionhas been consistently followed. Cook v. Hart, 146 U.S. 183 (1892) (custody *508 alleged to violate Art. 4, § 2); New York v. Eno, 155 U.S. 89 (1894) (custody alleged to violate Supremacy Clause); Whitten v. Tomlinson, 160 U.S. 231 (1895) (custody alleged in violation of Constitution due to improper extradition); Drury v. Lewis, 200 U.S. 1 (1906) (custody alleged to violate Supremacy Clause). Cf. Ex parte Fonda, 117 U.S. 516 (1886); In re Duncan, 139 U.S. 449 (1891); In re Wood, 140 U.S. 278 (1891); In re Frederich, 149 U.S. 70 (1893). The situations in which pretrial or preconviction federal interference by way of habeas corpus with state criminal processes is justified involve the lack of jurisdiction, under the Supremacy Clause, for the State to bring any criminal charges against the petitioner. Wildenhus's Case, 120 U.S. 1 (1887); In re Loney, 134 U.S. 372 (1890); In re Neagle, 135 U.S. 1 (1890).
The effect of today's ruling that federal habeas corpus prior to trial is appropriate because it will determine the validity of custody that may be imposed in actuality only sometime in the indefinite future constitutes an unjustifiable federal interference with the judicial administration of a State's criminal laws. The use of federal habeas corpus is, presumably, limited neither to the interstate detainer situation nor to the constitutional rights secured by the Sixth and Fourteenth Amendments. The same reasoning would apply to a state prisoner who alleges that "future custody" will result because the State plans to introduce at a criminal trial sometime in the future a confession allegedly obtained in violation of the Fifth and Fourteenth Amendments, or evidence obtained in violation of the Fourth and Fourteenth Amendments. I thoroughly disagree with this conversion of federal habeas corpus into a pretrial-motion forum for state prisoners.
*509 III
In addition to sanctioning an expansion of when a federal court may interfere with state judicial administration, the Court overrules Ahrens v. Clark, supra, and expands the parameters of which federal courts may so intervene. In Ahrens, the Court held that "the presence within the territorial jurisdiction of the District Court of the person detained is [a] prerequisite to filing a petition for writ of habeas corpus." 335 U.S., at 189. The Court construed the phrase "within their respective jurisdictions" to mean that Congress intended to limit the jurisdiction of a district court to prisoners in custody within its territorial jurisdiction. Id., at 193.
The Court here says that the "language" of Ahrens "indicates" the result reached below. The explicit holding of the Court, however, is plainly much more than an "indication."
"Thus the view that the jurisdiction of the District Court to issue the writ in cases such as this is restricted to those petitioners who are confined or detained within the territorial jurisdiction of the court is supported by the language of the statute, by considerations of policy, and by the legislative history of the enactment. We therefore do not feel free to weigh the policy considerations which are advanced for giving district courts discretion in cases like this. If that concept is to be imported into this statute, Congress must do so." Id., at 192-193 (emphasis added; footnote omitted).
The result reached today may be desirable from the point of view of sound judicial administration, see Ahrens v. Clark, supra, at 191; Nelson v. George, 399 U.S. 224, 228 n. 5 (1970). It is the function of this Court, however, to ascertain the intent of Congress as to the meaning *510 of "within their respective jurisdictions." Having completed that task in Ahrens, it is the function of Congress to amend the statute if this Court misinterpreted congressional intent or if subsequent developments suggest the desirability, from a policy viewpoint, of alterations in the statute. See Cleveland v. United States, 329 U.S. 14 (1946). We noted in Nelson that the resolution of any apparent dilemma "caused" by this Court's holding in Ahrens is appropriately one to be undertaken by Congress. 399 U.S., at 228 n. 5. Legislative "inaction" in amending a statute to comport with this Court's evaluation of "[s]ound judicial administration" hardly warrants the disingenuous reading of a previous decision to achieve the result that Congress, despite judicial prodding, has refused to mandate. However impatient we may be with a federal statute which sometimes may fail to provide a remedy for every situation, one would have thought it inappropriate for the Court to amend the statute by judicial action.
The Court lists several "developments" that have somehow undercut the validity, in the Court's opinion, of the statutory interpretation of the phrase "within their respective jurisdictions." As the amended § 2255 is relevant only to federal prisoners collaterally attacking a conviction, and as § 2241 (d) applies only to intrastate jurisdiction, the relevance of the amendments with respect to the jurisdictional requirement of § 2241 (c) (3) is not a little obscure. The interpretation of the phrase "within their respective jurisdictions" in Ahrens is hardly incompatible with these recent amendments of statutes dealing with situations not involving the interstate transportation of state prisoners. The further argument that Burns v. Wilson, 346 U.S. 137 (1953), "undermines" Ahrens overlooks the fact that the Court in Ahrens specifically reserved that question, 335 U.S., at 192 n. 4, the resolution of which is by no means an explicit rejection *511 of Ahrens. Finally, the fact that this Court has expanded the notion of "custody" for habeas corpus purposes hardly supports, much less compels, the rejection of a statutory construction of an unrelated phrase.
In the final analysis, the Court apparently reasons that since Congress amended other statutory provisions dealing with habeas corpus, therefore the congressional intent with respect to the meaning of an unamended phrase must somehow have changed since the Court previously ascertained that intent. This approach to statutory construction, however, justifies with as much, if not more, force, the result reached below: Congress, aware of this Court's interpretation of the phrase in Ahrens, deliberately chose not to amend § 2241 (c) (3) when it selectively amended other statutory provisions dealing with federal habeas corpus. Indeed, the most recent indications of legislative intent support this conclusion rather than that advanced by the Court. See H. R. Rep. No. 1894, 89th Cong., 2d Sess., 1-2 (1966); S. Rep. No. 1502, 89th Cong., 2d Sess. (1966). See also n. 13, ante, at 497.
I would adhere to this Court's interpretation of the legislative intent set forth in Ahrens v. Clark, supra, and leave it to Congress, during the process of considering legislation to amend this section, to consider and to weigh the various policy factors that the Court today weighs for itself.
| Today the Court overrules which construed the legislative intent of Congress in enacting the lineal predecessor of 28 U.S. C. 2241. Although considerations of "convenience" may support the result reached in this case, those considerations are, in this context, appropriate for Congress, not this Court, to make. Congress has not legislatively overruled Ahrens, and subsequent "developments" are simply irrelevant to the judicial task of ascertaining the legislative intent of Congress in providing, in 1867, that federal district courts may issue writs of habeas corpus "within their respective jurisdictions" for prisoners in the custody of state authorities. The Court, however, not only accomplishes a feat of judicial prestidigitation but, without discussion or analysis, explicitly extends the scope of and implicitly rejects Ex parte I In order to appreciate the full impact of the Court's decision, a brief reiteration of the procedural stance of the case at the time the petition for habeas corpus was filed is necessary. Petitioner is incarcerated in Alabama pursuant to a state court judgment, the validity of which petitioner does not attack. Petitioner had been indicted in Kentucky and a detainer filed by Kentucky authorities with the Alabama authorities. Kentucky had conducted no proceedings against petitioner; no judgment of conviction on the Kentucky indictment had been obtained. From Alabama, petitioner requested Kentucky authorities to ask the Alabama authorities to deliver *503 him to Kentucky so that petitioner could be tried on the Kentucky indictment. No action was taken on this request, and the Kentucky Supreme Court refused to issue a writ of mandamus requiring Kentucky authorities to request that Alabama deliver petitioner for trial in Kentucky. Petitioner then filed the instant habeas corpus proceeding in Kentucky, contending that he was "in custody" of Kentucky authorities and that the "custody" was illegal because he had been denied his right to a speedy trial. Petitioner is not seeking to attack collaterally a state judgment of conviction in federal court. In substance, petitioner is seeking, prior to trial, to force the Commonwealth of Kentucky to litigate a that otherwise could only be raised as an absolute defense in a state criminal proceeding against petitioner. II The first inquiry is whether a state prisoner can, prior to trial, raise the claim of the denial of a right to a speedy trial by petitioning a federal court for writ of habeas corpus. The Court reasons that since "discarded the prematurity doctrine," ante, at 488, "petitioner is entitled to raise his speedy trial claim on federal habeas corpus." Petitioner filed this petition alleging federal jurisdiction pursuant to 28 U.S. C. 2241, 2254. Section 2254 pertains only to a prisoner in custody pursuant to a judgment of conviction of a state court; in the context of the attempt to assert a right to a speedy trial, there is simply no 2254 trap to "ensnare" petitioner, such as the court below felt existed. The issue here is whether habeas corpus is warranted under 2241 (c) (3); that section empowers district courts to issue the writ, inter alia, before a judgment is rendered in a criminal proceeding. It is in the context of an application for federal habeas *504 corpus by a state prisoner prior to any trial in a state court that the effect of the instant decision must be analyzed. The Court reasons that since held that a State must, consistent with the Sixth and Fourteenth Amendments, "make a diligent, good-faith effort to bring" a prisoner to trial on a state indictment even though he is incarcerated in another jurisdiction, and, since overruled "the prematurity doctrine," therefore, a prisoner can attack in a federal habeas corpus proceeding the validity of an indictment lodged against him in one State even though he is imprisoned in another. I cannot agree with this reasoning. In Smith, this Court held that a State must make an effort to try a person even though he was incarcerated in another jurisdiction. That case did not, however, involve federal habeas corpus. It came here on certiorari after the state court had denied a petition for a writ of mandamus seeking to have the underlying indictment dismissed. The Texas Supreme Court had ruled that the state courts had no power to order the federal prisoner produced for trial on the state indictment. This Court reversed, holding that, in view of the Sixth and Fourteenth Amendment guarantees of a speedy trial, the State must, after demand therefor, attempt to obtain the prisoner from the sovereignty with custody over the prisoner. It by no means follows, however, that a state prisoner can assert the right to a speedy trial in a federal district court. The fundamental flaw in the reasoning of the Court is the assumption that since a prisoner has some "right" under he must have some forum in which affirmatively to assert that right, and that therefore the right may be vindicated in a federal district court under 2241 (c) (3). did *505 not, however, establish that a right distinct from the right to a speedy trial existed. It merely held that a State could not totally rely on the fact that it could not order that a prisoner be brought from another jurisdiction as a justification for not attempting to try the defendant as expeditiously as possible. The right to a speedy trial is, like other constitutional rights, a defense to a criminal charge, but one which, unlike others, increases in terms of potential benefit to the accused with the passage of time. The fact that a State must make an effort to obtain a defendant from another sovereign for trial but fails, after demand, to make an effort would weigh heavily in the defendant's favor. But does not necessarily imply that federal courts may, as the District Court did in this case, in effect, issue an injunction requiring a state court to conduct a criminal trial. If the State fails to perform its duty, it must face the consequences of possibly not obtaining a conviction, But the fact that the State has a duty by no means leads to the conclusion that the failure to perform that duty can be raised by a prospective defendant on federal habeas corpus in advance of trial. The history of habeas corpus and the principles of federalism strongly support the approach established by Ex parte that, absent extraordinary circumstances, federal habeas corpus should not be used to adjudicate the merits of an affirmative defense to a state criminal charge prior to a judgment of conviction by a state court. The Court's reasoning for allowing a state prisoner to resort to federal habeas corpus is that the prisoner is attacking the validity of a "future custody." The Court relies on Peyton to justify federal jurisdiction. Peyton, however, was in a significantly different procedural posture from the instant case. There, the Court held that a *506 state prisoner could challenge the constitutional validity of a sentence which he had not yet begun to serve when he was currently incarcerated pursuant to a valid conviction and sentence, but the sentence he sought to attack was to run consecutively to the valid sentence. Even though a person may be "in custody" for purposes of 2241 (c) (3), or 2254, if he has not yet begun to serve a sentence entered after a judgment of conviction, as the Court held in Peyton, it by no means follows that he is similarly "in custody" when no judgment of conviction has been entered or even any trial on the underlying charge conducted. The Court's suggestion that a person may challenge by way of federal habeas corpus any custody that might possibly be imposed at some time in the "future," which suggestion unwarrantedly assumes both that a constitutional defense will be rejected and that the jury will convict, is not supported by the language or reasoning of Peyton. Mr. Chief Justice Warren, writing for the Court in Peyton, emphasized the role of federal habeas corpus for state prisoners as "substantially a post-conviction device," and "the instrument for resolving fact issues not adequately developed in the original proceedings." The Court there stated that the demise of the McNally rule would allow prisoners "the opportunity to challenge defective convictions." The Court here glosses over the disparate procedural posture of this case, and merely asserts, without analyzing the historical function of federal habeas corpus for state prisoners, that the rationale of Peyton is applicable to a pretrial, preconviction situation. Citation to that decision cannot obscure the fact that the Court here makes a significant departure from previous decisions, a departure that certainly requires analysis and justification more detailed than that which the Court puts forth. *507 There is no doubt that a prisoner such as petitioner can assert, by appropriate motion in the courts of the State in which the indictment was handed down, that he should be brought to trial on that charge. There is also no doubt that such a prisoner may petition a federal district court for a writ of habeas corpus prior to trial. See 28 U.S. C. 2241 (c) (3). What the Court here disregards, however, is almost a century of decisions of this Court to the effect that federal habeas corpus for state prisoners, prior to conviction, should not be granted absent truly extraordinary circumstances. In Ex parte the petitioner was indicted in state court for selling a bond coupon without a license. Prior to trial on that indictment, he petitioned in federal court for a writ of habeas corpus, contending that the statute upon which the indictment was predicated violated the contract clause, insofar as it was applied to owners of coupons. In holding that the (then) Circuit Court had the power to issue the writ but had properly exercised its discretion not to do so, the Court wrote: "That discretion should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the States, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution." The judicial approach set forth in Ex parte that federal courts should not, absent extraordinary circumstances, interfere with the judicial administration and process of state courts prior to trial and conviction, even though the state prisoner claims that he is held in violation of the Constitutionhas been consistently followed. (custody *508 alleged to violate Art. 4, 2); New ; ; Cf. Ex parte Fonda, ; In re Duncan, ; In re Wood, ; In re Frederich, The situations in which pretrial or preconviction federal interference by way of habeas corpus with state criminal processes is justified involve the lack of jurisdiction, under the Supremacy Clause, for the State to bring any criminal charges against the petitioner. Wildenhus's Case, ; In re Loney, ; In re Neagle, The effect of today's ruling that federal habeas corpus prior to trial is appropriate because it will determine the validity of custody that may be imposed in actuality only sometime in the indefinite future constitutes an unjustifiable federal interference with the judicial administration of a State's criminal laws. The use of federal habeas corpus is, presumably, limited neither to the interstate detainer situation nor to the constitutional rights secured by the Sixth and Fourteenth Amendments. The same reasoning would apply to a state prisoner who alleges that "future custody" will result because the State plans to introduce at a criminal trial sometime in the future a confession allegedly obtained in violation of the Fifth and Fourteenth Amendments, or evidence obtained in violation of the Fourth and Fourteenth Amendments. I thoroughly disagree with this conversion of federal habeas corpus into a pretrial-motion forum for state prisoners. *509 III In addition to sanctioning an expansion of when a federal court may interfere with state judicial administration, the Court overrules and expands the parameters of which federal courts may so intervene. In Ahrens, the Court held that "the presence within the territorial jurisdiction of the District Court of the person detained is [a] prerequisite to filing a petition for writ of habeas corpus." The Court construed the phrase "within their respective jurisdictions" to mean that Congress intended to limit the jurisdiction of a district court to prisoners in custody within its territorial jurisdiction. The Court here says that the "language" of Ahrens "indicates" the result reached below. The explicit holding of the Court, however, is plainly much more than an "indication." "Thus the view that the jurisdiction of the District Court to issue the writ in cases such as this is restricted to those petitioners who are confined or detained within the territorial jurisdiction of the court is supported by the language of the statute, by considerations of policy, and by the legislative history of the enactment. We therefore do not feel free to weigh the policy considerations which are advanced for giving district courts discretion in cases like this. If that concept is to be imported into this statute, Congress must do so." The result reached today may be desirable from the point of view of sound judicial administration, see ; It is the function of this Court, however, to ascertain the intent of Congress as to the meaning *510 of "within their respective jurisdictions." Having completed that task in Ahrens, it is the function of Congress to amend the statute if this Court misinterpreted congressional intent or if subsequent developments suggest the desirability, from a policy viewpoint, of alterations in the statute. See We noted in Nelson that the resolution of any apparent dilemma "caused" by this Court's holding in Ahrens is appropriately one to be undertaken by 399 U.S., at Legislative "inaction" in amending a statute to comport with this Court's evaluation of "[s]ound judicial administration" hardly warrants the disingenuous reading of a previous decision to achieve the result that Congress, despite judicial prodding, has refused to mandate. However impatient we may be with a federal statute which sometimes may fail to provide a remedy for every situation, one would have thought it inappropriate for the Court to amend the statute by judicial action. The Court lists several "developments" that have somehow undercut the validity, in the Court's opinion, of the statutory interpretation of the phrase "within their respective jurisdictions." As the amended 2255 is relevant only to federal prisoners collaterally attacking a conviction, and as 2241 (d) applies only to intrastate jurisdiction, the relevance of the amendments with respect to the jurisdictional requirement of 2241 (c) (3) is not a little obscure. The interpretation of the phrase "within their respective jurisdictions" in Ahrens is hardly incompatible with these recent amendments of statutes dealing with situations not involving the interstate transportation of state prisoners. The further argument that "undermines" Ahrens overlooks the fact that the Court in Ahrens specifically reserved that n. 4, the resolution of which is by no means an explicit rejection *511 of Ahrens. Finally, the fact that this Court has expanded the notion of "custody" for habeas corpus purposes hardly supports, much less compels, the rejection of a statutory construction of an unrelated phrase. In the final analysis, the Court apparently reasons that since Congress amended other statutory provisions dealing with habeas corpus, therefore the congressional intent with respect to the meaning of an unamended phrase must somehow have changed since the Court previously ascertained that intent. This approach to statutory construction, however, justifies with as much, if not more, force, the result reached below: Congress, aware of this Court's interpretation of the phrase in Ahrens, deliberately chose not to amend 2241 (c) (3) when it selectively amended other statutory provisions dealing with federal habeas corpus. Indeed, the most recent indications of legislative intent support this conclusion rather than that advanced by the Court. See H. R. Rep. No. 1894, 89th Cong., 2d Sess., 1-2 (1966); S. Rep. No. 1502, 89th Cong., 2d Sess. (1966). See also n. 13, ante, at 497. I would adhere to this Court's interpretation of the legislative intent set forth in and leave it to Congress, during the process of considering legislation to amend this section, to consider and to weigh the various policy factors that the Court today weighs for itself. |
Justice Kennedy | concurring | false | Stewart Organization, Inc. v. Ricoh Corp. | 1988-06-20T00:00:00 | null | https://www.courtlistener.com/opinion/112115/stewart-organization-inc-v-ricoh-corp/ | https://www.courtlistener.com/api/rest/v3/clusters/112115/ | 1,988 | 1987-125 | 2 | 8 | 1 | I concur in full. I write separately only to observe that enforcement of valid forum-selection clauses, bargained for by the parties, protects their legitimate expectations and furthers vital interests of the justice system. Although our opinion in The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1972), involved a Federal District Court sitting in admiralty, its reasoning applies with much force to federal courts sitting in diversity. The justifications we noted in The Bremen to counter the historical disfavor forum-selection clauses had received in American courts, id., at 9, should be understood to guide the District Court's analysis under § 1404(a).
The federal judicial system has a strong interest in the correct resolution of these questions, not only to spare litigants unnecessary costs but also to relieve courts of time-consuming pretrial motions. Courts should announce and encourage rules that support private parties who negotiate such clauses. Though state policies should be weighed in the balance, the authority and prerogative of the federal courts to determine the issue, as Congress has directed by § 1404(a), should be exercised so that a valid forum-selection clause is given controlling weight in all but the most exceptional cases. See The Bremen, supra, at 10. | I concur in full. I write separately only to observe that enforcement of valid forum-selection clauses, bargained for by the parties, protects their legitimate expectations and furthers vital interests of the justice system. Although our opinion in The involved a Federal District Court sitting in admiralty, its reasoning applies with much force to federal courts sitting in diversity. The justifications we noted in The to counter the historical disfavor forum-selection clauses had received in American courts, should be understood to guide the District Court's analysis under 1404(a). The federal judicial system has a strong interest in the correct resolution of these questions, not only to spare litigants unnecessary costs but also to relieve courts of time-consuming pretrial motions. Courts should announce and encourage rules that support private parties who negotiate such clauses. Though state policies should be weighed in the balance, the authority and prerogative of the federal courts to determine the issue, as Congress has directed by 1404(a), should be exercised so that a valid forum-selection clause is given controlling weight in all but the most exceptional cases. See The at |
Justice White | concurring | false | United States v. Taylor | 1988-06-24T00:00:00 | null | https://www.courtlistener.com/opinion/112129/united-states-v-taylor/ | https://www.courtlistener.com/api/rest/v3/clusters/112129/ | 1,988 | 1987-139 | 1 | 6 | 3 | I join the Court's opinion, agreeing that when a defendant, through deliberate misconduct, interferes with compliance with the Speedy Trial Act and a violation of the Act then occurs, dismissal with prejudice should not be ordered unless the violation is caused by Government conduct that is much more serious than is revealed by this record.
JUSTICE SCALIA, concurring in part.
I join the opinion of the Court except Part II-A, which is largely devoted to establishing, through the floor debate in the House, (1) that prejudice to the defendant is one of the factors that the phrase "among others" in § 3162(a)(2) refers to, and (2) that that factor is not necessarily determinative. Both these points seem to me so utterly clear from the text of the legislation that there is no justification for resort to the legislative history. Assume that there was nothing in the legislative history except statements that, unless the defendant had been harmed by the delay, dismissal with prejudice could not be granted. Would we permit that to govern, even though the text of the provision does not consider that factor dominant enough to be mentioned specifically, but just includes it within the phrase "among othe[r] [factors]," or perhaps within the phrase "facts and circumstances of the case which led to the dismissal"? Or assume the opposite, that *345 there was nothing in the legislative history except statements that harm to the defendant could not be considered at all. Would we permit that to govern, even though impairment of the accused's defense is so obviously one of the "other factors" highly relevant to whether the Government should be permitted to reinstitute the prosecution?
I think the answer to both these questions is obviously no. The text is so unambiguous on these points that it must be assumed that what the Members of the House and the Senators thought they were voting for, and what the President thought he was approving when he signed the bill, was what the text plainly said, rather than what a few Representatives, or even a Committee Report, said it said. Where we are not prepared to be governed by what the legislative history says to take, as it were, the bad with the good we should not look to the legislative history at all. This text is eminently clear, and we should leave it at that.
It should not be thought that, simply because adverting to the legislative history produces the same result we would reach anyway, no harm is done. By perpetuating the view that legislative history can alter the meaning of even a clear statutory provision, we produce a legal culture in which the following statement could be made taken from a portion of the floor debate alluded to in the Court's opinion:
"Mr. DENNIS. . . .
.....
"I have an amendment here in my hand which could be offered, but if we can make up some legislative history which would do the same thing, I am willing to do it." 120 Cong. Rec. 41795 (1974).
We should not make the equivalency between making legislative history and making an amendment so plausible. It should not be possible, or at least should not be easy, to be sure of obtaining a particular result in this Court without making that result apparent on the face of the bill which both Houses consider and vote upon, which the President approves, *346 and which, if it becomes law, the people must obey. I think we have an obligation to conduct our exegesis in a fashion which fosters that democratic process. | I join the Court's opinion, agreeing that when a defendant, through deliberate misconduct, interferes with compliance with the Speedy Trial Act and a violation of the Act then occurs, dismissal with prejudice should not be ordered unless the violation is caused by Government conduct that is much more serious than is revealed by this record. JUSTICE SCALIA, concurring in part. I join the opinion of the Court except Part II-A, which is largely devoted to establishing, through the floor debate in the House, (1) that prejudice to the defendant is one of the factors that the phrase "among others" in 3162(a)(2) refers to, and (2) that that factor is not necessarily determinative. Both these points seem to me so utterly clear from the text of the legislation that there is no justification for resort to the legislative history. Assume that there was nothing in the legislative history except statements that, unless the defendant had been harmed by the delay, dismissal with prejudice could not be granted. Would we permit that to govern, even though the text of the provision does not consider that factor dominant enough to be mentioned specifically, but just includes it within the phrase "among othe[r] [factors]," or perhaps within the phrase "facts and circumstances of the case which led to the dismissal"? Or assume the opposite, that *345 there was nothing in the legislative history except statements that harm to the defendant could not be considered at all. Would we permit that to govern, even though impairment of the accused's defense is so obviously one of the "other factors" highly relevant to whether the Government should be permitted to reinstitute the prosecution? I think the answer to both these questions is obviously no. The text is so unambiguous on these points that it must be assumed that what the Members of the House and the Senators thought they were voting for, and what the President thought he was approving when he signed the bill, was what the text plainly said, rather than what a few Representatives, or even a Committee Report, said it said. Where we are not prepared to be governed by what the legislative history says to take, as it were, the bad with the good we should not look to the legislative history at all. This text is eminently clear, and we should leave it at that. It should not be thought that, simply because adverting to the legislative history produces the same result we would reach anyway, no harm is done. By perpetuating the view that legislative history can alter the meaning of even a clear statutory provision, we produce a legal culture in which the following statement could be made taken from a portion of the floor debate alluded to in the Court's opinion: "Mr. DENNIS. "I have an amendment here in my hand which could be offered, but if we can make up some legislative history which would do the same thing, I am willing to do it." 120 Cong. Rec. 41795 (1974). We should not make the equivalency between making legislative history and making an amendment so plausible. It should not be possible, or at least should not be easy, to be sure of obtaining a particular result in this Court without making that result apparent on the face of the bill which both Houses consider and vote upon, which the President approves, *346 and which, if it becomes law, the people must obey. I think we have an obligation to conduct our exegesis in a fashion which fosters that democratic process. |
Justice Scalia | majority | false | Carden v. Arkoma Associates | 1990-02-27T00:00:00 | null | https://www.courtlistener.com/opinion/112380/carden-v-arkoma-associates/ | https://www.courtlistener.com/api/rest/v3/clusters/112380/ | 1,990 | 1989-037 | 1 | 5 | 4 | The question presented in this case is whether, in a suit brought by a limited partnership, the citizenship of the limited partners must be taken into account to determine diversity of citizenship among the parties.
I
Respondent Arkoma Associates (Arkoma), a limited partnership organized under the laws of Arizona, brought suit on a contract dispute in the United States District Court for the Eastern District of Louisiana, relying upon diversity of citizenship for federal jurisdiction. The defendants, C. Tom Carden and Leonard L. Limes, citizens of Louisiana, moved to dismiss, contending that one of Arkoma's limited partners was also a citizen of Louisiana. The District Court denied the motion but certified the question for interlocutory appeal, which the Fifth Circuit declined. Thereafter Magee Drilling Company intervened in the suit and, together with the original defendants, counterclaimed against Arkoma under Texas law. Following a bench trial, the District Court awarded Arkoma a money judgment plus interest and attorney's fees; it dismissed Carden and Limes' counterclaim as well as Magee's intervention and counterclaim. Carden, Limes, and Magee (petitioners here) appealed, and the Fifth Circuit affirmed. *187 874 F.2d 226 (1988). With respect to petitioners' jurisdictional challenge, the Court of Appeals found complete diversity, reasoning that Arkoma's citizenship should be determined by reference to the citizenship of the general, but not the limited, partners. We granted certiorari. 490 U.S. 1045 (1989).
II
Article III of the Constitution provides, in pertinent part, that "[t]he judicial Power shall extend to . . . Controversies. . . between Citizens of different States." Congress first authorized the federal courts to exercise diversity jurisdiction in the Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 78. In its current form, the diversity statute provides that "[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds . . . $50,000. . . , and is between . . . citizens of different States . . . ." 28 U.S. C. § 1332(a). Since its enactment, we have interpreted the diversity statute to require "complete diversity" of citizenship. See Strawbridge v. Curtiss, 3 Cranch 267 (1806). The District Court erred in finding complete diversity in this case unless (1) a limited partnership may be considered in its own right a "citizen" of the State that created it, or (2) a federal court must look to the citizenship of only its general, but not its limited, partners to determine whether there is complete diversity of citizenship. We consider these questions in turn.
A
We have often had to consider the status of artificial entities created by state law insofar as that bears upon the existence of federal diversity jurisdiction. The precise question posed under the terms of the diversity statute is whether such an entity may be considered a "citizen" of the State under whose laws it was created.[1] A corporation is the paradigmatic *188 artificial "person," and the Court has considered its proper characterization under the diversity statute on more than one occasion not always reaching the same conclusion. Initially, we held that a corporation "is certainly not a citizen," so that to determine the existence of diversity jurisdiction the Court must "look to the character of the individuals who compose [it]." Bank of United States v. Deveaux, 5 Cranch 61, 86, 91-92 (1809). We overruled Deveaux 35 years later in Louisville, C. & C. R. Co. v. Letson, 2 How. 497, 558 (1844), which held that a corporation is "capable of being treated as a citizen of [the State which created it], as much as a natural person." Ten years later, we reaffirmed the result of Letson, though on the somewhat different theory that "those who use the corporate name, and exercise the faculties conferred by it," should be presumed conclusively to be citizens of the corporation's State of incorporation. Marshall v. Baltimore & Ohio R. Co., 16 How. 314, 329 (1854).
*189 While the rule regarding the treatment of corporations as "citizens" has become firmly established, we have (with an exception to be discussed presently) just as firmly resisted extending that treatment to other entities. For example, in Chapman v. Barney, 129 U.S. 677 (1889), a case involving an unincorporated "joint stock company," we raised the question of jurisdiction on our own motion, and found it to be lacking:
"On looking into the record we find no satisfactory showing as to the citizenship of the plaintiff. The allegation of the amended petition is, that the United States Express Company is a joint stock company organized under a law of the State of New York, and is a citizen of that State. But the express company cannot be a citizen of New York, within the meaning of the statutes regulating jurisdiction, unless it be a corporation. The allegation that the company was organized under the laws of New York is not an allegation that it is a corporation. In fact the allegation is, that the company is not a corporation, but a joint stock company that is, a mere partnership." Id., at 682.
Similarly, in Great Southern Fire Proof Hotel Co. v. Jones, 177 U.S. 449 (1900), we held that a "limited partnership association" although possessing "some of the characteristics of a corporation" and deemed a "citizen" by the law creating it may not be deemed a "citizen" under the jurisdictional rule established for corporations. Id., at 456. "That rule must not be extended." Id., at 457. As recently as 1965, our unanimous opinion in Steelworkers v. R. H. Bouligny, Inc., 382 U.S. 145, reiterated that "the doctrinal wall of Chapman v. Barney," id., at 151, would not be breached.
The one exception to the admirable consistency of our jurisprudence on this matter is Puerto Rico v. Russell & Co., 288 U.S. 476 (1933), which held that the entity known as a sociedad en comandita, created under the civil law of Puerto *190 Rico, could be treated as a citizen of Puerto Rico for purposes of determining federal-court jurisdiction. The sociedad's juridical personality, we said, "is so complete in contemplation of the law of Puerto Rico that we see no adequate reason for holding that the sociedad has a different status for purposes of federal jurisdiction than a corporation organized under that law." Id., at 482. Arkoma fairly argues that this language, and the outcome of the case, "reflec[t] the Supreme Court's willingness to look beyond the incorporated/unincorporated dichotomy and to study the internal organization, state law requirements, management structure, and capacity or lack thereof to act and/or sue, to determine diversity of citizenship." Brief for Respondent 14. The problem with this argument lies not in its logic, but in the fact that the approach it espouses was proposed and specifically rejected in Bouligny. There, in reaffirming "the doctrinal wall of Chapman v. Barney," we explained Russell as a case resolving the distinctive problem "of fitting an exotic creation of the civil law . . . into a federal scheme which knew it not." 382 U.S., at 151. There could be no doubt, after Bouligny that at least common-law entities (and likely all entities beyond the Puerto Rican sociedad en comandita) would be treated for purposes of the diversity statute pursuant to what Russell called "[t]he tradition of the common law," which is "to treat as legal persons only incorporated groups and to assimilate all others to partnerships." 288 U.S., at 480.[2]
*191 Arkoma claims to have found another exception to our Chapman tradition in Navarro Savings Assn. v. Lee, 446 U.S. 458 (1980). That case, however, did not involve the question whether a party that is an artificial entity other than a corporation can be considered a "citizen" of a State, but the quite separate question whether parties that were undoubted "citizens" (viz., natural persons) were the real parties to the controversy. The plaintiffs in Navarro were eight individual trustees of a Massachusetts business trust, suing in their own names. The defendant, Navarro Savings Association, disputed the existence of complete diversity, claiming that the trust beneficiaries rather than the trustees were the real parties to the controversy, and that the citizenship of the former and not the latter should therefore control. In the course of rejecting this claim, we did indeed discuss the characteristics of a Massachusetts business trust not at all, however, for the purpose of determining whether the trust had attributes making it a "citizen," but only for the purpose of establishing that the respondents were "active trustees whose control over the assets held in their names is real and substantial," thereby bringing them under the rule, "more than 150 years" old, which permits such trustees "to sue in their own right, without regard to the citizenship of the trust beneficiaries." Id., at 465-466. Navarro, in short, has nothing to do with the Chapman question, except that it makes available to respondent *192 the argument by analogy that, just as business reality is taken into account for purposes of determining whether a trustee is the real party to the controversy, so also it should be taken into account for purposes of determining whether an artificial entity is a citizen. That argument is, to put it mildly, less than compelling.
B
As an alternative ground for finding complete diversity, Arkoma asserts that the Fifth Circuit correctly determined its citizenship solely by reference to the citizenship of its general partners, without regard to the citizenship of its limited partners. Only the general partners, it points out, "manage the assets, control the litigation, and bear the risk of liability for the limited partnership's debts," and, more broadly, "have exclusive and complete management and control of the operations of the partnership." Brief for Respondent 30, 36. This approach of looking to the citizenship of only some of the members of the artificial entity finds even less support in our precedent than looking to the State of organization (for which one could at least point to Russell). We have never held that an artificial entity, suing or being sued in its own name, can invoke the diversity jurisdiction of the federal courts based on the citizenship of some but not all of its members. No doubt some members of the joint stock company in Chapman, the labor union in Bouligny, and the limited partnership association in Great Southern exercised greater control over their respective entities than other members. But such considerations have played no part in our decisions.
To support its approach, Arkoma seeks to press Navarro into service once again, arguing that just as that case looked to the trustees to determine the citizenship of the business trust, so also here we should look to the general partners, who have the management powers, in determining the citizenship of this partnership. As we have already explained, however, Navarro had nothing to do with the citizenship of *193 the "trust," since it was a suit by the trustees in their own names.
The dissent supports Arkoma's argument on this point, though, as we have described, under the rubric of determining which parties supposedly before the Court are the real parties, rather than under the rubric of determining the citizenship of the limited partnership. See n. 1, supra. The dissent asserts that "[t]he real party to the controversy approach," post, at 201 by which it means an approach that looks to "control over the conduct of the business and the ability to initiate or control the course of litigation," post, at 204 "has been implemented by the Court both in its oldest and in its most recent cases examining diversity jurisdiction with respect to business associations." Post, at 201. Not a single case the dissent discusses, either old or new, supports that assertion. Deveaux, which was in any event overruled by Letson, seems to be applying not a "real party to the controversy" test, but rather the principle that for jurisdictional purposes the corporation has no substance, and merely "represents" its shareholders, see 5 Cranch, at 90-91; but even if it can be regarded as applying a "real party to the controversy" test, it deems that test to be met by all the shareholders of the corporation, without regard to their "control over the operation of the business." Marshall, which as we have discussed rerationalized Letson's holding that a corporation was a "citizen" in its own right, contains language quite clearly adopting a "real party to the controversy" approach, and arguably even adopting a "control" test for that status. ("[T]he court . . . will look behind the corporate or collective name . . . to find the persons who act as the representatives, curators, or trustees . . . ." 16 How., at 328-329 (emphasis added). "The presumption arising from the habitat of a corporation in the place of its creation [is] conclusive as to the residence or citizenship of those who use the corporate name and exercise the faculties conferred by it . . . ." Id., at 329 (emphasis added).) But as we have also discussed, and as *194 the last quotation shows, that analysis was a complete fiction; the real citizenship of the shareholders (or the controlling shareholders) was not consulted at all.[3] From the fictional Marshall, the dissent must leap almost a century and a third to Navarro to find a "real party to the controversy" analysis that discusses "control." That case, as we have said, is irrelevant, since it involved not a juridical person but the distinctive common-law institution of trustees.
The dissent finds its position supported, rather than contradicted, by the trilogy of Chapman, Great Southern, and Bouligny cases that did involve juridical persons but that did not apply "real party to the controversy" analysis, much less a "control" test as the criterion for that status. In those cases, the dissent explains, "the members of each association held equivalent power and control over the association's assets, business, and litigation." Post, at 202. It seeks to establish this factual matter, however, not from the text of the opinions (where not the slightest discussion of the point appears) but, for Chapman, by citation of scholarly commentary dealing with the general characteristics of joint stock company agreements, with no reference to (because the record does not contain) the particular agreement at issue in the case, post, at 202-203; for Great Southern, by citation of scholarly commentary dealing with the general characteristics of Pennsylvania limited partnership associations, and citation of Pennsylvania statutes, post, at 203; and, for Bouligny, by nothing more than the observation that "[t]here was no indication that any of the union members had any greater power over the litigation or the union's business and *195 assets than any other member, and, therefore, as in Chapman and Great Southern, the Court was not called upon to decide" the issue, post, at 204. This will not do. Since diversity of citizenship is a jurisdictional requirement, the Court is always "called upon to decide" it. As the Court said in Great Southern itself:
"[T]he failure of parties to urge objections [to diversity of citizenship] cannot relieve this court from the duty of ascertaining from the record whether the Circuit Court could properly take jurisdiction of this suit. . . . `The rule . . . is inflexible and without exception, which requires this court, of its own motion, to deny its own jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act.' " 177 U.S., at 453 (quoting Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 382 (1884)).
If, as the dissent contends, these three cases were applying a "real party to the controversy" test governed by "control" over the associations, so that the citizenship of all members would be consulted only if all members had equivalent control, it is inconceivable that the existence of equivalency, or at least the absence of any reason to suspect nonequivalency, would not have been mentioned in the opinions. Given what 180 years of cases have said and done, as opposed to what they might have said, it is difficult to understand how the dissent can characterize as "newly formulated" the "rule that the Court will, without analysis of the particular entity before it, count every member of an unincorporated association for purposes of diversity jurisdiction." Post, at 199.
In sum, we reject the contention that to determine, for diversity purposes, the citizenship of an artificial entity, the court may consult the citizenship of less than all of the entity's members. We adhere to our oft-repeated rule that diversity jurisdiction in a suit by or against the entity depends on the citizenship of "all the members," Chapman, 129 *196 U. S., at 682, "the several persons composing such association," Great Southern, 177 U. S., at 456, "each of its members," Bouligny, 382 U. S., at 146.
C
The resolutions we have reached above can validly be characterized as technical, precedent-bound, and unresponsive to policy considerations raised by the changing realities of business organization. But, as must be evident from our earlier discussion, that has been the character of our jurisprudence in this field after Letson. See Currie, The Federal Courts and the American Law Institute, 36 U. Chi. L. Rev. 1, 35 (1968). Arkoma is undoubtedly correct that limited partnerships are functionally similar to "other types of organizations that have access to federal courts," and is perhaps correct that "[c]onsiderations of basic fairness and substance over form require that limited partnerships receive similar treatment." Brief for Respondent 33. Similar arguments were made in Bouligny. The District Court there had upheld removal because it could divine " `no common sense reason for treating an unincorporated national labor union differently from a corporation,' " 382 U.S., at 146, and we recognized that that contention had "considerable merit," id., at 150. We concluded, however, that "[w]hether unincorporated labor unions ought to be assimilated to the status of corporations for diversity purposes," id., at 153, is "properly a matter for legislative consideration which cannot adequately or appropriately be dealt with by this Court," id., at 147. In other words, having entered the field of diversity policy with regard to artificial entities once (and forcefully) in Letson, we have left further adjustments to be made by Congress.
Congress has not been idle. In 1958 it revised the rule established in Letson, providing that a corporation shall be deemed a citizen not only of its State of incorporation but also "of the State where it has its principal place of business." 28 U.S. C. § 1332(c). No provision was made for the treatment *197 of artificial entities other than corporations, although the existence of many new, post-Letson forms of commercial enterprises, including at least the sort of joint stock company at issue in Chapman, the sort of limited partnership association at issue in Great Southern, and the sort of Massachusetts business trust at issue in Navarro, must have been obvious.
Thus, the course we take today does not so much disregard the policy of accommodating our diversity jurisdiction to the changing realities of commercial organization, as it honors the more important policy of leaving that to the people's elected representatives. Such accommodation is not only performed more legitimately by Congress than by courts, but it is performed more intelligently by legislation than by interpretation of the statutory word "citizen." The 50 States have created, and will continue to create, a wide assortment of artificial entities possessing different powers and characteristics, and composed of various classes of members with varying degrees of interest and control. Which of them is entitled to be considered a "citizen" for diversity purposes, and which of their members' citizenship is to be consulted, are questions more readily resolved by legislative prescription than by legal reasoning, and questions whose complexity is particularly unwelcome at the threshold stage of determining whether a court has jurisdiction. We have long since decided that, having established special treatment for corporations, we will leave the rest to Congress; we adhere to that decision.
III
Arkoma argues that even if this Court finds complete diversity lacking with respect to Carden and Limes, we should nonetheless affirm the judgment with respect to Magee because complete diversity indisputably exists between Magee and Arkoma. This question was not considered by the Court of Appeals. We decline to decide it in the first instance, and leave it to be resolved by the Court of Appeals on remand.
*198 The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered. | The question presented in this case is whether, in a suit brought by a limited partnership, the citizenship of the limited partners must be taken into account to determine diversity of citizenship among the parties I Respondent Arkoma Associates (Arkoma), a limited partnership organized under the laws of Arizona, brought suit on a contract dispute in the United States District Court for the Eastern District of Louisiana, relying upon diversity of citizenship for federal jurisdiction The defendants, C Tom Carden and Leonard L Limes, citizens of Louisiana, moved to dismiss, contending that one of Arkoma's limited partners was also a citizen of Louisiana The District Court denied the motion but certified the question for interlocutory appeal, which the Fifth Circuit declined Thereafter Magee Drilling Company intervened in the suit and, together with the original defendants, counterclaimed against Arkoma under Texas law Following a bench trial, the District Court awarded Arkoma a money judgment plus interest and attorney's fees; it dismissed Carden and Limes' counterclaim as well as Magee's intervention and counterclaim Carden, Limes, and Magee (petitioners here) appealed, and the Fifth Circuit affirmed *87 With respect to petitioners' jurisdictional challenge, the Court of Appeals found complete diversity, reasoning that Arkoma's citizenship should be determined by reference to the citizenship of the general, but not the limited, partners We granted certiorari II Article III of the Constitution provides, in pertinent part, that "[t]he judicial Power shall extend to Controversies between Citizens of different States" Congress first authorized the federal courts to exercise diversity jurisdiction in the Judiciary Act of 789, ch 20, In its current form, the diversity statute provides that "[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds $50,000 and is between citizens of different States " 28 US C 332(a) Since its enactment, we have interpreted the diversity statute to require "complete diversity" of citizenship See The District Court erred in finding complete diversity in this case unless () a limited partnership may be considered in its own right a "citizen" of the State that created it, or (2) a federal court must look to the citizenship of only its general, but not its limited, partners to determine whether there is complete diversity of citizenship We consider these questions in turn A We have often had to consider the status of artificial entities created by state law insofar as that bears upon the existence of federal diversity jurisdiction The precise question posed under the terms of the diversity statute is whether such an entity may be considered a "citizen" of the State under whose laws it was created[] A corporation is the paradigmatic *88 artificial "person," and the Court has considered its proper characterization under the diversity statute on more than one occasion not always reaching the same conclusion Initially, we held that a corporation "is certainly not a citizen," so that to determine the existence of diversity jurisdiction the Court must "look to the character of the individuals who compose [it]" Bank of United We overruled Deveaux years later in Louisville, C & C R which held that a corporation is "capable of being treated as a citizen of [the State which created it], as much as a natural person" Ten years later, we reaffirmed the result of Letson, though on the somewhat different theory that "those who use the corporate name, and exercise the faculties conferred by it," should be presumed conclusively to be citizens of the corporation's State of incorporation *89 While the rule regarding the treatment of corporations as "citizens" has become firmly established, we have (with an exception to be discussed presently) just as firmly resisted extending that treatment to other entities For example, in a case involving an unincorporated "joint stock company," we raised the question of jurisdiction on our own motion, and found it to be lacking: "On looking into the record we find no satisfactory showing as to the citizenship of the plaintiff The allegation of the amended petition is, that the United States Express Company is a joint stock company organized under a law of the State of New York, and is a citizen of that State But the express company cannot be a citizen of New York, within the meaning of the statutes regulating jurisdiction, unless it be a corporation The allegation that the company was organized under the laws of New York is not an allegation that it is a corporation In fact the allegation is, that the company is not a corporation, but a joint stock company that is, a mere partnership" Similarly, in Great Fire Proof Hotel we held that a "limited partnership association" although possessing "some of the characteristics of a corporation" and deemed a "citizen" by the law creating it may not be deemed a "citizen" under the jurisdictional rule established for corporations "That rule must not be extended" As recently as 965, our unanimous opinion in reiterated that "the doctrinal wall of" would not be breached The one exception to the admirable consistency of our jurisprudence on this matter is Puerto which held that the entity known as a sociedad en comandita, created under the civil law of Puerto *90 Rico, could be treated as a citizen of Puerto Rico for purposes of determining federal-court jurisdiction The sociedad's juridical personality, we said, "is so complete in contemplation of the law of Puerto Rico that we see no adequate reason for holding that the sociedad has a different status for purposes of federal jurisdiction than a corporation organized under that law" Arkoma fairly argues that this language, and the outcome of the case, "reflec[t] the Supreme Court's willingness to look beyond the incorporated/unincorporated dichotomy and to study the internal organization, state law requirements, management structure, and capacity or lack thereof to act and/or sue, to determine diversity of citizenship" Brief for Respondent 4 The problem with this argument lies not in its logic, but in the fact that the approach it espouses was proposed and specifically rejected in There, in reaffirming "the doctrinal wall of" we explained Russell as a case resolving the distinctive problem "of fitting an exotic creation of the civil law into a federal scheme which knew it not" US, There could be no doubt, after that at least common-law entities (and likely all entities beyond the Puerto Rican sociedad en comandita) would be treated for purposes of the diversity statute pursuant to what Russell called "[t]he tradition of the common law," which is "to treat as legal persons only incorporated groups and to assimilate all others to partnerships" [2] *9 Arkoma claims to have found another exception to our Chapman tradition in Navarro Savings That case, however, did not involve the question whether a party that is an artificial entity other than a corporation can be considered a "citizen" of a State, but the quite separate question whether parties that were undoubted "citizens" (viz, natural persons) were the real parties to the controversy The plaintiffs in Navarro were eight individual trustees of a Massachusetts business trust, suing in their own names The defendant, Navarro Savings Association, disputed the existence of complete diversity, claiming that the trust beneficiaries rather than the trustees were the real parties to the controversy, and that the citizenship of the former and not the latter should therefore control In the course of rejecting this claim, we did indeed discuss the characteristics of a Massachusetts business trust not at all, however, for the purpose of determining whether the trust had attributes making it a "citizen," but only for the purpose of establishing that the respondents were "active trustees whose control over the assets held in their names is real and substantial," thereby bringing them under the rule, "more than 50 years" old, which permits such trustees "to sue in their own right, without regard to the citizenship of the trust beneficiaries" Navarro, in short, has nothing to do with the Chapman question, except that it makes available to respondent *92 the argument by analogy that, just as business reality is taken into account for purposes of determining whether a trustee is the real party to the controversy, so also it should be taken into account for purposes of determining whether an artificial entity is a citizen That argument is, to put it mildly, less than compelling B As an alternative ground for finding complete diversity, Arkoma asserts that the Fifth Circuit correctly determined its citizenship solely by reference to the citizenship of its general partners, without regard to the citizenship of its limited partners Only the general partners, it points out, "manage the assets, control the litigation, and bear the risk of liability for the limited partnership's debts," and, more broadly, "have exclusive and complete management and control of the operations of the partnership" Brief for Respondent 30, 36 This approach of looking to the citizenship of only some of the members of the artificial entity finds even less support in our precedent than looking to the State of organization (for which one could at least point to Russell) We have never held that an artificial entity, suing or being sued in its own name, can invoke the diversity jurisdiction of the federal courts based on the citizenship of some but not all of its members No doubt some members of the joint stock company in Chapman, the labor union in and the limited partnership association in Great exercised greater control over their respective entities than other members But such considerations have played no part in our decisions To support its approach, Arkoma seeks to press Navarro into service once again, arguing that just as that case looked to the trustees to determine the citizenship of the business trust, so also here we should look to the general partners, who have the management powers, in determining the citizenship of this partnership As we have already explained, however, Navarro had nothing to do with the citizenship of *93 the "trust," since it was a suit by the trustees in their own names The dissent supports Arkoma's argument on this point, though, as we have described, under the rubric of determining which parties supposedly before the Court are the real parties, rather than under the rubric of determining the citizenship of the limited partnership See n The dissent asserts that "[t]he real party to the controversy approach," post, at 20 by which it means an approach that looks to "control over the conduct of the business and the ability to initiate or control the course of litigation," post, at 204 "has been implemented by the Court both in its oldest and in its most recent cases examining diversity jurisdiction with respect to business associations" Post, at 20 Not a single case the dissent discusses, either old or new, supports that assertion Deveaux, which was in any event overruled by Letson, seems to be applying not a "real party to the controversy" test, but rather the principle that for jurisdictional purposes the corporation has no substance, and merely "represents" its shareholders, see -9; but even if it can be regarded as applying a "real party to the controversy" test, it deems that test to be met by all the shareholders of the corporation, without regard to their "control over the operation of the business" Marshall, which as we have discussed rerationalized Letson's holding that a corporation was a "citizen" in its own right, contains language quite clearly adopting a "real party to the controversy" approach, and arguably even adopting a "control" test for that status ("[T]he court will look behind the corporate or collective name to find the persons who act as the representatives, curators, or trustees " 6 How, at 328- "The presumption arising from the habitat of a corporation in the place of its creation [is] conclusive as to the residence or citizenship of those who use the corporate name and exercise the faculties conferred by it " at ) But as we have also discussed, and as *94 the last quotation shows, that analysis was a complete fiction; the real citizenship of the shareholders (or the controlling shareholders) was not consulted at all[3] From the fictional Marshall, the dissent must leap almost a century and a third to Navarro to find a "real party to the controversy" analysis that discusses "control" That case, as we have said, is irrelevant, since it involved not a juridical person but the distinctive common-law institution of trustees The dissent finds its position supported, rather than contradicted, by the trilogy of Chapman, Great and cases that did involve juridical persons but that did not apply "real party to the controversy" analysis, much less a "control" test as the criterion for that status In those cases, the dissent explains, "the members of each association held equivalent power and control over the association's assets, business, and litigation" Post, at 202 It seeks to establish this factual matter, however, not from the text of the opinions (where not the slightest discussion of the point appears) but, for Chapman, by citation of scholarly commentary dealing with the general characteristics of joint stock company agreements, with no reference to (because the record does not contain) the particular agreement at issue in the case, post, at 202-203; for Great by citation of scholarly commentary dealing with the general characteristics of Pennsylvania limited partnership associations, and citation of Pennsylvania statutes, post, at 203; and, for by nothing more than the observation that "[t]here was no indication that any of the union members had any greater power over the litigation or the union's business and *95 assets than any other member, and, therefore, as in Chapman and Great the Court was not called upon to decide" the issue, post, at 204 This will not do Since diversity of citizenship is a jurisdictional requirement, the Court is always "called upon to decide" it As the Court said in Great itself: "[T]he failure of parties to urge objections [to diversity of citizenship] cannot relieve this court from the duty of ascertaining from the record whether the Circuit Court could properly take jurisdiction of this suit `The rule is inflexible and without exception, which requires this court, of its own motion, to deny its own jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act' " 77 US, at 453 (quoting Mansfield, C & L M R Co v Swan, US 379, (884)) If, as the dissent contends, these three cases were applying a "real party to the controversy" test governed by "control" over the associations, so that the citizenship of all members would be consulted only if all members had equivalent control, it is inconceivable that the existence of equivalency, or at least the absence of any reason to suspect nonequivalency, would not have been mentioned in the opinions Given what 80 years of cases have said and done, as opposed to what they might have said, it is difficult to understand how the dissent can characterize as "newly formulated" the "rule that the Court will, without analysis of the particular entity before it, count every member of an unincorporated association for purposes of diversity jurisdiction" Post, at 99 In sum, we reject the contention that to determine, for diversity purposes, the citizenship of an artificial entity, the court may consult the citizenship of less than all of the entity's members We adhere to our oft-repeated rule that diversity jurisdiction in a suit by or against the entity depends on the citizenship of "all the members," Chapman, 29 *96 U S, "the several persons composing such association," Great 77 U S, "each of its members," U S, at 46 C The resolutions we have reached above can validly be characterized as technical, precedent-bound, and unresponsive to policy considerations raised by the changing realities of business organization But, as must be evident from our earlier discussion, that has been the character of our jurisprudence in this field after Letson See Currie, The Federal Courts and the American Law Institute, 36 U Chi L Rev (968) Arkoma is undoubtedly correct that limited partnerships are functionally similar to "other types of organizations that have access to federal courts," and is perhaps correct that "[c]onsiderations of basic fairness and substance over form require that limited partnerships receive similar treatment" Brief for Respondent 33 Similar arguments were made in The District Court there had upheld removal because it could divine " `no common sense reason for treating an unincorporated national labor union differently from a corporation,' " US, at 46, and we recognized that that contention had "considerable merit," at 50 We concluded, however, that "[w]hether unincorporated labor unions ought to be assimilated to the status of corporations for diversity purposes," at 53, is "properly a matter for legislative consideration which cannot adequately or appropriately be dealt with by this Court," at 47 In other words, having entered the field of diversity policy with regard to artificial entities once (and forcefully) in Letson, we have left further adjustments to be made by Congress Congress has not been idle In 958 it revised the rule established in Letson, providing that a corporation shall be deemed a citizen not only of its State of incorporation but also "of the State where it has its principal place of business" 28 US C 332(c) No provision was made for the treatment *97 of artificial entities other than corporations, although the existence of many new, post-Letson forms of commercial enterprises, including at least the sort of joint stock company at issue in Chapman, the sort of limited partnership association at issue in Great and the sort of Massachusetts business trust at issue in Navarro, must have been obvious Thus, the course we take today does not so much disregard the policy of accommodating our diversity jurisdiction to the changing realities of commercial organization, as it honors the more important policy of leaving that to the people's elected representatives Such accommodation is not only performed more legitimately by Congress than by courts, but it is performed more intelligently by legislation than by interpretation of the statutory word "citizen" The 50 States have created, and will continue to create, a wide assortment of artificial entities possessing different powers and characteristics, and composed of various classes of members with varying degrees of interest and control Which of them is entitled to be considered a "citizen" for diversity purposes, and which of their members' citizenship is to be consulted, are questions more readily resolved by legislative prescription than by legal reasoning, and questions whose complexity is particularly unwelcome at the threshold stage of determining whether a court has jurisdiction We have long since decided that, having established special treatment for corporations, we will leave the rest to Congress; we adhere to that decision III Arkoma argues that even if this Court finds complete diversity lacking with respect to Carden and Limes, we should nonetheless affirm the judgment with respect to Magee because complete diversity indisputably exists between Magee and Arkoma This question was not considered by the Court of Appeals We decline to decide it in the first instance, and leave it to be resolved by the Court of Appeals on remand *98 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 | false | Zipes v. Trans World Airlines, Inc. | 1982-02-24T00:00:00 | null | https://www.courtlistener.com/opinion/110655/zipes-v-trans-world-airlines-inc/ | https://www.courtlistener.com/api/rest/v3/clusters/110655/ | 1,982 | 1981-048 | 2 | 8 | 0 | The primary question in these cases is whether the statutory time limit for filing charges under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S. C. § 2000e et seq. (1970 ed.) is a jurisdictional prerequisite to a suit in the District Court. Secondarily, we resolve a dispute as to whether retroactive seniority was a proper remedy in these Title VII cases.
*388 I
In 1970, the Air Line Stewards and Stewardesses Association (ALSSA), then the collective-bargaining agent of Trans World Airlines (TWA) flight attendants, brought a class action alleging that TWA practiced unlawful sex discrimination in violation of Title VII by its policy of grounding all female flight cabin attendants who became mothers, while their male counterparts who became fathers were permitted to continue flying. After collective bargaining eliminated the challenged practice prospectively, the parties in the case reached a tentative settlement. The settlement, which provided neither backpay nor retroactive seniority, was approved by the District Court. The Court of Appeals for the Seventh Circuit, however, found the union to be an inadequate representative of the class because of the inherent conflict between the interests of current and former employees. It remanded the case with instructions that the District Court name individual members of the class to replace ALSSA as the class representative.[1]Air Line Stewards and Stewardesses Assn. v. American Airlines, Inc., 490 F.2d 636 (1973).
Upon remand, petitioners in No. 78-1545 were appointed as class representatives. TWA moved to amend its answer to assert that the claims of plaintiffs and other class members were barred by Title VII's "statute of limitations" because they had failed to file charges with the Equal Employment Opportunity Commission (EEOC) within the statutory time *389 limit. 1 Ohio App. 89a.[2] Although the District Court granted the motion to amend, it noted that the "delay in pleading the defense of limitations may well ultimately constitute a waiver of the defense." Id., at 101a.
Subsequently, on October 15, 1976, the District Court denied TWA's motion to exclude class members who had not filed timely charges with the EEOC. In support of its motion, TWA argued that instead of an affirmative defense analogous to a statute of limitations, timely filing with the EEOC is a jurisdictional prerequisite not subject to waiver by any action of the defendants. While the District Court agreed that the filing requirements of Title VII are jurisdictional, it denied the motion on the basis that any violation by the airline continued against all the class members until the airline changed the challenged policy. Id., at 131a-132a. On October 19, 1976, the District Court granted the motion of the plaintiff class for summary judgment on the issue of TWA's liability for violating Title VII. Id., at 133a-134a.
The Court of Appeals affirmed the order of October 18, 1976, granting summary judgment on liability, expressly holding that "TWA's no motherhood policy . . . provides a clear example of sex discrimination prohibited by § 2000e-2(a)." In re Consolidated Pretrial Proceedings in the Airline Cases, 582 F.2d 1142, 1145 (1978). It declined, however, "to extend the continuing violation theory, as did the district court, so as to include in the plaintiff class those employees who were permanently terminated more than 90 days before the filing of EEOC charges." Id., at 1149.
The Court of Appeals went on to hold that timely filing of EEOC charges was a jurisdictional prerequisite. Because TWA could not waive the timely-filing requirement, the *390 Court of Appeals found that approximately 92% of the plaintiffs' claims were jurisdictionally barred by the failure of those plaintiffs to have filed charges of discrimination with the EEOC within 90 days of the alleged unlawful employment practice. The Court of Appeals, however, stayed its mandate pending the filing of petitions in this Court. Petitions for certiorari were filed by the plaintiff class, No. 78-1545, and by TWA, No. 78-1549. This Court granted motions to defer consideration of the petitions pending completion of settlement proceedings in the District Court. 442 U.S. 916 (1979).
In connection with the settlement proceedings, the District Court designated two subclasses. Subclass A, consisting of some 30 women, comprised those who were terminated on or after March 2, 1970, as well as those who were discharged earlier, but who had accepted reinstatement in ground duty positions. Subclass B, numbering some 400 women, covered all other members of the class and consisted of those whose claims the Court of Appeals had found to be jurisdictionally barred for failure to satisfy the timely-filing requirement. 2 Ohio App. 3.
The proposed settlement divided $3 million between the two groups. It also provided each class member with full company and union seniority from the date of termination. The agreement specified that "in the event of the timely objection of any interested person, it is agreed that the amount of seniority and credit for length of service for the compensation period will be determined by the Court in its discretion, pursuant to the provisions of Section 706(g), and all other applicable provisions of law, without contest or objection by TWA."[3] App. to Pet. for Cert. in No. 80-951, p. 29a.
*391 The Independent Federation of Flight Attendants (union), which had replaced ALSSA as the collective-bargaining agent for the flight attendants, was permitted to intervene and to object to the settlement. On the basis that the Court of Appeals had not issued the mandate in its jurisdictional decision, the District Court rejected the union's challenge to its jurisdiction over Subclass B. Id., at 14a-15a. After holding three days of hearings, the District Court approved the settlement and awarded competitive seniority. It explicitly found that full restoration of retroactive seniority would not have an unusual adverse impact upon currently employed flight attendants in any way atypical of Title VII cases. Id., at 18a-19a.
The union appealed. It argued that, because of the Court of Appeals' earlier opinion, the District Court lacked jurisdiction to approve the settlement or to order retroactive seniority with respect to Subclass B. The Court of Appeals affirmed, reasoning that "the principles favoring settlement of class action lawsuits remain the same regardless of whether the disputed legal issues center on the jurisdiction of the court over the action." Air Line Stewards and Stewardesses Assn. v. Trans World Airlines, Inc., 630 F.2d 1164, 1169 (1980). It further explained that the question of jurisdiction as to Subclass B had not been finally determined because a challenge to its decision was pending before this Court and observed that the Courts of Appeals were split on the issue. The Court of Appeals noted that the District Court clearly had subject-matter jurisdiction over the claims of Subclass A. It concluded: "Where, as here, the jurisdictional question is not settled with finality, parties should not be forced to litigate the issue of jurisdiction if they can arrive at a settlement *392 that is otherwise appropriate for district court approval." Ibid.
The Court of Appeals also affirmed the award of seniority. According to the court, the settlement served the public policy of remedying past acts of sex discrimination and the consequences of those past acts. Moreover, "[t]he right to have its objections heard does not, of course, give the intervenor the right to block any settlement to which it objects." Ibid.[4]
The union petitioned for certiorari, No. 80-951. We granted its petition together with the petitions in No. 78-1545 and No. 78-1549, 450 U.S. 979 (1981), but later removed the TWA case, No. 78-1549,[5] from the argument docket and limited the grant in No. 80-951. 451 U.S. 980 (1981).
II
The single question in No. 78-1545 is whether the timely filing of an EEOC charge is a jurisdictional prerequisite to bringing a Title VII suit in federal court or whether the requirement is subject to waiver and estoppel. In reaching its decision that the requirement is jurisdictional, the Court of Appeals for the Seventh Circuit relied on its reading of the statutory language, the absence of any indication to the contrary *393 in the legislative history, and references in several of our cases to the 90-day filing requirement as "jurisdictional."[6] Other Courts of Appeals that have examined the same materials have reached the opposite conclusion.[7]
We hold that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.[8] The structure of Title VII, the congressional policy underlying it, and the reasoning of our cases all lead to this conclusion.
The provision granting district courts jurisdiction under Title VII, 42 U.S. C. §§ 2000e-5(e) and (f), does not limit jurisdiction to those cases in which there has been a timely filing with the EEOC.[9] It contains no reference to the timely-filing *394 requirement. The provision specifying the time for filing charges with the EEOC appears as an entirely separate provision, and it does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts.[10] The legislative history of the filing provision is sparse, but Senator Humphrey did characterize the time period for filing a claim as a "period of limitations," 110 Cong. Rec. 12723 (1964), and Senator Case described its purpose as preventing the pressing of "stale" claims, id., at 7243, the end served by a statute of limitations.
Although subsequent legislative history is not dispositive, see Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 596 (1980); Cannon v. University of Chicago, 441 U.S. 677, 686, n. 7 (1979), the legislative history of the 1972 amendments also indicates that Congress intended the filing period to operate as a statute of limitations instead of a jurisdictional requirement. In the final Conference Committee section-by-section analysis of H. R. 1746, The Equal Opportunity Act of 1972, 118 Cong. Rec. 7166, 7167 (1972), the Committee not only termed the filing period a "time limitation," but explained:
"This subsection as amended provides that charges be filed within 180 days of the alleged unlawful employment practice. Court decisions under the present law have *395 shown an inclination to interpret this time limitation so as to give the aggrieved person the maximum benefit of the law; it is not intended that such court decisions should be in any way circumscribed by the extension of the time limitations in this subsection."[11]
This result is entirely consistent with prior case law. Although our cases contain scattered references to the timely-filing requirement as jurisdictional, the legal character of the requirement was not at issue in those cases, and as or more often in the same or other cases, we have referred to the provision as a limitations statute.[12]
*396 More weighty inferences however, are to be drawn from other cases. Franks v. Bowman Transportation Co., 424 U.S. 747 (1976), was a Title VII suit against an employer and a union. The District Court denied relief for unnamed class members on the ground that those individuals had not filed administrative charges under the provisions of Title VII and that relief for them was thus not appropriate. The Court of Appeals did not disturb this ruling, but we reversed, saying:
"The District Court stated two reasons for its denial of seniority relief for the unnamed class members. The first was that those individuals had not filed administrative charges under the provision of Title VII with the Equal Employment Opportunity Commission and therefore class relief of this sort was not appropriate. We rejected this justification for denial of class-based relief in the context of backpay awards in Albemarle Paper [Co. v. Moody, 422 U.S. 405 (1975),] and . . . reject it here. This justification for denying class-based relief in Title VII suits has been unanimously rejected by the courts of appeals, and Congress ratified that construction by the 1972 amendments. . . ." Id., at 771 (footnote omitted).
*397 If the timely-filing requirement were to limit the jurisdiction of the District Court to those claimants who have filed timely charges with the EEOC, the District Courts in Franks and Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), would have been without jurisdiction to adjudicate the claims of those who had not filed as well as without jurisdiction to award them seniority. We did not so hold. Furthermore, we noted that Congress had approved the Court of Appeals cases that awarded relief to class members who had not exhausted administrative remedies before the EEOC. It is evident that in doing so, Congress necessarily adopted the view that the provision for filing charges with the EEOC should not be construed to erect a jurisdictional prerequisite to suit in the district court.
In Love v. Pullman Co., 404 U.S. 522 (1972), we announced a guiding principle for construing the provisions of Title VII. Declining to read literally another filing provision of Title VII, we explained that a technical reading would be "particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process." Id., at 527. That principle must be applied here as well.
The reasoning of other cases assumes that the filing requirement is not jurisdictional. In Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229 (1976), we rejected the argument that the timely-filing requirement should be tolled because the plaintiff had been pursuing a grievance procedure set up in the collective-bargaining agreement. We did not reach this decision on the basis that the 180-day period was jurisdictional. Instead, we considered the merits of a series of arguments that grievance procedures should toll the requirement. Such reasoning would have been gratuitous if the filing requirement were a jurisdictional prerequisite.[13]
*398 Similarly, we did not sua sponte dismiss the action in Mohasco Corp. v. Silver, 447 U.S. 807 (1980), on the basis that the District Court lacked jurisdiction because of plaintiff's failure to comply with a related Title VII time provision. Instead, we merely observed in a footnote that "[p]etitioner did not assert respondent's failure to file the action within 90 days as a defense." Id., at 811, n. 9.
By holding compliance with the filing period to be not a jurisdictional prerequisite to filing a Title VII suit, but a requirement subject to waiver as well as tolling when equity so requires, we honor the remedial purpose of the legislation as a whole without negating the particular purpose of the filing requirement, to give prompt notice to the employer.
We therefore reverse the Court of Appeals in No. 78-1545.
III
In No. 80-951, the union challenges on several grounds the District Court's authority to award, over the union's objection, retroactive seniority to the members of Subclass B. We have already rejected the union's first contention, namely, that the District Court had no jurisdiction to award relief to those who had not complied with Title VII's filing requirement. The union also contends that in any event there has been no finding of discrimination with respect to Subclass B members and that the predicate for relief under § 706(g) is therefore missing. This contention is also without merit.
The District Court unquestionably found an unlawful discrimination against the plaintiff class, and the class at that *399 time had not been subdivided into Subclasses A and B. Summary judgment ran in favor of the entire class, including both those members who had filed timely charges and those who had not. The Court of Appeals affirmed the summary judgment order as well as the finding of a discriminatory employment practice. The court went on, however, to hold that the District Court had no jurisdiction over claims by those who had not met the filing requirement and that those individuals should have been excluded from the class prior to the grant of summary judgment. But as we have now held, that ruling is erroneous. The District Court did have jurisdiction over nonfiling class members. Thus, there was no jurisdictional barrier to its finding of discrimination with respect to the entire class. With the reversal of the Court of Appeals judgment in No. 78-1545 and our dismissal of No. 78-1549, which had challenged the affirmance of the summary judgment order, the order that found classwide discrimination remains intact and is final. The award of retroactive seniority to members of Subclass B as well as Subclass A is not infirm for want of a finding of a discriminatory employment practice.
Equally meritless is the union's contention that retroactive seniority contrary to the collective-bargaining agreement should not be awarded over the objection of a union that has not itself been found guilty of discrimination. In Franks v. Bowman Transportation Co., 424 U. S., at 764, we read the legislative history of Title VII as giving
"emphatic confirmation that federal courts are empowered to fashion such relief as the particular circumstances of a case may require to effect restitution, making whole in so far as possible the victims of . . . discrimination . . . ."
While recognizing that backpay was the only remedy specifically mentioned in the provision, we reasoned that adequate relief might be denied without a seniority remedy. We concluded that the class-based seniority relief for identifiable victims *400 of illegal discrimination is a form of relief generally appropriate under § 706(g).
In Franks, the District Court had found both that the employer had engaged in discrimination and that the discriminatory practices were perpetuated in the collective-bargaining agreements with the unions. 424 U.S., at 751. Teamsters v. United States, 431 U.S. 324 (1977), however, makes it clear that once there has been a finding of discrimination by the employer, an award of retroactive seniority is appropriate even if there is no finding that the union has also illegally discriminated. In Teamsters, the parties agreed to a decree which provided that the District Court would decide "whether any discriminatees should be awarded additional equitable relief such as retroactive seniority." Id., at 331, n. 4. Although we held that the union had not violated Title VII by agreeing to and maintaining the seniority system, we nonetheless directed the union to remain in the litigation as a defendant so that full relief could be awarded the victims of the employer's post-Act discrimination. Id., at 356, n. 43.[14] Here, as in Teamsters, the settlement left to the District Court the final decision as to retroactive seniority.
In resolving the seniority issue, the District Court gave the union all the process that was due it under Title VII in our cases. The union was allowed to intervene. The District Court heard its objections, made appropriate findings, and determined that retroactive seniority should be awarded. The Court of Appeals agreed with that determination, and *401 we have eliminated from our consideration here the question whether on the facts of these cases the Court of Appeals and the District Court were in error in this respect.
Accordingly, the judgment in No. 78-1545 is reversed and the judgment in No. 80-951 is affirmed.
So ordered.
JUSTICE STEVENS took no part in the consideration or decision of these cases.
JUSTICE POWELL, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, concurring in No. 78-1545 and concurring in the judgment in No. 80-951.
The above cases arise out of the same protracted controversy, and the Court disposes of them in a single opinion. The only question in No. 78-1545 is whether the timely filing of an EEOC charge is a jurisdictional prerequisite to bringing a Title VII suit. I agree that timely filing is not jurisdictional and is subject to waiver and estoppel. Accordingly, I join Parts I and II of the Court's opinion.
I join only the judgment in No. 80-951. My concern with the Court's opinion is that it does not make clear that a timely charge, as well as a violation of Title VII, is a prerequisite to disturbing rights under a bona fide seniority system protected by § 703(h), 42 U.S. C. § 2000e-2(h).[1] This was made *402 clear in United Air Lines, Inc. v. Evans, 431 U.S. 553, 559 (1977), a case not discussed in the Court's opinion.[2] I nevertheless concur in the remand of No. 80-951, in which a settlement agreement was approved awarding retroactive competitive-status seniority under the standard of Franks v. Bowman Transportation Co., 424 U.S. 747 (1976). This case has been in litigation since 1970, and in view of its complexity it is difficult to be certain as to "what happened and when." I believe, however, that one can conclude that the requirements of Evans were met.
As noted in the Court's opinion, ante, at 398-399, the District Court's order finding classwide discrimination is now final. The District Court also entered an order finding that timely charges had been filed for all class members, and that order is similarly final. The timely-charge order was entered on October 15, 1976, three days before the entry of the order finding classwide discrimination. These orders were consolidated on appeal to the Court of Appeals for the Seventh Circuit. Although the October 18th order, finding discrimination, was affirmed, the Court of Appeals vacated the other order, holding that the members of Subclass B had failed to meet the jurisdictional requirements of Title VII because they had not filed timely claims. No District Court order was ever actually vacated because, on the motion of the parties, the Court of Appeals stayed its mandate, and the parties then reached a settlement. Today, the Court reverses that portion of the Court of Appeals' judgment that would have vacated the October 15th order. As a result, both the October 15th and October 18th orders, finding timely charges and classwide discrimination, are now final. *403 I therefore concur in the judgment of the Court affirming the award of retroactive competitive-status seniority under the standard of Franks v. Bowman Transportation Co.[3]
| The primary question in these cases is whether the statutory time limit for filing charges under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S. C. 2000e et seq. (1970 ed.) is a jurisdictional prerequisite to a suit in the District Court. Secondarily, we resolve a dispute as to whether retroactive seniority was a proper remedy in these Title VII cases. *388 I In 1970, the Air Line Stewards and Stewardesses Association (ALSSA), then the collective-bargaining agent of Trans World Airlines (TWA) flight attendants, brought a class action alleging that TWA practiced unlawful sex discrimination in violation of Title VII by its policy of grounding all female flight cabin attendants who became mothers, while their male counterparts who became fathers were permitted to continue flying. After collective bargaining eliminated the challenged practice prospectively, the parties in the case reached a tentative settlement. The settlement, which provided neither backpay nor retroactive seniority, was approved by the District Court. The Court of Appeals for the Seventh Circuit, however, found the union to be an inadequate representative of the class because of the inherent conflict between the interests of current and former employees. It remanded the case with instructions that the District Court name individual members of the class to replace ALSSA as the class representative.[1]Air Line Stewards and Stewardesses Upon remand, petitioners in No. 78-1545 were appointed as class representatives. TWA moved to amend its answer to assert that the claims of plaintiffs and other class members were barred by Title VII's "statute of limitations" because they had failed to file charges with the Equal Employment Opportunity Commission (EEOC) within the statutory time *389 limit. 1 Ohio App. 89a.[2] Although the District Court granted the motion to amend, it noted that the "delay in pleading the defense of limitations may well ultimately constitute a waiver of the defense." at 101a. Subsequently, on October 15, 1976, the District Court denied TWA's motion to exclude class members who had not filed timely charges with the EEOC. In support of its motion, TWA argued that instead of an affirmative defense analogous to a statute of limitations, timely filing with the EEOC is a jurisdictional prerequisite not subject to waiver by any action of the defendants. While the District Court agreed that the filing requirements of Title VII are jurisdictional, it denied the motion on the basis that any violation by the airline continued against all the class members until the airline changed the challenged policy. at 131a-132a. On October 19, 1976, the District Court granted the motion of the plaintiff class for summary judgment on the issue of TWA's liability for violating Title VII. at 133a-134a. The Court of Appeals affirmed the order of October 18, 1976, granting summary judgment on liability, expressly holding that "TWA's no motherhood policy provides a clear example of sex discrimination prohibited by 2000e-2(a)." In re Consolidated Pretrial Proceedings in the Airline Cases, It declined, however, "to extend the continuing violation theory, as did the district court, so as to include in the plaintiff class those employees who were permanently terminated more than 90 days before the filing of EEOC charges." The Court of Appeals went on to hold that timely filing of EEOC charges was a jurisdictional prerequisite. Because TWA could not waive the timely-filing requirement, the *390 Court of Appeals found that approximately 92% of the plaintiffs' claims were jurisdictionally barred by the failure of those plaintiffs to have filed charges of discrimination with the EEOC within 90 days of the alleged unlawful employment practice. The Court of Appeals, however, stayed its mandate pending the filing of petitions in this Court. Petitions for certiorari were filed by the plaintiff class, No. 78-1545, and by TWA, No. 78-1549. This Court granted motions to defer consideration of the petitions pending completion of settlement proceedings in the District Court. In connection with the settlement proceedings, the District Court designated two subclasses. Subclass A, consisting of some 30 women, comprised those who were terminated on or after March 2, 1970, as well as those who were discharged earlier, but who had accepted reinstatement in ground duty positions. Subclass B, numbering some 400 women, covered all other members of the class and consisted of those whose claims the Court of Appeals had found to be jurisdictionally barred for failure to satisfy the timely-filing requirement. The proposed settlement divided $3 million between the two groups. It also provided each class member with full company and union seniority from the date of termination. The agreement specified that "in the event of the timely objection of any interested person, it is agreed that the amount of seniority and credit for length of service for the compensation period will be determined by the Court in its discretion, pursuant to the provisions of Section 706(g), and all other applicable provisions of law, without contest or objection by TWA."[3] App. to Pet. for Cert. in No. 80-951, p. 29a. *391 The Independent Federation of Flight Attendants (union), which had replaced ALSSA as the collective-bargaining agent for the flight attendants, was permitted to intervene and to object to the settlement. On the basis that the Court of Appeals had not issued the mandate in its jurisdictional decision, the District Court rejected the union's challenge to its jurisdiction over Subclass B. at 14a-15a. After holding three days of hearings, the District Court approved the settlement and awarded competitive seniority. It explicitly found that full restoration of retroactive seniority would not have an unusual adverse impact upon currently employed flight attendants in any way atypical of Title VII cases. at 18a-19a. The union appealed. It argued that, because of the Court of Appeals' earlier opinion, the District Court lacked jurisdiction to approve the settlement or to order retroactive seniority with respect to Subclass B. The Court of Appeals affirmed, reasoning that "the principles favoring settlement of class action lawsuits remain the same regardless of whether the disputed legal issues center on the jurisdiction of the court over the action." Air Line Stewards and Stewardesses It further explained that the question of jurisdiction as to Subclass B had not been finally determined because a challenge to its decision was pending before this Court and observed that the Courts of Appeals were split on the issue. The Court of Appeals noted that the District Court clearly had subject-matter jurisdiction over the claims of Subclass A. It concluded: "Where, as here, the jurisdictional question is not settled with finality, parties should not be forced to litigate the issue of jurisdiction if they can arrive at a settlement *392 that is otherwise appropriate for district court approval." The Court of Appeals also affirmed the award of seniority. According to the court, the settlement served the public policy of remedying past acts of sex discrimination and the consequences of those past acts. Moreover, "[t]he right to have its objections heard does not, of course, give the intervenor the right to block any settlement to which it objects." [4] The union petitioned for certiorari, No. 80-951. We granted its petition together with the petitions in No. 78-1545 and No. 78-1549, but later removed the TWA case, No. 78-1549,[5] from the argument docket and limited the grant in No. 80-951. II The single question in No. 78-1545 is whether the timely filing of an EEOC charge is a jurisdictional prerequisite to bringing a Title VII suit in federal court or whether the requirement is subject to waiver and estoppel. In reaching its decision that the requirement is jurisdictional, the Court of Appeals for the Seventh Circuit relied on its reading of the statutory language, the absence of any indication to the contrary *393 in the legislative history, and references in several of our cases to the 90-day filing requirement as "jurisdictional."[6] Other Courts of Appeals that have examined the same materials have reached the opposite conclusion.[7] We hold that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.[8] The structure of Title VII, the congressional policy underlying it, and the reasoning of our cases all lead to this conclusion. The provision granting district courts jurisdiction under Title VII, 42 U.S. C. 2000e-5(e) and (f), does not limit jurisdiction to those cases in which there has been a timely filing with the EEOC.[9] It contains no reference to the timely-filing *394 requirement. The provision specifying the time for filing charges with the EEOC appears as an entirely separate provision, and it does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts.[10] The legislative history of the filing provision is sparse, but Senator Humphrey did characterize the time period for filing a claim as a "period of limitations," 110 Cong. Rec. 12723 (1964), and Senator Case described its purpose as preventing the pressing of "stale" claims, the end served by a statute of limitations. Although subsequent legislative history is not dispositive, see Seatrain Shipbuilding ; the legislative history of the 1972 amendments also indicates that Congress intended the filing period to operate as a statute of limitations instead of a jurisdictional requirement. In the final Conference Committee section-by-section analysis of H. R. 1746, The Equal Opportunity Act of 1972, 118 Cong. Rec. 7166, 7167 the Committee not only termed the filing period a "time limitation," but explained: "This subsection as amended provides that charges be filed within 180 days of the alleged unlawful employment practice. Court decisions under the present law have *395 shown an inclination to interpret this time limitation so as to give the aggrieved person the maximum benefit of the law; it is not intended that such court decisions should be in any way circumscribed by the extension of the time limitations in this subsection."[11] This result is entirely consistent with prior case law. Although our cases contain scattered references to the timely-filing requirement as jurisdictional, the legal character of the requirement was not at issue in those cases, and as or more often in the same or other cases, we have referred to the provision as a limitations statute.[12] *396 More weighty inferences however, are to be drawn from other cases. was a Title VII suit against an employer and a union. The District Court denied relief for unnamed class members on the ground that those individuals had not filed administrative charges under the provisions of Title VII and that relief for them was thus not appropriate. The Court of Appeals did not disturb this ruling, but we reversed, saying: "The District Court stated two reasons for its denial of seniority relief for the unnamed class members. The first was that those individuals had not filed administrative charges under the provision of Title VII with the Equal Employment Opportunity Commission and therefore class relief of this sort was not appropriate. We rejected this justification for denial of class-based relief in the context of backpay awards in Albemarle Paper] and reject it here. This justification for denying class-based relief in Title VII suits has been unanimously rejected by the courts of appeals, and Congress ratified that construction by the 1972 amendments." *397 If the timely-filing requirement were to limit the jurisdiction of the District Court to those claimants who have filed timely charges with the EEOC, the District Courts in Franks and Albemarle Paper would have been without jurisdiction to adjudicate the claims of those who had not filed as well as without jurisdiction to award them seniority. We did not so hold. Furthermore, we noted that Congress had approved the Court of Appeals cases that awarded relief to class members who had not exhausted administrative remedies before the EEOC. It is evident that in doing so, Congress necessarily adopted the view that the provision for filing charges with the EEOC should not be construed to erect a jurisdictional prerequisite to suit in the district court. In we announced a guiding principle for construing the provisions of Title VII. Declining to read literally another filing provision of Title VII, we explained that a technical reading would be "particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process." That principle must be applied here as well. The reasoning of other cases assumes that the filing requirement is not jurisdictional. In Electrical we rejected the argument that the timely-filing requirement should be tolled because the plaintiff had been pursuing a grievance procedure set up in the collective-bargaining agreement. We did not reach this decision on the basis that the 180-day period was jurisdictional. Instead, we considered the merits of a series of arguments that grievance procedures should toll the requirement. Such reasoning would have been gratuitous if the filing requirement were a jurisdictional prerequisite.[13] *398 Similarly, we did not sua sponte dismiss the action in Mohasco on the basis that the District Court lacked jurisdiction because of plaintiff's failure to comply with a related Title VII time provision. Instead, we merely observed in a footnote that "[p]etitioner did not assert respondent's failure to file the action within 90 days as a defense." By holding compliance with the filing period to be not a jurisdictional prerequisite to filing a Title VII suit, but a requirement subject to waiver as well as tolling when equity so requires, we honor the remedial purpose of the legislation as a whole without negating the particular purpose of the filing requirement, to give prompt notice to the employer. We therefore reverse the Court of Appeals in No. 78-1545. III In No. 80-951, the union challenges on several grounds the District Court's authority to award, over the union's objection, retroactive seniority to the members of Subclass B. We have already rejected the union's first contention, namely, that the District Court had no jurisdiction to award relief to those who had not complied with Title VII's filing requirement. The union also contends that in any event there has been no finding of discrimination with respect to Subclass B members and that the predicate for relief under 706(g) is therefore missing. This contention is also without merit. The District Court unquestionably found an unlawful discrimination against the plaintiff class, and the class at that *399 time had not been subdivided into Subclasses A and B. Summary judgment ran in favor of the entire class, including both those members who had filed timely charges and those who had not. The Court of Appeals affirmed the summary judgment order as well as the finding of a discriminatory employment practice. The court went on, however, to hold that the District Court had no jurisdiction over claims by those who had not met the filing requirement and that those individuals should have been excluded from the class prior to the grant of summary judgment. But as we have now held, that ruling is erroneous. The District Court did have jurisdiction over nonfiling class members. Thus, there was no jurisdictional barrier to its finding of discrimination with respect to the entire class. With the reversal of the Court of Appeals judgment in No. 78-1545 and our dismissal of No. 78-1549, which had challenged the affirmance of the summary judgment order, the order that found classwide discrimination remains intact and is final. The award of retroactive seniority to members of Subclass B as well as Subclass A is not infirm for want of a finding of a discriminatory employment practice. Equally meritless is the union's contention that retroactive seniority contrary to the collective-bargaining agreement should not be awarded over the objection of a union that has not itself been found guilty of discrimination. In we read the legislative history of Title VII as giving "emphatic confirmation that federal courts are empowered to fashion such relief as the particular circumstances of a case may require to effect restitution, making whole in so far as possible the victims of discrimination" While recognizing that backpay was the only remedy specifically mentioned in the provision, we reasoned that adequate relief might be denied without a seniority remedy. We concluded that the class-based seniority relief for identifiable victims *400 of illegal discrimination is a form of relief generally appropriate under 706(g). In Franks, the District Court had found both that the employer had engaged in discrimination and that the discriminatory practices were perpetuated in the collective-bargaining agreements with the however, makes it clear that once there has been a finding of discrimination by the employer, an award of retroactive seniority is appropriate even if there is no finding that the union has also illegally discriminated. In Teamsters, the parties agreed to a decree which provided that the District Court would decide "whether any discriminatees should be awarded additional equitable relief such as retroactive seniority." Although we held that the union had not violated Title VII by agreeing to and maintaining the seniority system, we nonetheless directed the union to remain in the litigation as a defendant so that full relief could be awarded the victims of the employer's post-Act discrimination.[14] Here, as in Teamsters, the settlement left to the District Court the final decision as to retroactive seniority. In resolving the seniority issue, the District Court gave the union all the process that was due it under Title VII in our cases. The union was allowed to intervene. The District Court heard its objections, made appropriate findings, and determined that retroactive seniority should be awarded. The Court of Appeals agreed with that determination, and *401 we have eliminated from our consideration here the question whether on the facts of these cases the Court of Appeals and the District Court were in error in this respect. Accordingly, the judgment in No. 78-1545 is reversed and the judgment in No. 80-951 is affirmed. So ordered. JUSTICE STEVENS took no part in the consideration or decision of these cases. JUSTICE POWELL, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, concurring in No. 78-1545 and concurring in the judgment in No. 80-951. The above cases arise out of the same protracted controversy, and the Court disposes of them in a single opinion. The only question in No. 78-1545 is whether the timely filing of an EEOC charge is a jurisdictional prerequisite to bringing a Title VII suit. I agree that timely filing is not jurisdictional and is subject to waiver and estoppel. Accordingly, I join Parts I and II of the Court's opinion. I join only the judgment in No. 80-951. My concern with the Court's opinion is that it does not make clear that a timely charge, as well as a violation of Title VII, is a prerequisite to disturbing rights under a bona fide seniority system protected by 703(h), 42 U.S. C. 2000e-2(h).[1] This was made *402 clear in United Air Lines, a case not discussed in the Court's opinion.[2] I nevertheless concur in the remand of No. 80-951, in which a settlement agreement was approved awarding retroactive competitive-status seniority under the standard of This case has been in litigation since 1970, and in view of its complexity it is difficult to be certain as to "what happened and when." I believe, however, that one can conclude that the requirements of Evans were met. As noted in the Court's opinion, ante, at 398-399, the District Court's order finding classwide discrimination is now final. The District Court also entered an order finding that timely charges had been filed for all class members, and that order is similarly final. The timely-charge order was entered on October 15, 1976, three days before the entry of the order finding classwide discrimination. These orders were consolidated on appeal to the Court of Appeals for the Seventh Circuit. Although the October 18th order, finding discrimination, was affirmed, the Court of Appeals vacated the other order, holding that the members of Subclass B had failed to meet the jurisdictional requirements of Title VII because they had not filed timely claims. No District Court order was ever actually vacated because, on the motion of the parties, the Court of Appeals stayed its mandate, and the parties then reached a settlement. Today, the Court reverses that portion of the Court of Appeals' judgment that would have vacated the October 15th order. As a result, both the October 15th and October 18th orders, finding timely charges and classwide discrimination, are now final. *403 I therefore concur in the judgment of the Court affirming the award of retroactive competitive-status seniority under the standard of [3] |
Justice Kagan | majority | false | Milner v. Department of Navy | 2011-03-07T00:00:00 | null | https://www.courtlistener.com/opinion/206187/milner-v-department-of-navy/ | https://www.courtlistener.com/api/rest/v3/clusters/206187/ | 2,011 | 2010-026 | 2 | 8 | 1 | The Freedom of Information Act (FOIA), 5 U.S. C. §552,
requires federal agencies to make Government records
available to the public, subject to nine exemptions for
specific categories of material. This case concerns the
scope of Exemption 2, which protects from disclosure
material that is “related solely to the internal personnel
rules and practices of an agency.” §552(b)(2). Respondent
Department of the Navy (Navy or Government) invoked
Exemption 2 to deny a FOIA request for data and maps
used to help store explosives at a naval base in Washing
ton State. We hold that Exemption 2 does not stretch so
far.
I
Congress enacted FOIA to overhaul the public
disclosure section of the Administrative Procedure Act
(APA), 5 U.S. C. §1002 (1964 ed.). That section of the
APA “was plagued with vague phrases” and gradually
became more “a withholding statute than a disclosure
statute.” EPA v. Mink, 410 U.S. 73, 79 (1973). Congress
intended FOIA to “permit access to official information
2 MILNER v. DEPARTMENT OF NAVY
Opinion of the Court
long shielded unnecessarily from public view.” Id., at 80.
FOIA thus mandates that an agency disclose records on
request, unless they fall within one of nine exemptions.
These exemptions are “explicitly made exclusive,” id., at
79, and must be “narrowly construed,” FBI v. Abramson,
456 U.S. 615, 630 (1982).
At issue here is Exemption 2, which shields from com
pelled disclosure documents “related solely to the internal
personnel rules and practices of an agency.” §552(b)(2).
Congress enacted Exemption 2 to replace the APA’s ex
emption for “any matter relating solely to the internal
management of an agency,” 5 U.S. C. §1002 (1964 ed.).
Believing that the “sweep” of the phrase “internal man
agement” had led to excessive withholding, Congress
drafted Exemption 2 “to have a narrower reach.” Depart
ment of Air Force v. Rose, 425 U.S. 352, 362–363 (1976).
We considered the extent of that reach in Department of
Air Force v. Rose. There, we rejected the Government’s
invocation of Exemption 2 to withhold case summaries of
honor and ethics hearings at the United States Air Force
Academy. The exemption, we suggested, primarily targets
material concerning employee relations or human re
sources: “use of parking facilities or regulations of lunch
hours, statements of policy as to sick leave, and the like.”
Id., at 363 (quoting S. Rep. No. 813, 89th Cong., 1st Sess.,
8 (1965) (hereinafter S. Rep.)); see Rose, 425 U.S., at 367.
“[T]he general thrust” of Exemption 2, we explained, “is
simply to relieve agencies of the burden of assembling and
maintaining [such information] for public inspection.” Id.,
at 369. We concluded that the case summaries did not fall
within the exemption because they “d[id] not concern only
routine matters” of “merely internal significance.” Id., at
370. But we stated a possible caveat to our interpretation
of Exemption 2: That understanding of the provision’s
coverage governed, we wrote, “at least where the situation
Cite as: 562 U. S. ____ (2011) 3
Opinion of the Court
is not one where disclosure may risk circumvention of
agency regulation.” Id., at 369.
In Crooker v. Bureau of Alcohol, Tobacco & Firearms,
670 F.2d 1051 (1981), the D. C. Circuit converted this
caveat into a new definition of Exemption 2’s scope.
Crooker approved the use of Exemption 2 to shield a man
ual designed to train Government agents in law enforce
ment surveillance techniques. The D. C. Circuit noted
that it previously had understood Exemption 2 to “refe[r]
only to ‘pay, pensions, vacations, hours of work, lunch
hours, parking, etc.’ ” Id., at 1056 (quoting Jordan v.
Department of Justice, 591 F.2d 753, 763 (1978)). But the
court now thought Exemption 2 should also cover any
“predominantly internal” materials,1 Crooker, 670 F.2d,
at 1056–1057, whose disclosure would “significantly ris[k]
circumvention of agency regulations or statutes,” id., at
1074. This construction of Exemption 2, the court rea
soned, flowed from FOIA’s “overall design,” its legislative
history, “and even common sense,” because Congress could
not have meant to “enac[t] a statute whose provisions
undermined . . . the effectiveness of law enforcement
agencies.” Ibid.
In the ensuing years, three Courts of Appeals adopted
the D. C. Circuit’s interpretation of Exemption 2. See 575
F.3d 959, 965 (CA9 2009) (case below); Massey v. FBI, 3
F.3d 620, 622 (CA2 1993); Kaganove v. EPA, 856 F.2d
884, 889 (CA7 1988).2 And that interpretation spawned a
——————
1 The court adopted the “predominantly internal” standard as a way
of implementing the exemption’s requirement that materials “relat[e]
solely to” an agency’s internal personnel rules and practices. The
word “solely,” the court reasoned, “has to be given the construction,
consonant with reasonableness, of ‘predominantly’ ” because otherwise
“solely” would conflict with the expansive term “related.” 670 F.2d, at
1056 (some internal quotation marks omitted).
2 Three other Courts of Appeals had previously taken a narrower view
of Exemption 2’s scope, consistent with the interpretation adopted in
4 MILNER v. DEPARTMENT OF NAVY
Opinion of the Court
new terminology: Courts applying the Crooker approach
now refer to the “Low 2” exemption when discussing mate
rials concerning human resources and employee relations,
and to the “High 2” exemption when assessing records
whose disclosure would risk circumvention of the law.
See, e.g., 575 F.3d, at 963; Schiller v. NLRB, 964 F.2d
1205, 1208 (CADC 1992). Congress, as well, took notice of
the D. C. Circuit’s decision, borrowing language from
Crooker to amend Exemption 7(E) when next enacting
revisions to FOIA. The amended version of Exemption
7(E) shields certain “records or information compiled for
law enforcement purposes” if their disclosure “could rea
sonably be expected to risk circumvention of the law.”
§552(b)(7)(E); see Freedom of Information Reform Act of
1986, §1802(a), 100 Stat. 3207–49.
II
The FOIA request at issue here arises from the Navy’s
operations at Naval Magazine Indian Island, a base in
Puget Sound, Washington. The Navy keeps weapons,
ammunition, and explosives on the island. To aid in the
storage and transport of these munitions, the Navy uses
data known as Explosive Safety Quantity Distance
(ESQD) information. 575 F.3d, at 962. ESQD informa
tion prescribes “minimum separation distances” for explo
sives and helps the Navy design and construct storage
——————
Rose. See Cox v. Department of Justice, 576 F.2d 1302, 1309–1310
(CA8 1978) (concluding that Exemption 2 covers only an agency’s
internal “housekeeping matters” (internal quotation marks omitted));
Stokes v. Brennan, 476 F.2d 699, 703 (CA5 1973) (holding that Exemp
tion 2 “must not be read so broadly as to exempt” an Occupational
Safety and Health Administration manual for training compliance
officers); Hawkes v. IRS, 467 F.2d 787, 797 (CA6 1972) (“[T]he internal
practices and policies referred to in [Exemption 2] relate only to . . .
employee-employer type concerns”). These Circuits have never revised
their understandings of the exemption. See infra, at 13, n. 7.
Cite as: 562 U. S. ____ (2011) 5
Opinion of the Court
facilities to prevent chain reactions in case of detonation.
Ibid. The ESQD calculations are often incorporated into
specialized maps depicting the effects of hypothetical
explosions. See, e.g., App. 52.
In 2003 and 2004, petitioner Glen Milner, a Puget
Sound resident, submitted FOIA requests for all ESQD
information relating to Indian Island. 575 F.3d, at 962.
The Navy refused to release the data, stating that disclo
sure would threaten the security of the base and surround
ing community. In support of its decision to withhold the
records, the Navy invoked Exemption 2. Ibid.3
The District Court granted summary judgment to the
Navy, and the Court of Appeals affirmed, relying on the
High 2 interpretation developed in Crooker. 575 F.3d, at
963. The Court of Appeals explained that the ESQD
information “is predominantly used for the internal pur
pose of instructing agency personnel on how to do their
jobs.” Id., at 968. And disclosure of the material, the
court determined, “would risk circumvention of the law”
by “point[ing] out the best targets for those bent on wreak
ing havoc”—for example, “[a] terrorist who wished to hit
the most damaging target.” Id., at 971. The ESQD infor
mation, the court concluded, therefore qualified for a High
2 exemption. 575 F.3d, at 971.
We granted certiorari in light of the Circuit split re
specting Exemption 2’s meaning, 561 U. S. ___ (2010), and
we now reverse.
——————
3 The Navy also invoked Exemption 7(F), which applies to “records or
information compiled for law enforcement purposes, but only to the
extent that the production of such . . . records . . . could reasonably be
expected to endanger the life or physical safety of any individual.” 5
U.S. C. §552(b)(7)(F). The courts below did not decide whether the
Navy could withhold the ESQD data under that exemption. 575 F.3d
959, 971, n. 8 (CA9 2009); No. CV–06–01301 (WD Wash., Oct. 30, 2007),
App. to Pet. for Cert. 4, 25, 2007 WL 3228049, *8.
6 MILNER v. DEPARTMENT OF NAVY
Opinion of the Court
III
Our consideration of Exemption 2’s scope starts with its
text. See, e.g., Park ’N Fly, Inc. v. Dollar Park & Fly, Inc.,
469 U.S. 189, 194 (1985) (“Statutory construction must
begin with the language employed by Congress and the
assumption that the ordinary meaning of that language
accurately expresses the legislative purpose”). Judicial
decisions since FOIA’s enactment have analyzed and
reanalyzed the meaning of the exemption. But compara
tively little attention has focused on the provision’s 12
simple words: “related solely to the internal personnel
rules and practices of an agency.”
The key word in that dozen—the one that most clearly
marks the provision’s boundaries—is “personnel.” When
used as an adjective, as it is here to modify “rules and
practices,” that term refers to human resources matters.
“Personnel,” in this common parlance, means “the selec
tion, placement, and training of employees and . . . the
formulation of policies, procedures, and relations with [or
involving] employees or their representatives.” Webster’s
Third New International Dictionary 1687 (1966) (hereinaf
ter Webster’s). So, for example, a “personnel department”
is “the department of a business firm that deals with
problems affecting the employees of the firm and that
usually interviews applicants for jobs.” Random House
Dictionary 1075 (1966) (hereinafter Random House).
“Personnel management” is similarly “the phase of man
agement concerned with the engagement and effective
utilization of manpower to obtain optimum efficiency of
human resources.” Webster’s 1687. And a “personnel
agency” is “an agency for placing employable persons in
jobs; employment agency.” Random House 1075.
FOIA itself provides an additional example in Exemp
tion 6. See Ratzlaf v. United States, 510 U.S. 135, 143
(1994) (“A term appearing in several places in a statutory
Cite as: 562 U. S. ____ (2011) 7
Opinion of the Court
text is generally read the same way each time it appears”).
That exemption, just a few short paragraphs down from
Exemption 2, protects from disclosure “personnel and
medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of per
sonal privacy.” §552(b)(6). Here too, the statute uses the
term “personnel” as a modifier meaning “human re
sources.” See Tr. of Oral Arg. 32 (“[The Court:] It’s [an]
H. R. file, right? [The Government:] That’s generally
true”). As we recognized in Rose, “the common and con
gressional meaning of . . . ‘personnel file’ ” is the file “show
ing, for example, where [an employee] was born, the
names of his parents, where he has lived from time to
time, his . . . school records, results of examinations, [and]
evaluations of his work performance.” 425 U.S., at 377.
It is the file typically maintained in the human resources
office—otherwise known (to recall an example offered
above) as the “personnel department.” Ibid.
Exemption 2 uses “personnel” in the exact same way.
An agency’s “personnel rules and practices” are its rules
and practices dealing with employee relations or human
resources. The D. C. Circuit, in a pre-Crooker decision,
gave as examples “matters relating to pay, pensions,
vacations, hours of work, lunch hours, parking, etc.”
Jordan, 591 F.2d, at 763; see supra, at 3. That “etc.” is
important; we doubt any court could know enough about
the Federal Government’s operations to formulate a com
prehensive list. But all the rules and practices referenced
in Exemption 2 share a critical feature: They concern the
conditions of employment in federal agencies—such mat
ters as hiring and firing, work rules and discipline, com
pensation and benefits.4 Courts in practice have had little
——————
4 Government records also must satisfy the other requirements of
Exemption 2 to be exempt from disclosure. Information must “relat[e]
solely”—meaning, as usual, “exclusively or only,” Random House 1354
8 MILNER v. DEPARTMENT OF NAVY
Opinion of the Court
difficulty identifying the records that qualify for withhold
ing under this reading: They are what now commonly fall
within the Low 2 exemption. Our construction of the
statutory language simply makes clear that Low 2 is all of
2 (and that High 2 is not 2 at all, see infra, at 10–14).
The statute’s purpose reinforces this understanding of
the exemption. We have often noted “the Act’s goal of
broad disclosure” and insisted that the exemptions be
“given a narrow compass.” Department of Justice v. Tax
Analysts, 492 U.S. 136, 151 (1989); see Department of
Interior v. Klamath Water Users Protective Assn., 532 U.S.
1, 7–8 (2001).5 This practice of “constru[ing] FOIA exemp
tions narrowly,” Department of Justice v. Landano, 508
U.S. 165, 181 (1993), stands on especially firm footing
with respect to Exemption 2. As described earlier, Con
gress worded that provision to hem in the prior APA ex
emption for “any matter relating solely to the internal
management of an agency,” which agencies had used to
prevent access to masses of documents. See Rose, 425
U.S., at 362. We would ill-serve Congress’s purpose by
——————
—to the agency’s “personnel rules and practices.” And the information
must be “internal”; that is, the agency must typically keep the records
to itself for its own use. See Webster’s 1180 (“internal” means “existing
or situated within the limits . . . of something”). An agency’s human
resources documents will often meet these conditions.
5 The dissent would reject this longstanding rule of construction in
favor of an approach asking courts “to turn Congress’ public informa
tion objectives into workable agency practice.” Post, at 8–9 (opinion of
BREYER, J.). But nothing in FOIA either explicitly or implicitly grants
courts discretion to expand (or contract) an exemption on this basis. In
enacting FOIA, Congress struck the balance it thought right—generally
favoring disclosure, subject only to a handful of specified exemptions—
and did so across the length and breadth of the Federal Government.
See, e.g., John Doe Agency v. John Doe Corp., 493 U.S. 146, 152–153
(1989). The judicial role is to enforce that congressionally determined
balance rather than, as the dissent suggests, post, at 4–6, to assess case
by case, department by department, and task by task whether disclo
sure interferes with good government.
Cite as: 562 U. S. ____ (2011) 9
Opinion of the Court
construing Exemption 2 to reauthorize the expansive
withholding that Congress wanted to halt. Our reading
instead gives the exemption the “narrower reach” Con
gress intended, id., at 363, through the simple device of
confining the provision’s meaning to its words.
The Government resists giving “personnel” its plain
meaning on the ground that Congress, when drafting
Exemption 2, considered but chose not to enact language
exempting “internal employment rules and practices.”
Brief for Respondent 30–34, and n. 11. This drafting
history, the Navy maintains, proves that Congress did not
wish “to limit the Exemption to employment-related mat
ters,” id., at 31, even if the adjective “personnel” conveys
that meaning in other contexts, id., at 41. But we think
the Navy’s evidence insufficient: The scant history con
cerning this word change as easily supports the inference
that Congress merely swapped one synonym for another.
Cf. Mead Corp. v. Tilley, 490 U.S. 714, 723 (1989) (noting
with respect to the “unexplained disappearance of one
word from an unenacted bill” that “mute intermediate
legislative maneuvers are not reliable” aids to statutory
interpretation (internal quotation marks omitted)). Those
of us who make use of legislative history believe that clear
evidence of congressional intent may illuminate ambigu
ous text. We will not take the opposite tack of allowing
ambiguous legislative history to muddy clear statutory
language.
Exemption 2, as we have construed it, does not reach
the ESQD information at issue here. These data and
maps calculate and visually portray the magnitude of
hypothetical detonations. By no stretch of imagination do
they relate to “personnel rules and practices,” as that term
is most naturally understood. They concern the physical
rules governing explosives, not the workplace rules gov
erning sailors; they address the handling of dangerous
10 MILNER v. DEPARTMENT OF NAVY
Opinion of the Court
materials, not the treatment of employees. The Navy
therefore may not use Exemption 2, interpreted in accord
with its plain meaning to cover human resources matters,
to prevent disclosure of the requested maps and data.
IV
The Government offers two alternative readings of
Exemption 2 to support withholding the ESQD informa
tion. We cannot square either with the statute.
A
The Navy first encourages us to adopt the construction
of Exemption 2 pioneered by Crooker, which shields mate
rial not only if it meets the criteria set out above (Low 2),
but also if it is “predominant[ly] interna[l]” and its “disclo
sure would significantly risk[] circumvention of federal
agency functions” (High 2). Brief for Respondent 41 (in
ternal quotation marks omitted). The dissent, too, favors
this reading of the statute. Post, at 1. But the Crooker
interpretation, as already suggested, suffers from a patent
flaw: It is disconnected from Exemption 2’s text. The High
2 test (in addition to substituting the word “predomi
nantly” for “solely,” see n. 1, supra) ignores the plain
meaning of the adjective “personnel,” see supra, at 6–9,
and adopts a circumvention requirement with no basis or
referent in Exemption 2’s language. Indeed, the only way
to arrive at High 2 is by taking a red pen to the statute—
“cutting out some” words and “pasting in others” until
little of the actual provision remains. Elliott v. Depart
ment of Agriculture, 596 F.3d 842, 845 (CADC 2010).
Because this is so, High 2 is better labeled “Non 2” (and
Low 2 . . . just 2).
In support of its text-light approach to the statute, the
Government relies primarily on legislative history, placing
particular emphasis on the House Report concerning
FOIA. See Brief for Respondent 33–38. A statement in
that Report buttresses the High 2 understanding of the
Cite as: 562 U. S. ____ (2011) 11
Opinion of the Court
exemption and, indeed, specifically rejects the Low 2
construction. According to the Report: “Operating rules,
guidelines, and manuals of procedure for Government
investigators or examiners would be exempt from disclo
sure [under Exemption 2], but this exemption would not
cover . . . employee relations and working conditions and
routine administrative procedures.” H. R. Rep. No. 1497,
89th Cong., 2d Sess., 10 (1966). But the Senate Report
says exactly the opposite, explaining in support of a Low 2
interpretation that the phrase “internal personnel rules
and practices of an agency” means “rules as to personnel’s
use of parking facilities or regulation of lunch hours,
statements of policy as to sick leave, and the like.”
S. Rep., at 8.6 In Rose, we gave reasons for thinking the
Senate Report the more reliable of the two. See 425 U.S.,
at 366. But the more fundamental point is what we said
before: Legislative history, for those who take it into ac
count, is meant to clear up ambiguity, not create it. See
supra, at 9; Wong Yang Sung v. McGrath, 339 U.S. 33, 49
(1950) (declining to consult legislative history when that
“history is more conflicting than the text is ambiguous”).
When presented, on the one hand, with clear statutory
language and, on the other, with dueling committee re
ports, we must choose the language.
The Government also advances, in support of Crooker’s
High 2 approach, an argument based on subsequent legis
lative action. Congress, the Government notes, amended
Exemption 7(E) in 1986 to cover law enforcement records
whose production “would disclose techniques and proce
dures for law enforcement investigations or prosecutions,
——————
6 We are perplexed that the dissent takes seriously Crooker’s notion
that the reports are “reconcilable.” Post, at 4. To strip the matter to its
essentials, the House Report says: “Exemption 2 means A, but not B.”
The Senate Report says: “Exemption 2 means B.” That is the very
definition of “irreconcilable.”
12 MILNER v. DEPARTMENT OF NAVY
Opinion of the Court
or would disclose guidelines for law enforcement investi
gations or prosecutions if such disclosure could reason
ably be expected to risk circumvention of the law.”
§552(b)(7)(E). That amendment, the Government con
tends, codified Crooker’s “circumvention of the law” stan
dard and, in so doing, ratified Crooker’s holding. Brief for
Respondent 42–43. The dissent likewise counts as signifi
cant that Congress “t[ook] note” of Crooker in revising
FOIA. Post, at 9; see post, at 2.
But the Government and the dissent neglect the key
feature of the 1986 amendment: Congress modified not
Exemption 2 (the subject of Crooker), but instead Exemp
tion 7(E). And the Crooker construction of Exemption 2
renders Exemption 7(E) superfluous and so deprives that
amendment of any effect. See, e.g., TRW Inc. v. Andrews,
534 U.S. 19, 31 (2001) (noting canon that statutes should
be read to avoid making any provision “superfluous, void,
or insignificant” (internal quotation marks omitted)). We
cannot think of any document eligible for withholding
under Exemption 7(E) that the High 2 reading does not
capture: The circumvention standard is the same, and the
law enforcement records listed in Exemption 7(E) are
“predominantly internal.” So if Congress had agreed with
Crooker’s reading of Exemption 2, it would have had no
reason to alter Exemption 7(E). In that event, Congress
would either have left the statute alone (on the theory that
Crooker would do the necessary work) or would have
amended Exemption 2 specifically to ratify Crooker. The
decision instead to amend Exemption 7(E) suggests that
Congress approved the circumvention standard only as to
law enforcement materials, and not as to the wider set of
records High 2 covers. Perhaps this legislative action does
not show that Congress affirmatively disagreed with
Crooker; maybe Congress was agnostic about whether the
circumvention standard should apply to other records.
But one thing is clear: The 1986 amendment does not
Cite as: 562 U. S. ____ (2011) 13
Opinion of the Court
ratify, approve, or otherwise signal agreement with
Crooker’s interpretation of Exemption 2. This argument
therefore cannot save the High 2 construction.
The dissent offers one last reason to embrace High 2,
and indeed stakes most of its wager on this argument.
Crooker, the dissent asserts, “has been consistently relied
upon and followed for 30 years” by other lower courts.
Post, at 9; see post, at 1–2. But this claim, too, trips at the
starting gate. It would be immaterial even if true, because
we have no warrant to ignore clear statutory language on
the ground that other courts have done so. And in any
event, it is not true. Prior to Crooker, three Circuits
adopted the reading of Exemption 2 we think right, and
they have not changed their minds. See n. 2, supra.7
——————
7 The dissent’s view that “two of th[ese] Circuits [have] not adher[ed]
to their early positions” is incorrect. Post, at 2. In Abraham & Rose,
P.L.C. v. United States, cited by the dissent, the Sixth Circuit rejected
the Government’s claim that Exemption 2 shielded records of federal
tax lien filings. 138 F.3d 1075, 1082 (1998). The court nowhere
discussed the High 2 versus Low 2 question at issue here. Its only
reference to Crooker concerned the part of that decision interpreting
“solely” to mean “predominantly.” See 138 F.3d, at 1080; see also n. 1,
supra. Subsequently, the Sixth Circuit once again held, in Rugiero v.
Department of Justice, that Exemption 2 applies to “routine matters of
merely internal significance.” 257 F.3d 534, 549 (2001). In Sladek v.
Bensinger, which the dissent also cites, the Fifth Circuit insisted that
the Government disclose a Drug Enforcement Administration agent’s
manual because it “is not the type of trivial rule, such as allocation of
parking facilities, that is covered by Exemption 2.” 605 F.2d 899, 902
(1979). In confirming this Low 2 interpretation of the statute, the court
acknowledged that another Circuit had embraced the High 2 standard.
The court, however, declined to consider this alternative interpretation
because it would not have changed the case’s outcome. See ibid.
Finally, the Eighth Circuit’s last word on Exemption 2 is clear, and the
dissent does not say otherwise. The exemption, according to that most
recent Eighth Circuit decision, applies “only [to an agency’s] housekeep
ing matters.” Cox, 576 F.2d, at 1309–1310 (internal quotation marks
omitted). The dissent is surely right to say, post at 2, that Crooker “has
guided nearly every FOIA case decided over the last 30 years” in
14 MILNER v. DEPARTMENT OF NAVY
Opinion of the Court
Since Crooker, three other Circuits have accepted the High
2 reading. See supra, at 3. One Circuit has reserved
judgment on the High 2-Low 2 debate. See Audubon
Society v. Forest Serv., 104 F.3d 1201, 1203–1204 (CA10
1997). And the rest have not considered the matter. (No
one should think Crooker has been extensively discussed
or debated in the Courts of Appeals. In the past three
decades, Crooker’s analysis of Exemption 2 has been cited
a sum total of five times in federal appellate decisions
outside the D. C. Circuit—on average, once every six
years.) The result is a 4 to 3 split among the Circuits.8
We will not flout all usual rules of statutory interpretation
to take the side of the bare majority.
B
Presumably because Crooker so departs from Exemption
2’s language, the Government also offers another con
struction, which it says we might adopt “on a clean slate,”
“based on the plain text . . . alone.” Brief for Respondent
15. On this reading, the exemption “encompasses records
concerning an agency’s internal rules and practices for its
personnel to follow in the discharge of their governmental
functions.” Id., at 20; see also id., at 13–14 (Exemption 2
“applies generally to matters concerning internal rules
and practices to guide agency personnel in performing
——————
Circuits applying Crooker; but that statement does not hold in the
Circuits using the Low 2 approach.
8 Notably, even those courts approving Crooker have disagreed about
how to apply High 2. Fault lines include whether the risk of circum
vention must be significant, see, e.g., Hidalgo v. FBI, 541 F. Supp. 2d
250, 253 (DC 2008); Pet. for Cert. 15–16; whether courts should con
sider the public interest in disclosure when calculating that risk, see,
e.g., Department of Justice, Guide to the Freedom of Information Act,
p. 185 (2009); and whether an agency must regulate the person or
entity threatening circumvention; compare, e.g., 575 F.3d, at 971, with,
e.g., id., at 978 (W. Fletcher, J., dissenting). The disagreement is not
surprising. Because High 2 is nowhere evident in the statute, courts
lack the normal guideposts for ascertaining its coverage.
Cite as: 562 U. S. ____ (2011) 15
Opinion of the Court
their duties”). According to the Government, this inter
pretation makes sense because “the phrase ‘personnel
rules and practices of an agency’ is logically understood to
mean an agency’s rules and practices for its personnel.”
Id., at 20 (emphasis added).
But the purported logic in the Government’s definition
eludes us. We would not say, in ordinary parlance, that a
“personnel file” is any file an employee uses, or that a
“personnel department” is any department in which an
employee serves. No more would we say that a “personnel
rule or practice” is any rule or practice that assists an
employee in doing her job. The use of the term “personnel”
in each of these phrases connotes not that the file or de
partment or practice/rule is for personnel, but rather that
the file or department or practice/rule is about personnel—
i.e., that it relates to employee relations or human re
sources. This case well illustrates the point. The records
requested, as earlier noted, are explosives data and maps
showing the distances that potential blasts travel. This
information no doubt assists Navy personnel in storing
munitions. But that is not to say that the data and maps
relate to “personnel rules and practices.” No one staring
at these charts of explosions and using ordinary language
would describe them in this manner.
Indeed, the Government’s “clean slate” construction
reaches such documents only by stripping the word “per
sonnel” of any real meaning. Under this interpretation,
an agency’s “internal personnel rules and practices” ap
pears to mean all its internal rules and practices. That is
because agencies necessarily operate through personnel,
and so all their internal rules and practices are for per
sonnel. The modifier “personnel,” then, does no modifying
work; it does not limit the class of internal rules and
practices that Exemption 2 covers. What is most naturally
viewed as the provision’s key word—the term that ought
16 MILNER v. DEPARTMENT OF NAVY
Opinion of the Court
to define its scope—does nothing more than state the
truism that in an agency it is “personnel” who follow
internal rules and practices.
And this odd reading would produce a sweeping exemp
tion, posing the risk that FOIA would become less a dis
closure than “a withholding statute.” Mink, 410 U.S., at
79. Many documents an agency generates in some way
aid employees in carrying out their responsibilities. If
Exemption 2 were to reach all these records, it would tend
to engulf other FOIA exemptions, rendering ineffective the
limitations Congress placed on their application. Exemp
tion 7, for example, shields records compiled for law en
forcement purposes, but only if one of six specified criteria
is met. §552(b)(7). Yet on the Government’s view, an
agency could bypass these restrictions by invoking Exemp
tion 2 whenever law enforcement records guide personnel
in performing their duties. Indeed, an agency could use
Exemption 2 as an all-purpose back-up provision to with
hold sensitive records that do not fall within any of FOIA’s
more targeted exemptions.9
——————
9 The dissent asserts that “30 years of experience” with a more expan
sive interpretation of the exemption suggests no “seriou[s] inter
fere[nce] with . . . FOIA’s informational objectives.” Post, at 6. But
those objectives suffer any time an agency denies a FOIA request based
on an improper interpretation of the statute. To give just one example,
the U. S. Forest Service has wrongly invoked Exemption 2 on multiple
occasions to withhold information about (of all things) bird nesting
sites. See Audubon Society v. Forest Serv., 104 F.3d 1201, 1203 (CA10
1997); Maricopa Audubon Soc. v. Forest Serv., 108 F.3d 1082, 1084
(CA9 1997). And recent statistics raise a concern that federal agencies
may too readily use Exemption 2 to refuse disclosure. According to
amicus Public Citizen, “while reliance on exemptions overall rose 83%
from 1998 to 2006, reliance on Exemption 2 rose 344% during that
same time period.” Brief for Public Citizen et al. as Amici Curiae 24.
In 2009 alone, federal departments cited Exemption 2 more than 72,000
times to prevent access to records. See Brief for Allied Daily Newspa
pers of Washington et al. as Amici Curiae 3. We do not doubt that
many of these FOIA denials were appropriate. But we are unable to
Cite as: 562 U. S. ____ (2011) 17
Opinion of the Court
Interpreted in this way, Exemption 2—call it “Super 2”
now—would extend, rather than narrow, the APA’s former
exemption for records relating to the “internal manage
ment of an agency.” 5 U.S. C. §1002 (1964 ed.). We doubt
that even the “internal management” provision, which
Congress thought allowed too much withholding, see
supra, at 2, would have protected all information that
guides employees in the discharge of their duties, includ
ing the explosives data and maps in this case. And per
haps needless to say, this reading of Exemption 2 violates
the rule favoring narrow construction of FOIA exemptions.
See, e.g., Abramson, 456 U.S., at 630; Rose, 425 U.S., at
361. Super 2 in fact has no basis in the text, context, or
purpose of FOIA, and we accordingly reject it.
V
Although we cannot interpret Exemption 2 as the Gov
ernment proposes, we recognize the strength of the Navy’s
interest in protecting the ESQD data and maps and other
similar information. The Government has informed us
that “[p]ublicly disclosing the [ESQD] information would
significantly risk undermining the Navy’s ability to safely
and securely store military ordnance,” Brief for Respon
dent 47, and we have no reason to doubt that representa
tion. The Ninth Circuit similarly cautioned that disclo
sure of this information could be used to “wrea[k] havoc”
and “make catastrophe more likely.” 575 F.3d, at 971.
Concerns of this kind—a sense that certain sensitive
information should be exempt from disclosure—in part led
the Crooker court to formulate the High 2 standard. See
670 F.2d, at 1074 (contending that “common sense” sup
ported the High 2 interpretation because Congress would
not have wanted FOIA to “undermin[e] . . . the effective
——————
accept the dissent’s unsupported declaration that a sweeping construc
tion of Exemption 2 has not interfered with Congress’s goal of broad
disclosure.
18 MILNER v. DEPARTMENT OF NAVY
Opinion of the Court
ness of law enforcement agencies”). And we acknowledge
that our decision today upsets three decades of agency
practice relying on Crooker, and therefore may force con
siderable adjustments.
We also note, however, that the Government has other
tools at hand to shield national security information and
other sensitive materials. Most notably, Exemption 1 of
FOIA prevents access to classified documents. §552(b)(1);
see 575 F.3d, at 980 (W. Fletcher, J., dissenting) (Exemp
tion 1 is “specifically designed to allow government agen
cies to withhold information that might jeopardize our
national security”). The Government generally may clas
sify material even after receiving a FOIA request, see
Exec. Order No. 13526, §1.7(d), 75 Fed. Reg. 711 (2009);
an agency therefore may wait until that time to decide
whether the dangers of disclosure outweigh the costs of
classification. See Tr. of Oral Arg. 29–30. Exemption 3
also may mitigate the Government’s security concerns.
That provision applies to records that any other statute
exempts from disclosure, §552(b)(3), thus offering Con
gress an established, streamlined method to authorize the
withholding of specific records that FOIA would not oth
erwise protect. And Exemption 7, as already noted, pro
tects “information compiled for law enforcement purposes”
that meets one of six criteria, including if its release “could
reasonably be expected to endanger the life or physical
safety of any individual.” §552(b)(7)(F). The Navy argued
below that the ESQD data and maps fall within Exemp
tion 7(F), see n. 3, supra, and that claim remains open for
the Ninth Circuit to address on remand.
If these or other exemptions do not cover records whose
release would threaten the Nation’s vital interests, the
Government may of course seek relief from Congress. See
Tr. of Oral Arg. 48. All we hold today is that Congress has
not enacted the FOIA exemption the Government desires.
Cite as: 562 U. S. ____ (2011) 19
Opinion of the Court
We leave to Congress, as is appropriate, the question
whether it should do so.
VI
Exemption 2, consistent with the plain meaning of the
term “personnel rules and practices,” encompasses only
records relating to issues of employee relations and human
resources. The explosives maps and data requested here
do not qualify for withholding under that exemption. We
therefore 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: 562 U. S. ____ (2011) 1
ALITO, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–1163
_________________
GLEN SCOTT MILNER, PETITIONER v. | The Freedom of Information Act (FOIA), 5 U.S. C. requires federal agencies to make Government records available to the public, subject to nine exemptions for specific categories of material. This case concerns the scope of Exemption 2, which protects from disclosure material that is “related solely to the internal personnel rules and practices of an agency.” Respondent Department of the Navy (Navy or Government) invoked Exemption 2 to deny a FOIA request for data and maps used to help store explosives at a naval base in Washing ton State. We hold that Exemption 2 does not stretch so far. I Congress enacted FOIA to overhaul the public disclosure section of the Administrative Procedure Act (APA), 5 U.S. C. (964 ed.). That section of the APA “was plagued with vague phrases” and gradually became more “a withholding statute than a disclosure statute.” Congress intended FOIA to “permit access to official information 2 MILNER v. DEPARTMENT OF NAVY Opinion of the Court long shielded unnecessarily from public view.” FOIA thus mandates that an agency disclose records on request, unless they fall within one of nine exemptions. These exemptions are “explicitly made exclusive,” at and must be “narrowly construed,” At issue here is Exemption 2, which shields from com pelled disclosure documents “related solely to the internal personnel rules and practices of an agency.” Congress enacted Exemption 2 to replace the APA’s ex emption for “any matter relating solely to the internal management of an agency,” 5 U.S. C. (964 ed.). Believing that the “sweep” of the phrase “internal man agement” had led to excessive withholding, Congress drafted Exemption 2 “to have a narrower reach.” Depart ment of Air We considered the extent of that reach in Department of Air There, we rejected the Government’s invocation of Exemption 2 to withhold case summaries of honor and ethics hearings at the United States Air Force Academy. The exemption, we suggested, primarily targets material concerning employee relations or human re sources: “use of parking facilities or regulations of lunch hours, statements of policy as to sick leave, and the like.” (quoting S. Rep. No. 8, 89th Cong., st Sess., 8 (965) (hereinafter S. Rep.)); see “[T]he general thrust” of Exemption 2, we explained, “is simply to relieve agencies of the burden of assembling and maintaining [such information] for public inspection.” We concluded that the case summaries did not fall within the exemption because they “d[id] not concern only routine matters” of “merely internal significance.” at 70. But we stated a possible caveat to our interpretation of Exemption 2: That understanding of the provision’s coverage governed, we wrote, “at least where the situation Cite as: 562 U. S. (20) Opinion of the Court is not one where disclosure may risk circumvention of agency regulation.” In the D. C. Circuit converted this caveat into a new definition of Exemption 2’s scope. Crooker approved the use of Exemption 2 to shield a man ual designed to train Government agents in law enforce ment surveillance techniques. The D. C. Circuit noted that it previously had understood Exemption 2 to “refe[r] only to ‘pay, pensions, vacations, hours of work, lunch hours, parking, etc.’ ” ). But the court now thought Exemption 2 should also cover any “predominantly internal” materials, Crooker, 670 F.2d, –057, whose disclosure would “significantly ris[k] circumvention of agency regulations or statutes,” at 074. This construction of Exemption 2, the court rea soned, flowed from FOIA’s “overall design,” its legislative history, “and even common sense,” because Congress could not have meant to “enac[t] a statute whose provisions undermined the effectiveness of law enforcement agencies.” In the ensuing years, three Courts of Appeals adopted the D. C. Circuit’s interpretation of Exemption 2. See 575 F.d 959, 965 (CA9 2009) (case below); Massey v. FBI, F.d 620, 622 (CA2 99); Kaganove v. EPA, 856 F.2d 884, 889 (CA7 988).2 And that interpretation spawned a —————— The court adopted the “predominantly internal” standard as a way of implementing the exemption’s requirement that materials “relat[e] solely to” an agency’s internal personnel rules and practices. The word “solely,” the court reasoned, “has to be given the construction, consonant with reasonableness, of ‘predominantly’ ” because otherwise “solely” would conflict with the expansive term “related.” 670 F.2d, at 056 (some internal quotation marks omitted). 2 Three other Courts of Appeals had previously taken a narrower view of Exemption 2’s scope, consistent with the interpretation adopted in 4 MILNER v. DEPARTMENT OF NAVY Opinion of the Court new terminology: Courts applying the Crooker approach now refer to the “Low 2” exemption when discussing mate rials concerning human resources and employee relations, and to the “High 2” exemption when assessing records whose disclosure would risk circumvention of the law. See, ; Schiller v. NLRB, 964 F.2d 205, 208 (CADC 992). Congress, as well, took notice of the D. C. Circuit’s decision, borrowing language from Crooker to amend Exemption 7(E) when next enacting revisions to FOIA. The amended version of Exemption 7(E) shields certain “records or information compiled for law enforcement purposes” if their disclosure “could rea sonably be expected to risk circumvention of the law.” see Freedom of Information Reform Act of 986, –. II The FOIA request at issue here arises from the Navy’s operations at Naval Magazine Indian Island, a base in Puget Sound, Washington. The Navy keeps weapons, ammunition, and explosives on the island. To aid in the storage and transport of these munitions, the Navy uses data known as Explosive Safety Quantity Distance (ESQD) ESQD informa tion prescribes “minimum separation distances” for explo sives and helps the Navy design and construct storage —————— See 09–0 (concluding that Exemption 2 covers only an agency’s internal “housekeeping matters” (internal quotation marks omitted)); (holding that Exemp tion 2 “must not be read so broadly as to exempt” an Occupational Safety and Health Administration manual for training compliance officers); 7 (“[T]he internal practices and policies referred to in [Exemption 2] relate only to employee-employer type concerns”). These Circuits have never revised their understandings of the See infra, n. 7. Cite as: 562 U. S. (20) 5 Opinion of the Court facilities to prevent chain reactions in case of detonation. The ESQD calculations are often incorporated into specialized maps depicting the effects of hypothetical explosions. See, App. 52. In 200 and 2004, petitioner Glen Milner, a Puget Sound resident, submitted FOIA requests for all ESQD information relating to Indian The Navy refused to release the data, stating that disclo sure would threaten the security of the base and surround ing community. In support of its decision to withhold the records, the Navy invoked Exemption 2. The District Court granted summary judgment to the Navy, and the Court of Appeals affirmed, relying on the High 2 interpretation developed in Crooker. 575 F.d, at 96. The Court of Appeals explained that the ESQD information “is predominantly used for the internal pur pose of instructing agency personnel on how to do their jobs.” And disclosure of the material, the court determined, “would risk circumvention of the law” by “point[ing] out the best targets for those bent on wreak ing havoc”—for example, “[a] terrorist who wished to hit the most damaging target.” The ESQD infor mation, the court concluded, therefore qualified for a High 2 575 F.d, We granted certiorari in light of the Circuit split re specting Exemption 2’s meaning, 56 U. S. (200), and we now reverse. —————— The Navy also invoked Exemption 7(F), which applies to “records or information compiled for law enforcement purposes, but only to the extent that the production of such records could reasonably be expected to endanger the life or physical safety of any individual.” 5 U.S. C. The courts below did not decide whether the Navy could withhold the ESQD data under that 575 F.d 959, 97, n. 8 (CA9 2009); No. CV–06–00 (WD Wash., Oct. 0, 2007), App. to Pet. for Cert. 4, 25, 6 MILNER v. DEPARTMENT OF NAVY Opinion of the Court III Our consideration of Exemption 2’s scope starts with its text. See, Park ’N Fly, (“Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose”). Judicial decisions since FOIA’s enactment have analyzed and reanalyzed the meaning of the But compara tively little attention has focused on the provision’s 2 simple words: “related solely to the internal personnel rules and practices of an agency.” The key word in that dozen—the one that most clearly marks the provision’s boundaries—is “personnel.” When used as an adjective, as it is here to modify “rules and practices,” that term refers to human resources matters. “Personnel,” in this common parlance, means “the selec tion, placement, and training of employees and the formulation of policies, procedures, and relations with [or involving] employees or their representatives.” Webster’s Third New International Dictionary 687 (966) (hereinaf ter Webster’s). So, for example, a “personnel department” is “the department of a business firm that deals with problems affecting the employees of the firm and that usually interviews applicants for jobs.” Random House Dictionary 075 (966) (hereinafter Random House). “Personnel management” is similarly “the phase of man agement concerned with the engagement and effective utilization of manpower to obtain optimum efficiency of human resources.” Webster’s 687. And a “personnel agency” is “an agency for placing employable persons in jobs; employment agency.” Random House 075. FOIA itself provides an additional example in Exemp tion 6. See (994) (“A term appearing in several places in a statutory Cite as: 562 U. S. (20) 7 Opinion of the Court text is generally read the same way each time it appears”). That exemption, just a few short paragraphs down from Exemption 2, protects from disclosure “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of per sonal privacy.” Here too, the statute uses the term “personnel” as a modifier meaning “human re sources.” See Tr. of Oral Arg. 2 (“[The Court:] It’s [an] H. R. file, right? [The Government:] That’s generally true”). As we recognized in “the common and con gressional meaning of ‘personnel file’ ” is the file “show ing, for example, where [an employee] was born, the names of his parents, where he has lived from time to time, his school records, results of examinations, [and] evaluations of his work performance.” It is the file typically maintained in the human resources office—otherwise known (to recall an example offered above) as the “personnel department.” Exemption 2 uses “personnel” in the exact same way. An agency’s “personnel rules and practices” are its rules and practices dealing with employee relations or human resources. The D. C. Circuit, in a pre-Crooker decision, gave as examples “matters relating to pay, pensions, vacations, hours of work, lunch hours, parking, etc.” 59 F.2d, at ; see That “etc.” is important; we doubt any court could know enough about the Federal Government’s operations to formulate a com prehensive list. But all the rules and practices referenced in Exemption 2 share a critical feature: They concern the conditions of employment in federal agencies—such mat ters as hiring and firing, work rules and discipline, com pensation and benefits.4 Courts in practice have had little —————— 4 Government records also must satisfy the other requirements of Exemption 2 to be exempt from disclosure. Information must “relat[e] solely”—meaning, as usual, “exclusively or only,” Random House 54 8 MILNER v. DEPARTMENT OF NAVY Opinion of the Court difficulty identifying the records that qualify for withhold ing under this reading: They are what now commonly fall within the Low 2 Our construction of the statutory language simply makes clear that Low 2 is all of 2 (and that High 2 is not 2 at all, see infra, at 0–4). The statute’s purpose reinforces this understanding of the We have often noted “the Act’s goal of broad disclosure” and insisted that the exemptions be “given a narrow compass.” Department of ; see Department of Interior v. Klamath Water Users Protective Assn., 52 U.S. 7–8 (200).5 This practice of “constru[ing] FOIA exemp tions narrowly,” Department of Justice v. Landano, 508 U.S. 65, 8 (99), stands on especially firm footing with respect to Exemption 2. As described earlier, Con gress worded that provision to hem in the prior APA ex emption for “any matter relating solely to the internal management of an agency,” which agencies had used to prevent access to masses of documents. See 425 U.S., 62. We would ill-serve Congress’s purpose by —————— —to the agency’s “personnel rules and practices.” And the information must be “internal”; that is, the agency must typically keep the records to itself for its own use. See Webster’s 80 (“internal” means “existing or situated within the limits of something”). An agency’s human resources documents will often meet these conditions. 5 The dissent would reject this longstanding rule of construction in favor of an approach asking courts “to turn Congress’ public informa tion objectives into workable agency practice.” Post, at 8–9 (opinion of BREYER, J.). But nothing in FOIA either explicitly or implicitly grants courts discretion to expand (or contract) an exemption on this basis. In enacting FOIA, Congress struck the balance it thought right—generally favoring disclosure, subject only to a handful of specified exemptions— and did so across the length and breadth of the Federal Government. See, John Doe 52–5 The judicial role is to enforce that congressionally determined balance rather than, as the dissent suggests, post, at 4–6, to assess case by case, department by department, and task by task whether disclo sure interferes with good government. Cite as: 562 U. S. (20) 9 Opinion of the Court construing Exemption 2 to reauthorize the expansive withholding that Congress wanted to halt. Our reading instead gives the exemption the “narrower reach” Con gress intended, through the simple device of confining the provision’s meaning to its words. The Government resists giving “personnel” its plain meaning on the ground that Congress, when drafting Exemption 2, considered but chose not to enact language exempting “internal employment rules and practices.” Brief for Respondent 0–4, and n. This drafting history, the Navy maintains, proves that Congress did not wish “to limit the Exemption to employment-related mat ters,” even if the adjective “personnel” conveys that meaning in other contexts, But we think the Navy’s evidence insufficient: The scant history con cerning this word change as easily supports the inference that Congress merely swapped one synonym for another. Cf. Mead (noting with respect to the “unexplained disappearance of one word from an unenacted bill” that “mute intermediate legislative maneuvers are not reliable” aids to statutory interpretation (internal quotation marks omitted)). Those of us who make use of legislative history believe that clear evidence of congressional intent may illuminate ambigu ous text. We will not take the opposite tack of allowing ambiguous legislative history to muddy clear statutory language. Exemption 2, as we have construed it, does not reach the ESQD information at issue here. These data and maps calculate and visually portray the magnitude of hypothetical detonations. By no stretch of imagination do they relate to “personnel rules and practices,” as that term is most naturally understood. They concern the physical rules governing explosives, not the workplace rules gov erning sailors; they address the handling of dangerous 0 MILNER v. DEPARTMENT OF NAVY Opinion of the Court materials, not the treatment of employees. The Navy therefore may not use Exemption 2, interpreted in accord with its plain meaning to cover human resources matters, to prevent disclosure of the requested maps and data. IV The Government offers two alternative readings of Exemption 2 to support withholding the ESQD informa tion. We cannot square either with the statute. A The Navy first encourages us to adopt the construction of Exemption 2 pioneered by Crooker, which shields mate rial not only if it meets the criteria set out above (Low 2), but also if it is “predominant[ly] interna[l]” and its “disclo sure would significantly risk[] circumvention of federal agency functions” (High 2). Brief for Respondent 4 (in ternal quotation marks omitted). The dissent, too, favors this reading of the statute. Post, at But the Crooker interpretation, as already suggested, suffers from a patent flaw: It is disconnected from Exemption 2’s text. The High 2 test (in addition to substituting the word “predomi nantly” for “solely,” see n. ignores the plain meaning of the adjective “personnel,” see at 6–9, and adopts a circumvention requirement with no basis or referent in Exemption 2’s language. Indeed, the only way to arrive at High 2 is by taking a red pen to the statute— “cutting out some” words and “pasting in others” until little of the actual provision remains. (CADC 200). Because this is so, High 2 is better labeled “Non 2” (and Low 2 just 2). In support of its text-light approach to the statute, the Government relies primarily on legislative history, placing particular emphasis on the House Report concerning FOIA. See Brief for Respondent –8. A statement in that Report buttresses the High 2 understanding of the Cite as: 562 U. S. (20) Opinion of the Court exemption and, indeed, specifically rejects the Low 2 construction. According to the Report: “Operating rules, guidelines, and manuals of procedure for Government investigators or examiners would be exempt from disclo sure [under Exemption 2], but this exemption would not cover employee relations and working conditions and routine administrative procedures.” H. R. Rep. No. 7, 89th Cong., 2d Sess., 0 (966). But the Senate Report says exactly the opposite, explaining in support of a Low 2 interpretation that the phrase “internal personnel rules and practices of an agency” means “rules as to personnel’s use of parking facilities or regulation of lunch hours, statements of policy as to sick leave, and the like.” S. Rep., at 8.6 In we gave reasons for thinking the Senate Report the more reliable of the two. See 425 U.S., 66. But the more fundamental point is what we said before: Legislative history, for those who take it into ac count, is meant to clear up ambiguity, not create it. See ; Wong Yang (950) (declining to consult legislative history when that “history is more conflicting than the text is ambiguous”). When presented, on the one hand, with clear statutory language and, on the other, with dueling committee re ports, we must choose the language. The Government also advances, in support of Crooker’s High 2 approach, an argument based on subsequent legis lative action. Congress, the Government notes, amended Exemption 7(E) in 986 to cover law enforcement records whose production “would disclose techniques and proce dures for law enforcement investigations or prosecutions, —————— 6 We are perplexed that the dissent takes seriously Crooker’s notion that the reports are “reconcilable.” Post, at 4. To strip the matter to its essentials, the House Report says: “Exemption 2 means A, but not B.” The Senate Report says: “Exemption 2 means B.” That is the very definition of “irreconcilable.” 2 MILNER v. DEPARTMENT OF NAVY Opinion of the Court or would disclose guidelines for law enforcement investi gations or prosecutions if such disclosure could reason ably be expected to risk circumvention of the law.” That amendment, the Government con tends, codified Crooker’s “circumvention of the law” stan dard and, in so doing, ratified Crooker’s holding. Brief for Respondent 42–4. The dissent likewise counts as signifi cant that Congress “t[ook] note” of Crooker in revising FOIA. Post, ; see post, But the Government and the dissent neglect the key feature of the 986 amendment: Congress modified not Exemption 2 (the subject of Crooker), but instead Exemp tion 7(E). And the Crooker construction of Exemption 2 renders Exemption 7(E) superfluous and so deprives that amendment of any effect. See, TRW 54 U.S. 9, (200) (noting canon that statutes should be read to avoid making any provision “superfluous, void, or insignificant” (internal quotation marks omitted)). We cannot think of any document eligible for withholding under Exemption 7(E) that the High 2 reading does not capture: The circumvention standard is the same, and the law enforcement records listed in Exemption 7(E) are “predominantly internal.” So if Congress had agreed with Crooker’s reading of Exemption 2, it would have had no reason to alter Exemption 7(E). In that event, Congress would either have left the statute alone (on the theory that Crooker would do the necessary work) or would have amended Exemption 2 specifically to ratify Crooker. The decision instead to amend Exemption 7(E) suggests that Congress approved the circumvention standard only as to law enforcement materials, and not as to the wider set of records High 2 covers. Perhaps this legislative action does not show that Congress affirmatively disagreed with Crooker; maybe Congress was agnostic about whether the circumvention standard should apply to other records. But one thing is clear: The 986 amendment does not Cite as: 562 U. S. (20) Opinion of the Court ratify, approve, or otherwise signal agreement with Crooker’s interpretation of Exemption 2. This argument therefore cannot save the High 2 construction. The dissent offers one last reason to embrace High 2, and indeed stakes most of its wager on this argument. Crooker, the dissent asserts, “has been consistently relied upon and followed for 0 years” by other lower courts. Post, ; see post, at –2. But this claim, too, trips at the starting gate. It would be immaterial even if true, because we have no warrant to ignore clear statutory language on the ground that other courts have done so. And in any event, it is not true. Prior to Crooker, three Circuits adopted the reading of Exemption 2 we think right, and they have not changed their minds. See n. 2, 7 —————— 7 The dissent’s view that “two of th[ese] Circuits [have] not adher[ed] to their early positions” is incorrect. Post, In Abraham & P.L.C. v. United States, cited by the dissent, the Sixth Circuit rejected the Government’s claim that Exemption 2 shielded records of federal tax lien filings. 8 F.d 075, 082 (998). The court nowhere discussed the High 2 versus Low 2 question at issue here. Its only reference to Crooker concerned the part of that decision interpreting “solely” to mean “predominantly.” See 8 F.d, at 080; see also n. Subsequently, the Sixth Circuit once again held, in Rugiero v. Department of Justice, that Exemption 2 applies to “routine matters of merely internal significance.” 5 (200). In Sladek v. Bensinger, which the dissent also cites, the Fifth Circuit insisted that the Government disclose a Drug Enforcement Administration agent’s manual because it “is not the type of trivial rule, such as allocation of parking facilities, that is covered by Exemption 2.” (9). In confirming this Low 2 interpretation of the statute, the court acknowledged that another Circuit had embraced the High 2 standard. The court, however, declined to consider this alternative interpretation because it would not have changed the case’s outcome. See Finally, the Eighth Circuit’s last word on Exemption 2 is clear, and the dissent does not say otherwise. The exemption, according to that most recent Eighth Circuit decision, applies “only [to an agency’s] housekeep ing matters.” 576 F.2d, 09–0 (internal quotation marks omitted). The dissent is surely right to say, post that Crooker “has guided nearly every FOIA case decided over the last 0 years” in 4 MILNER v. DEPARTMENT OF NAVY Opinion of the Court Since Crooker, three other Circuits have accepted the High 2 reading. See One Circuit has reserved judgment on the High 2-Low 2 debate. See Audubon 04 F.d 20, 20–204 (CA0 997). And the rest have not considered the matter. (No one should think Crooker has been extensively discussed or debated in the Courts of Appeals. In the past three decades, Crooker’s analysis of Exemption 2 has been cited a sum total of five times in federal appellate decisions outside the D. C. Circuit—on average, once every six years.) The result is a 4 to split among the Circuits.8 We will not flout all usual rules of statutory interpretation to take the side of the bare majority. B Presumably because Crooker so departs from Exemption 2’s language, the Government also offers another con struction, which it says we might adopt “on a clean slate,” “based on the plain text alone.” Brief for Respondent 5. On this reading, the exemption “encompasses records concerning an agency’s internal rules and practices for its personnel to follow in the discharge of their governmental functions.” ; see also –4 (Exemption 2 “applies generally to matters concerning internal rules and practices to guide agency personnel in performing —————— Circuits applying Crooker; but that statement does not hold in the Circuits using the Low 2 approach. 8 Notably, even those courts approving Crooker have disagreed about how to apply High 2. Fault lines include whether the risk of circum vention must be significant, see, Hidalgo v. FBI, 54 F. Supp. 2d 250, 25 (DC 2008); Pet. for Cert. 5–6; whether courts should con sider the public interest in disclosure when calculating that risk, see, Department of Justice, Guide to the Freedom of Information Act, p. 85 (2009); and whether an agency must regulate the person or entity threatening circumvention; compare, 575 F.d, with, 78 The disagreement is not surprising. Because High 2 is nowhere evident in the statute, courts lack the normal guideposts for ascertaining its coverage. Cite as: 562 U. S. (20) 5 Opinion of the Court their duties”). According to the Government, this inter pretation makes sense because “the phrase ‘personnel rules and practices of an agency’ is logically understood to mean an agency’s rules and practices for its personnel.” But the purported logic in the Government’s definition eludes us. We would not say, in ordinary parlance, that a “personnel file” is any file an employee uses, or that a “personnel department” is any department in which an employee serves. No more would we say that a “personnel rule or practice” is any rule or practice that assists an employee in doing her job. The use of the term “personnel” in each of these phrases connotes not that the file or de partment or practice/rule is for personnel, but rather that the file or department or practice/rule is about personnel— i.e., that it relates to employee relations or human re sources. This case well illustrates the point. The records requested, as earlier noted, are explosives data and maps showing the distances that potential blasts travel. This information no doubt assists Navy personnel in storing munitions. But that is not to say that the data and maps relate to “personnel rules and practices.” No one staring at these charts of explosions and using ordinary language would describe them in this manner. Indeed, the Government’s “clean slate” construction reaches such documents only by stripping the word “per sonnel” of any real meaning. Under this interpretation, an agency’s “internal personnel rules and practices” ap pears to mean all its internal rules and practices. That is because agencies necessarily operate through personnel, and so all their internal rules and practices are for per sonnel. The modifier “personnel,” then, does no modifying work; it does not limit the class of internal rules and practices that Exemption 2 covers. What is most naturally viewed as the provision’s key word—the term that ought 6 MILNER v. DEPARTMENT OF NAVY Opinion of the Court to define its scope—does nothing more than state the truism that in an agency it is “personnel” who follow internal rules and practices. And this odd reading would produce a sweeping exemp tion, posing the risk that FOIA would become less a dis closure than “a withholding statute.” Mink, 40 U.S., at Many documents an agency generates in some way aid employees in carrying out their responsibilities. If Exemption 2 were to reach all these records, it would tend to engulf other FOIA exemptions, rendering ineffective the limitations Congress placed on their application. Exemp tion 7, for example, shields records compiled for law en forcement purposes, but only if one of six specified criteria is met. Yet on the Government’s view, an agency could bypass these restrictions by invoking Exemp tion 2 whenever law enforcement records guide personnel in performing their duties. Indeed, an agency could use Exemption 2 as an all-purpose back-up provision to with hold sensitive records that do not fall within any of FOIA’s more targeted exemptions.9 —————— 9 The dissent asserts that “0 years of experience” with a more expan sive interpretation of the exemption suggests no “seriou[s] inter fere[nce] with FOIA’s informational objectives.” Post, at 6. But those objectives suffer any time an agency denies a FOIA request based on an improper interpretation of the statute. To give just one example, the U. S. Forest Service has wrongly invoked Exemption 2 on multiple occasions to withhold information about (of all things) bird nesting sites. See Audubon 04 F.d 20, 20 (CA0 997); Maricopa Audubon 08 F.d 082, 084 (CA9 997). And recent statistics raise a concern that federal agencies may too readily use Exemption 2 to refuse disclosure. According to amicus Public Citizen, “while reliance on exemptions overall rose 8% from 998 to 2006, reliance on Exemption 2 rose 44% during that same time period.” Brief for Public Citizen et al. as Amici Curiae 24. In 2009 alone, federal departments cited Exemption 2 more than 72,000 times to prevent access to records. See Brief for Allied Daily Newspa pers of Washington et al. as Amici Curiae We do not doubt that many of these FOIA denials were appropriate. But we are unable to Cite as: 562 U. S. (20) 7 Opinion of the Court Interpreted in this way, Exemption 2—call it “Super 2” now—would extend, rather than narrow, the APA’s former exemption for records relating to the “internal manage ment of an agency.” 5 U.S. C. (964 ed.). We doubt that even the “internal management” provision, which Congress thought allowed too much withholding, see would have protected all information that guides employees in the discharge of their duties, includ ing the explosives data and maps in this case. And per haps needless to say, this reading of Exemption 2 violates the rule favoring narrow construction of FOIA exemptions. See, 456 U.S., at ; 425 U.S., at 6. Super 2 in fact has no basis in the text, context, or purpose of FOIA, and we accordingly reject it. V Although we cannot interpret Exemption 2 as the Gov ernment proposes, we recognize the strength of the Navy’s interest in protecting the ESQD data and maps and other similar The Government has informed us that “[p]ublicly disclosing the [ESQD] information would significantly risk undermining the Navy’s ability to safely and securely store military ordnance,” Brief for Respon dent 47, and we have no reason to doubt that representa tion. The Ninth Circuit similarly cautioned that disclo sure of this information could be used to “wrea[k] havoc” and “make catastrophe more likely.” 575 F.d, Concerns of this kind—a sense that certain sensitive information should be exempt from disclosure—in part led the Crooker court to formulate the High 2 standard. See 670 F.2d, at 074 (contending that “common sense” sup ported the High 2 interpretation because Congress would not have wanted FOIA to “undermin[e] the effective —————— accept the dissent’s unsupported declaration that a sweeping construc tion of Exemption 2 has not interfered with Congress’s goal of broad disclosure. 8 MILNER v. DEPARTMENT OF NAVY Opinion of the Court ness of law enforcement agencies”). And we acknowledge that our decision today upsets three decades of agency practice relying on Crooker, and therefore may force con siderable adjustments. We also note, however, that the Government has other tools at hand to shield national security information and other sensitive materials. Most notably, Exemption of FOIA prevents access to classified documents. §552(b)(); see 575 F.d, 80 (Exemp tion is “specifically designed to allow government agen cies to withhold information that might jeopardize our national security”). The Government generally may clas sify material even after receiving a FOIA request, see Exec. Order No. 526, §.7(d), 75 Fed. Reg. 7 (2009); an agency therefore may wait until that time to decide whether the dangers of disclosure outweigh the costs of classification. See Tr. of Oral Arg. 29–0. Exemption also may mitigate the Government’s security concerns. That provision applies to records that any other statute exempts from disclosure, thus offering Con gress an established, streamlined method to authorize the withholding of specific records that FOIA would not oth erwise protect. And Exemption 7, as already noted, pro tects “information compiled for law enforcement purposes” that meets one of six criteria, including if its release “could reasonably be expected to endanger the life or physical safety of any individual.” The Navy argued below that the ESQD data and maps fall within Exemp tion 7(F), see n. and that claim remains open for the Ninth Circuit to address on remand. If these or other exemptions do not cover records whose release would threaten the Nation’s vital interests, the Government may of course seek relief from Congress. See Tr. of Oral Arg. 48. All we hold today is that Congress has not enacted the FOIA exemption the Government desires. Cite as: 562 U. S. (20) 9 Opinion of the Court We leave to Congress, as is appropriate, the question whether it should do so. VI Exemption 2, consistent with the plain meaning of the term “personnel rules and practices,” encompasses only records relating to issues of employee relations and human resources. The explosives maps and data requested here do not qualify for withholding under that We therefore 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: 562 U. S. (20) ALITO, J., concurring SUPREME COURT OF THE UNITED STATES No. 09–6 GLEN SCOTT MILNER, PETITIONER v. |
Justice Stewart | majority | false | United States v. Reynolds | 1970-02-24T00:00:00 | null | https://www.courtlistener.com/opinion/108067/united-states-v-reynolds/ | https://www.courtlistener.com/api/rest/v3/clusters/108067/ | 1,970 | 1969-040 | 1 | 6 | 2 | The United States brought this suit in the United States District Court for the Western District of Kentucky to condemn more than 250 acres of the respondents' land for a federal development known as the Nolin Reservoir Project located in that State. An important issue in the case was raised by the respondents' claim that 78 acres of the land, taken for construction of recreational facilities adjacent to the reservoir, had not been within the original scope of the project.[1] A jury *15 awarded the respondents $20,000 as just compensation for all the land taken. Upon an appeal by the respondents, the Court of Appeals for the Sixth Circuit reversed the judgment and ordered a new trial, finding that the District Judge in his instructions to the jury had erroneously referred to matters disclosed outside the jury's presence.[2] The trial and appellate courts were in agreement, however, in rejecting the Government's contention that the "scope-of-the-project" issue was for the trial judge to decide and should not, therefore, have been submitted to the jury at all. There being a conflict between the circuits on this question.[3] we granted certiorari to consider a recurring problem of importance in federal condemnation proceedings. 396 U.S. 814.
The Fifth Amendment provides that private property shall not be taken for public use without just compensation. *16 And "just compensation" means the full monetary equivalent of the property taken.[4] The owner is to be put in the same position monetarily as he would have occupied if his property had not been taken.[5] In enforcing the constitutional mandate, the Court at an early date adopted the concept of market value: the owner is entitled to the fair market value of the property[6] at the time of the taking.[7] But this basic measurement of compensation has been hedged with certain refinements developed over the years in the interest of effectuating the constitutional guarantee. It is one of these refinements that is in controversy here.
The Court early recognized that the "market value" of property condemned can be affected, adversely or favorably, by the imminence of the very public project that makes the condemnation necessary.[8] And it was perceived that to permit compensation to be either reduced or increased because of an alteration in market value attributable to the project itself would not lead to the "just compensation" that the Constitution requires.[9] On the other hand, the development of a public project may also lead to enhancement in the market value of neighboring land that is not covered by the project itself. And if that land is later condemned, whether for an extension of the existing project or for some other public purpose, the general rule of just compensation requires that such enhancement in value be *17 wholly taken into account, since fair market value is generally to be determined with due consideration of all available economic uses of the property at the time of the taking.[10]
In United States v. Miller, 317 U.S. 369, the Court gave full articulation to these principles:
"If a distinct tract is condemned, in whole or in part, other lands in the neighborhood may increase in market value due to the proximity of the public improvement erected on the land taken. Should the Government, at a later date, determine to take these other lands, it must pay their market value as enhanced by this factor of proximity. If, however, the public project from the beginning included the taking of certain tracts but only one of them is taken in the first instance, the owner of the other tracts should not be allowed an increased value for his lands which are ultimately to be taken any more than the owner of the tract first condemned is entitled to be allowed an increased market value because adjacent lands not immediately taken increased in value due to the projected improvement.
"The question then is whether the respondents' lands were probably within the scope of the project from the time the Government was committed to it. If they were not, but were merely adjacent lands, the subsequent enlargement of the project to include them ought not to deprive the respondents of the value added in the meantime by the proximity of the improvement. If, on the other hand, they were, the Government ought not to pay any increase in value arising from the known fact that the lands probably would be condemned. The owners ought *18 not to gain by speculating on probable increase in value due to the Government's activities." 317 U.S., at 376-377.
There is no controversy in the present case regarding these basic principles. The parties agree that if the acreage in issue was "probably within the scope of the project from the time the Government was committed to it," substantially less compensation is due than if it was not. For if the property was probably within the project's original scope, then its compensable value is to be measured in terms of agricultural use. If, on the other hand, the acreage was outside the original scope of the project, its compensable value is properly measurable in terms of its economic potential as lakeside residential or recreational property.
The issue between the parties is simply whether the "scope-of-the-project" question is to be determined by the trial judge or by the jury. There is no claim that the issue is of constitutional dimensions. For it has long been settled that there is no constitutional right to a jury in eminent domain proceedings. See Bauman v. Ross, 167 U.S. 548, 593. As Professor Moore has put the matter:
"The practice in England and in the colonies prior to the adoption in 1791 of the Seventh Amendment, the position taken by Congress contemporaneously with, and subsequent to, the adoption of the Amendment, and the position taken by the Supreme Court and nearly all of the lower federal courts lead to the conclusion that there is no constitutional right to jury trial in the federal courts in an action for the condemnation of property under the power of eminent domain."[11]
*19 It is not, therefore, to the Seventh Amendment that we look in this case, but to the Federal Rules of Civil Procedure. Rule 71A (h) provides that, except in circumstances not applicable here, "any party" to a federal eminent domain proceeding "may have a trial by jury of the issue of just compensation," unless the court in its discretion orders that that issue "shall be determined by a commission of three persons appointed by it. . . . Trial of all issues shall otherwise be by the court."[12] The Rule thus provides that, except for the single issue of just compensation, the trial judge is to decide all issues, legal and factual, that may be presented. The critical inquiry is thus whether "the issue of just compensation," as that phrase is used in the Rule, is broad enough to embrace the question whether the condemned property was probably within the scope of the federal project.[13]
*20 Although the matter could be decided either way without doing violence to the language of Rule 71A (h), we think the Rule's basic structure makes clear that a jury in federal condemnation proceedings is to be confined to the performance of a single narrow but important functionthe determination of a compensation award within ground rules established by the trial judge. The Rule gives the trial court discretion to eliminate a jury entirely. And when a jury is afforded, the sweeping language of the final sentence of the Rule discloses a clear intent to give the district judge a role in condemnation proceedings much broader than he occupies in a conventional jury trial. It is for him to decide "all issues" other than the precise issue of the amount of compensation to be awarded. It follows that it is for the judge to tell the jury the criteria it must follow in determining what amount will constitute just compensation, and that in order to do so he must decide the "scope-of-the-project" issue as a preliminary matter. We therefore approve and adopt the procedural rule announced by the Court of Appeals for the Fifth Circuit in Wardy v. United States, 402 F.2d 762, and hold that it is for the judge and not the jury to decide whether the property condemned was probably within the project's original scope.[14]
*21 Finally, the Government asks us to take this occasion to "clarify" the "scope-of-the-project" test. We think the test was stated with admirable clarity by a unanimous Court in Miller: if the "lands were probably within the scope of the project from the time the Government was committed to it," no enhancement in value attributable to the project is to be considered in awarding compensation. As with any test that deals in probabilities, its application to any particular set of facts requires discriminating judgment.[15] The rule does not require a showing that the land ultimately taken was actually specified in the original plans for the project. It need only be shown that during the course of the planning or original construction it became evident that land so situated would probably be needed for the public use.
The judgment of the Court of Appeals is vacated, and the case is remanded to the United States District Court for the Western District of Kentucky for further proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE DOUGLAS, with whom MR. | The United States brought this suit in the United States District Court for the Western District of Kentucky to condemn more than 250 acres of the respondents' land for a federal development known as the Nolin Reservoir Project located in that State. An important issue in the case was raised by the respondents' claim that 78 acres of the land, taken for construction of recreational facilities adjacent to the reservoir, had not been within the original scope of the project.[1] A jury *15 awarded the respondents $20,000 as just compensation for all the land taken. Upon an appeal by the respondents, the Court of Appeals for the Sixth Circuit reversed the judgment and ordered a new trial, finding that the District Judge in his instructions to the jury had erroneously referred to matters disclosed outside the jury's presence.[2] The trial and appellate courts were in agreement, however, in rejecting the Government's contention that the "scope-of-the-project" issue was for the trial judge to decide and should not, therefore, have been submitted to the jury at all. There being a conflict between the circuits on this question.[3] we granted certiorari to consider a recurring problem of importance in federal condemnation proceedings. The Fifth Amendment provides that private property shall not be taken for public use without just compensation. *16 And "just compensation" means the full monetary equivalent of the property taken.[4] The owner is to be put in the same position monetarily as he would have occupied if his property had not been taken.[5] In enforcing the constitutional mandate, the Court at an early date adopted the concept of market value: the owner is entitled to the fair market value of the property[6] at the time of the taking.[7] But this basic measurement of compensation has been hedged with certain refinements developed over the years in the interest of effectuating the constitutional guarantee. It is one of these refinements that is in controversy here. The Court early recognized that the "market value" of property condemned can be affected, adversely or favorably, by the imminence of the very public project that makes the condemnation necessary.[8] And it was perceived that to permit compensation to be either reduced or increased because of an alteration in market value attributable to the project itself would not lead to the "just compensation" that the Constitution requires.[9] On the other hand, the development of a public project may also lead to enhancement in the market value of neighboring land that is not covered by the project itself. And if that land is later condemned, whether for an extension of the existing project or for some other public purpose, the general rule of just compensation requires that such enhancement in value be *17 wholly taken into account, since fair market value is generally to be determined with due consideration of all available economic uses of the property at the time of the taking.[10] In United the Court gave full articulation to these principles: "If a distinct tract is condemned, in whole or in part, other lands in the neighborhood may increase in market value due to the proximity of the public improvement erected on the land taken. Should the Government, at a later date, determine to take these other lands, it must pay their market value as enhanced by this factor of proximity. If, however, the public project from the beginning included the taking of certain tracts but only one of them is taken in the first instance, the owner of the other tracts should not be allowed an increased value for his lands which are ultimately to be taken any more than the owner of the tract first condemned is entitled to be allowed an increased market value because adjacent lands not immediately taken increased in value due to the projected improvement. "The question then is whether the respondents' lands were probably within the scope of the project from the time the Government was committed to it. If they were not, but were merely adjacent lands, the subsequent enlargement of the project to include them ought not to deprive the respondents of the value added in the meantime by the proximity of the improvement. If, on the other hand, they were, the Government ought not to pay any increase in value arising from the known fact that the lands probably would be condemned. The owners ought *18 not to gain by speculating on probable increase in value due to the Government's activities." -377. There is no controversy in the present case regarding these basic principles. The parties agree that if the acreage in issue was "probably within the scope of the project from the time the Government was committed to it," substantially less compensation is due than if it was not. For if the property was probably within the project's original scope, then its compensable value is to be measured in terms of agricultural use. If, on the other hand, the acreage was outside the original scope of the project, its compensable value is properly measurable in terms of its economic potential as lakeside residential or recreational property. The issue between the parties is simply whether the "scope-of-the-project" question is to be determined by the trial judge or by the jury. There is no claim that the issue is of constitutional dimensions. For it has long been settled that there is no constitutional right to a jury in eminent domain proceedings. See As Professor Moore has put the matter: "The practice in England and in the colonies prior to the adoption in 1791 of the Seventh Amendment, the position taken by Congress contemporaneously with, and subsequent to, the adoption of the Amendment, and the position taken by the Supreme Court and nearly all of the lower federal courts lead to the conclusion that there is no constitutional right to jury trial in the federal courts in an action for the condemnation of property under the power of eminent domain."[11] *19 It is not, therefore, to the Seventh Amendment that we look in this case, but to the Federal Rules of Civil Procedure. Rule 71A (h) provides that, except in circumstances not applicable here, "any party" to a federal eminent domain proceeding "may have a trial by jury of the issue of just compensation," unless the court in its discretion orders that that issue "shall be determined by a commission of three persons appointed by it. Trial of all issues shall otherwise be by the court."[12] The Rule thus provides that, except for the single issue of just compensation, the trial judge is to decide all issues, legal and factual, that may be presented. The critical inquiry is thus whether "the issue of just compensation," as that phrase is used in the Rule, is broad enough to embrace the question whether the condemned property was probably within the scope of the federal project.[13] *20 Although the matter could be decided either way without doing violence to the language of Rule 71A (h), we think the Rule's basic structure makes clear that a jury in federal condemnation proceedings is to be confined to the performance of a single narrow but important functionthe determination of a compensation award within ground rules established by the trial judge. The Rule gives the trial court discretion to eliminate a jury entirely. And when a jury is afforded, the sweeping language of the final sentence of the Rule discloses a clear intent to give the district judge a role in condemnation proceedings much broader than he occupies in a conventional jury trial. It is for him to decide "all issues" other than the precise issue of the amount of compensation to be awarded. It follows that it is for the judge to tell the jury the criteria it must follow in determining what amount will constitute just compensation, and that in order to do so he must decide the "scope-of-the-project" issue as a preliminary matter. We therefore approve and adopt the procedural rule announced by the Court of Appeals for the Fifth Circuit in and hold that it is for the judge and not the jury to decide whether the property condemned was probably within the project's original scope.[14] *21 Finally, the Government asks us to take this occasion to "clarify" the "scope-of-the-project" test. We think the test was stated with admirable clarity by a unanimous Court in Miller: if the "lands were probably within the scope of the project from the time the Government was committed to it," no enhancement in value attributable to the project is to be considered in awarding compensation. As with any test that deals in probabilities, its application to any particular set of facts requires discriminating judgment.[15] The rule does not require a showing that the land ultimately taken was actually specified in the original plans for the project. It need only be shown that during the course of the planning or original construction it became evident that land so situated would probably be needed for the public use. The judgment of the Court of Appeals is vacated, and the case is remanded to the United States District Court for the Western District of Kentucky for further proceedings consistent with this opinion. It is so ordered. MR. JUSTICE DOUGLAS, with whom MR. |
Justice Stevens | second_dissenting | false | Arizona v. San Carlos Apache Tribe of Ariz. | 1983-07-01T00:00:00 | null | https://www.courtlistener.com/opinion/111007/arizona-v-san-carlos-apache-tribe-of-ariz/ | https://www.courtlistener.com/api/rest/v3/clusters/111007/ | 1,983 | 1982-150 | 1 | 6 | 3 | "Nothing in the McCarran Amendment or in its legislative history can be read as limiting the jurisdiction of the federal courts." Colorado River Water Conservation District v. *573 United States, 424 U.S. 800, 821, n. 2 (1976) (Stewart, J., dissenting). That Amendment is a waiver, not a command.[1] It permits the United States to be joined as a defendant in state water rights adjudications; it does not purport to diminish the United States' right to litigate in a federal forum and it is totally silent on the subject of Indian tribes' rights to litigate anywhere. Yet today the majority somehow concludes that it commands the federal courts to defer to state-court water rights proceedings, even when Indian water rights are involved. Although it is customary for the Court to begin its analysis of questions of statutory construction by examining the text of the relevant statute,[2] one may search in vain for any textual support for the Court's holding today.
"Most of the land in these reservations is and always has been arid. . . . It can be said without overstatement that when the Indians were put on these reservations they were not considered to be located in the most desirable area of the Nation. It is impossible to believe that when Congress created the great Colorado River Indian Reservation and when the Executive Department of this Nation created the other reservations they were unaware that most of the lands were of the desert kind hot, scorching sands and that water from the river would be essential to the life of the Indian people and to the animals they hunted and the crops they raised." Arizona v. California, 373 U.S. 546, 598-599 (1963).
This Court has repeatedly recognized that the Government, when it created each Indian reservation, "intended to deal fairly with the Indians by reserving for them the waters *574 without which their lands would have been useless." Id., at 600. See Winters v. United States, 207 U.S. 564 (1908); United States v. Powers, 305 U.S. 527, 532 (1939); Arizona v. California, supra, at 600-601; Cappaert v. United States, 426 U.S. 128, 138-139 (1976). This doctrine, known as the Winters doctrine, is unquestionably a matter of federal, not state, law. See ante, at 571; Colorado River, supra, at 813. Its underlying principles differ substantially from those applied by the States to allocate water among competing claimants. Unlike state-law claims based on prior appropriation, Indian reserved water rights are not based on actual beneficial use and are not forfeited if they are not used. Vested no later than the date each reservation was created, these Indian rights are superior in right to all subsequent appropriations under state law. Not all of the issues arising from the application of the Winters doctrine have been resolved, because in the past the scope of Indian reserved rights has infrequently been adjudicated.[3] The important task of elaborating and clarifying these federal-law issues in the cases now before the Court, and in future cases, should be performed by federal rather than state courts whenever possible.
Federal adjudication of Indian water rights would not fragment an otherwise unified state-court proceeding. Since Indian reserved claims are wholly dissimilar to state-law water claims, and since their amount does not depend on the total volume of water available in the water source or on the quantity of competing claims, it will be necessary to conduct separate proceedings to determine these claims even if the adjudication takes place in state court. Subsequently the state court will incorporate these claims like claims under state law or Federal Government claims that have been formally adjudicated in the past into a single inclusive, binding decree for each water source. Thus, as Justice Stewart wrote *575 in dissent in Colorado River: "Whether the virtually identical separate proceedings take place in a federal court or a state court, the adjudication of the claims will be neither more nor less `piecemeal.' Essentially the same process will be followed in each instance." 424 U.S., at 825.
To justify virtual abandonment of Indian water rights claims to the state courts, the majority relies heavily on Colorado River Water Conservation District, which in turn discovered an affirmative policy of federal judicial abdication in the McCarran Amendment.[4] I continue to believe that Colorado River read more into that Amendment than Congress intended, and cannot acquiesce in an extension of its reasoning. Although the Court's decision in Colorado River did, indeed, foreshadow today's holding, it did not involve an Indian tribe's attempt to litigate on its own behalf, 424 U.S., at 820, n. 26. The majority today acknowledges that the question in these cases was "not directly answered," but in fact was "specifically reserved," in Colorado River. Ante, at 565.
Although in some respects Indian tribes' water claims are similar to other reserved federal water rights, different treatment is justified. States and their citizens may well be more antagonistic toward Indian reserved rights than other federal reserved rights, both because the former are potentially greater in quantity and because they provide few direct or indirect benefits to non-Indian residents.[5] Indians have *576 historically enjoyed a unique relationship with the Federal Government, reflecting the tribes' traditional sovereign status, their treaty-based right to federal protection, and their special economic problems. Recently the Court reaffirmed " `the distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and sometimes exploited people.' " United States v. Mitchell, ante, at 225, quoting Seminole Nation v. United States, 316 U.S. 286, 296 (1942). See also McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 168-175 (1973); Rice v. Olson, 324 U.S. 786, 789 (1945).[6]
One important aspect of the special relationship is 28 U.S. C. § 1362, which embodies a federal promise that Indian tribes will be able to invoke the jurisdiction of federal courts to resolve matters in controversy arising under federal *577 law.[7] Congress thereby assured Indians a neutral federal forum a guarantee whose importance should not be under-estimated.[8] The Senate Report noted:
"There is great hesitancy on the part of tribes to use State courts. This reluctance is founded partially on the traditional fear that tribes have had of the States in which their reservations are situated. Additionally, the Federal courts have more expertise in deciding questions involving treaties with the Federal Government, as well as interpreting the relevant body of Federal law that has developed over the years." S. Rep. No. 1507, 89th Cong., 2d Sess., 2 (1966).
*578 Section 1362 also assured the tribes that they need not rely on the Federal Government to protect their interests, an important safeguard in light of the undeniable potential for conflicts of interest between Indian claims and other Federal Government claims.[9]
Despite the silence of the McCarran Amendment regarding Indian tribal claims, and the clear promise of a federal forum embodied in § 1362, the Court holds that considerations of "wise judicial administration" require that Indian claims, governed by federal law, must be relegated to the state courts. It is clear to me that the words "wise judicial administration" have been wrenched completely from their ordinary meaning. One of the Arizona proceedings, in which process has been served on approximately 58,000 known water claimants, illustrates the practical consequences of giving the state courts the initial responsibility for the adjudication of Indian water rights claims. Because this Court may not exercise appellate jurisdiction in state-court litigation until after a final judgment has been entered by the highest court of the State, no federal tribunal will be able to review any federal question in the case until the entire litigation has been concluded. The Court promises that "any state-court decision alleged to abridge Indian water rights protected by *579 federal law can expect to receive, if brought for review before this Court, a particularized and exacting scrutiny commensurate with the powerful federal interest in safeguarding those rights from state encroachment." Ante, at 571. If a state court errs in interpreting the Winters doctrine or an Indian treaty, and this Court ultimately finds it necessary to correct that error, the entire comprehensive state-court water rights decree may require massive readjustment. If, however, the quantification of Indian rights were to be adjudicated in a separate federal proceeding which presumably would be concluded long before the mammoth, conglomerate state adjudication comes to an end the state judgment would rest on a solid foundation that this Court should never need to examine.
The Court acknowledges the logical force of these propositions, but sets them aside because the exercise of concurrent federal-court jurisdiction would create "the possibility of duplicative litigation, tension and controversy between the federal and state forums, hurried and pressured decisionmaking, and confusion over the disposition of property rights." Ante, at 569. These possibilities arise, as the Court candidly admits, from a pessimistic assessment of the likelihood that state courts, state legislatures, and state parties will assume a "cooperative attitude." In other words, the state courts might engage in an unseemly rush to judgment in order to give the Indians less water than they fear that the federal courts might provide. If state courts cannot be expected to adhere to orderly processes of decisionmaking because of their hostility to the Indians, the statutory right accorded to Indian tribes to litigate in a federal tribunal is even more important.
In my view, a federal court whose jurisdiction is invoked in a timely manner by an Indian tribe has a duty to determine the existence and extent of the tribe's reserved water rights under federal law. It is inappropriate to stay or dismiss such federal-court proceedings in order to allow determinations *580 by state courts. In the cases before us today, complaints were timely filed in federal court by the Indian Tribes, before or shortly after the institution of state water adjudication proceedings; the state proceedings in Arizona and Montana remain at an early stage. The District Court should therefore grant the Tribes leave to amend the various complaints, where necessary, to seek adjudication of the scope and quantity of Indian reserved water rights and to eliminate other claims; the suits should then proceed in federal court.
Today, however, on the tenuous foundation of a perceived congressional intent that has never been articulated in statutory language or legislative history, the Court carves out a further exception to the "virtually unflagging obligation" of federal courts to exercise their jurisdiction. The Court does not and cannot claim that it is faithfully following general principles of law. After all, just four months ago in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983), the Court wrote:
"[W]e emphasize that our task in cases such as this is not to find some substantial reason for the exercise of federal jurisdiction by the district court; rather, the task is to ascertain whether there exist `exceptional' circumstances, the `clearest of justifications,' that can suffice under Colorado River to justify the surrender of that jurisdiction. Although in some rare circumstances the presence of state-law issues may weigh in favor of that surrender . . . the presence of federal-law issues must always be a major consideration weighing against surrender." Id., at 25-26.
Today that "major consideration" is but a peppercorn in the scales, outweighed by the phantom command of the McCarran Amendment. Instead of trying to reconcile this decision with Moses H. Cone and other prior cases, the Court *581 merely says: "But water rights adjudication is a virtually unique type of proceeding, and the McCarran Amendment is a virtually unique federal statute, and we cannot in this context be guided by general propositions." Ante, at 571.
I submit that it is the analysis in Part IV of the Court's opinion that is "virtually unique." Accordingly, I respectfully dissent.
| "Nothing in the McCarran Amendment or in its legislative history can be read as limiting the jurisdiction of the federal courts." Colorado Water Conservation That Amendment is a waiver, not a command.[1] It permits the United States to be joined as a defendant in state water rights adjudications; it does not purport to diminish the United States' right to litigate in a federal forum and it is totally silent on the subject of Indian tribes' rights to litigate anywhere. Yet today the majority somehow concludes that it commands the federal courts to defer to state-court water rights proceedings, even when Indian water rights are involved. Although it is customary for the Court to begin its analysis of questions of statutory construction by examining the text of the relevant statute,[2] one may search in vain for any textual support for the Court's holding today. "Most of the land in these reservations is and always has been arid. It can be said without overstatement that when the Indians were put on these reservations they were not considered to be located in the most desirable area of the Nation. It is impossible to believe that when Congress created the great Colorado Indian Reservation and when the Executive Department of this Nation created the other reservations they were unaware that most of the lands were of the desert kind hot, scorching sands and that water from the river would be essential to the life of the Indian people and to the animals they hunted and the crops they raised." This Court has repeatedly recognized that the Government, when it created each Indian reservation, "intended to deal fairly with the Indians by reserving for them the waters *574 without which their lands would have been useless." See ; United ; -601; This doctrine, known as the Winters doctrine, is unquestionably a matter of federal, not state, law. See ante, at 571; Colorado Its underlying principles differ substantially from those applied by the States to allocate water among competing claimants. Unlike state-law claims based on prior appropriation, Indian reserved water rights are not based on actual beneficial use and are not forfeited if they are not used. Vested no later than the date each reservation was created, these Indian rights are superior in right to all subsequent appropriations under state law. Not all of the issues arising from the application of the Winters doctrine have been resolved, because in the past the scope of Indian reserved rights has infrequently been adjudicated.[3] The important task of elaborating and clarifying these federal-law issues in the cases now before the Court, and in future cases, should be performed by federal rather than state courts whenever possible. Federal adjudication of Indian water rights would not fragment an otherwise unified state-court proceeding. Since Indian reserved claims are wholly dissimilar to state-law water claims, and since their amount does not depend on the total volume of water available in the water source or on the quantity of competing claims, it will be necessary to conduct separate proceedings to determine these claims even if the adjudication takes place in state court. Subsequently the state court will incorporate these claims like claims under state law or Federal Government claims that have been formally adjudicated in the past into a single inclusive, binding decree for each water source. Thus, as Justice Stewart wrote *575 in dissent in Colorado : "Whether the virtually identical separate proceedings take place in a federal court or a state court, the adjudication of the claims will be neither more nor less `piecemeal.' Essentially the same process will be followed in each instance." To justify virtual abandonment of Indian water rights claims to the state courts, the majority relies heavily on Colorado Water Conservation District, which in turn discovered an affirmative policy of federal judicial abdication in the McCarran Amendment.[4] I continue to believe that Colorado read more into that Amendment than Congress intended, and cannot acquiesce in an extension of its reasoning. Although the Court's decision in Colorado did, indeed, foreshadow today's holding, it did not involve an Indian tribe's attempt to litigate on its own behalf, n. 26. The majority today acknowledges that the question in these cases was "not directly answered," but in fact was "specifically reserved," in Colorado Ante, at 565. Although in some respects Indian tribes' water claims are similar to other reserved federal water rights, different treatment is justified. States and their citizens may well be more antagonistic toward Indian reserved rights than other federal reserved rights, both because the former are potentially greater in quantity and because they provide few direct or indirect benefits to non-Indian residents.[5] Indians have *576 historically enjoyed a unique relationship with the Federal Government, reflecting the tribes' traditional sovereign status, their treaty-based right to federal protection, and their special economic problems. Recently the Court reaffirmed " `the distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and sometimes exploited people.' " United States v. Mitchell, ante, at 225, quoting Seminole See also ;[6] One important aspect of the special relationship is 28 U.S. C. 1362, which embodies a federal promise that Indian tribes will be able to invoke the jurisdiction of federal courts to resolve matters in controversy arising under federal *577 law.[7] Congress thereby assured Indians a neutral federal forum a guarantee whose importance should not be under-estimated.[8] The Senate Report noted: "There is great hesitancy on the part of tribes to use State courts. This reluctance is founded partially on the traditional fear that tribes have had of the States in which their reservations are situated. Additionally, the Federal courts have more expertise in deciding questions involving treaties with the Federal Government, as well as interpreting the relevant body of Federal law that has developed over the years." S. Rep. No. 1507, 89th Cong., 2d Sess., 2 (1966). *578 Section 1362 also assured the tribes that they need not rely on the Federal Government to protect their interests, an important safeguard in light of the undeniable potential for conflicts of interest between Indian claims and other Federal Government claims.[9] Despite the silence of the McCarran Amendment regarding Indian tribal claims, and the clear promise of a federal forum embodied in 1362, the Court holds that considerations of "wise judicial administration" require that Indian claims, governed by federal law, must be relegated to the state courts. It is clear to me that the words "wise judicial administration" have been wrenched completely from their ordinary meaning. One of the Arizona proceedings, in which process has been served on approximately 58,000 known water claimants, illustrates the practical consequences of giving the state courts the initial responsibility for the adjudication of Indian water rights claims. Because this Court may not exercise appellate jurisdiction in state-court litigation until after a final judgment has been entered by the highest court of the State, no federal tribunal will be able to review any federal question in the case until the entire litigation has been concluded. The Court promises that "any state-court decision alleged to abridge Indian water rights protected by *579 federal law can expect to receive, if brought for review before this Court, a particularized and exacting scrutiny commensurate with the powerful federal interest in safeguarding those rights from state encroachment." Ante, at 571. If a state court errs in interpreting the Winters doctrine or an Indian treaty, and this Court ultimately finds it necessary to correct that error, the entire comprehensive state-court water rights decree may require massive readjustment. If, however, the quantification of Indian rights were to be adjudicated in a separate federal proceeding which presumably would be concluded long before the mammoth, conglomerate state adjudication comes to an end the state judgment would rest on a solid foundation that this Court should never need to examine. The Court acknowledges the logical force of these propositions, but sets them aside because the exercise of concurrent federal-court jurisdiction would create "the possibility of duplicative litigation, tension and controversy between the federal and state forums, hurried and pressured decisionmaking, and confusion over the disposition of property rights." Ante, at 569. These possibilities arise, as the Court candidly admits, from a pessimistic assessment of the likelihood that state courts, state legislatures, and state parties will assume a "cooperative attitude." In other words, the state courts might engage in an unseemly rush to judgment in order to give the Indians less water than they fear that the federal courts might provide. If state courts cannot be expected to adhere to orderly processes of decisionmaking because of their hostility to the Indians, the statutory right accorded to Indian tribes to litigate in a federal tribunal is even more important. In my view, a federal court whose jurisdiction is invoked in a timely manner by an Indian tribe has a duty to determine the existence and extent of the tribe's reserved water rights under federal law. It is inappropriate to stay or dismiss such federal-court proceedings in order to allow determinations *580 by state courts. In the cases before us today, complaints were timely filed in federal court by the Indian Tribes, before or shortly after the institution of state water adjudication proceedings; the state proceedings in Arizona and Montana remain at an early stage. The District Court should therefore grant the Tribes leave to amend the various complaints, where necessary, to seek adjudication of the scope and quantity of Indian reserved water rights and to eliminate other claims; the suits should then proceed in federal court. Today, however, on the tenuous foundation of a perceived congressional intent that has never been articulated in statutory language or legislative history, the Court carves out a further exception to the "virtually unflagging obligation" of federal courts to exercise their jurisdiction. The Court does not and cannot claim that it is faithfully following general principles of law. After all, just four months ago in Moses H. Cone Memorial the Court wrote: "[W]e emphasize that our task in cases such as this is not to find some substantial reason for the exercise of federal jurisdiction by the district court; rather, the task is to ascertain whether there exist `exceptional' circumstances, the `clearest of justifications,' that can suffice under Colorado to justify the surrender of that jurisdiction. Although in some rare circumstances the presence of state-law issues may weigh in favor of that surrender the presence of federal-law issues must always be a major consideration weighing against surrender." Today that "major consideration" is but a peppercorn in the scales, outweighed by the phantom command of the McCarran Amendment. Instead of trying to reconcile this decision with Moses H. Cone and other prior cases, the Court *581 merely says: "But water rights adjudication is a virtually unique type of proceeding, and the McCarran Amendment is a virtually unique federal statute, and we cannot in this context be guided by general propositions." Ante, at 571. I submit that it is the analysis in Part IV of the Court's opinion that is "virtually unique." Accordingly, I respectfully dissent. |
Justice Scalia | concurring | false | Nixon v. Missouri Municipal League | 2004-03-24T00:00:00 | null | https://www.courtlistener.com/opinion/134728/nixon-v-missouri-municipal-league/ | https://www.courtlistener.com/api/rest/v3/clusters/134728/ | 2,004 | 2003-044 | 1 | 8 | 1 | I agree with much of the Court's analysis in Parts II and III of its opinion, which demonstrates that reading "any entity" in 47 U.S. C. § 253(a) to include political subdivisions of States would have several unhappy consequences. I do not think, however, that the avoidance of unhappy consequences is adequate basis for interpreting a text. Cf. ante, at 140 ("The municipal respondents' position holds sufficient promise of futility and uncertainty to keep us from accepting it"). I would instead reverse the Court of Appeals on the ground discussed in Part IV of the Court's opinion: Section 253(a) simply does not provide the clear statement which would be required by Gregory v. Ashcroft, 501 U.S. 452 (1991), for a statute to limit the power of States to restrict the delivery of telecommunications services by their political subdivisions.
I would not address the additional question whether the statute affects the "power of . . . localities to restrict their own (or their political inferiors') delivery" of telecommunications services, ante, at 129 (emphasis added), an issue considered and apparently answered negatively by the Court. That question is neither presented by this litigation nor contained within the question on which we granted certiorari. | I agree with much of the Court's analysis in Parts II and III of its opinion, which demonstrates that reading "any entity" in 47 U.S. C. 253(a) to include political subdivisions of States would have several unhappy consequences. I do not think, however, that the avoidance of unhappy consequences is adequate basis for interpreting a text. Cf. ante, at 140 ("The municipal respondents' position holds sufficient promise of futility and uncertainty to keep us from accepting it"). I would instead reverse the Court of Appeals on the ground discussed in Part IV of the Court's opinion: Section 253(a) simply does not provide the clear statement which would be required by for a statute to limit the power of States to restrict the delivery of telecommunications services by their political subdivisions. I would not address the additional question whether the statute affects the "power of localities to restrict their own (or their political inferiors') delivery" of telecommunications services, ante, at 129 (emphasis added), an issue considered and apparently answered negatively by the Court. That question is neither presented by this litigation nor contained within the question on which we granted certiorari. |
Justice White | majority | false | California v. Sierra Club | 1981-04-28T00:00:00 | null | https://www.courtlistener.com/opinion/110467/california-v-sierra-club/ | https://www.courtlistener.com/api/rest/v3/clusters/110467/ | 1,981 | 1980-078 | 1 | 9 | 0 | Under review here is a decision of the Court of Appeals for the Ninth Circuit holding that private parties may sue under the Rivers and Harbors Appropriation Act of 1899 to enforce § 10 of that Act. An environmental organization and two private citizens (hereafter respondents)[1] seek to enjoin the construction and operation of water diversion facilities which are part of the California Water Project (CWP). They rely upon § 10 of the Act, which prohibits "[t]he creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States . . . ."[2] Since the Act does not explicitly create a private *290 enforcement mechanism, the initial question presented by these consolidated cases is whether such a private right of action can be implied on behalf of those allegedly injured by a claimed violation of § 10. Petitioner State of California also asks us to decide whether the Act requires permits for the state water allocation projects involved in these cases.
I
The California Water Project consists of a series of water storage and transportation facilities designed primarily to transport water from the relatively moist climate of northern California to the more arid central and southern portions of the State. The water which will be used by the CWP is initially stored behind dams on the Sacramento River and, as needed, released into the Sacramento-San Joaquin Delta. The CWP then diverts a quantity of this water from the Delta and directs it into canals and aqueducts which will carry it south. The project has both federal and state components. The federal component, the Central Valley Project, is designed in part to provide a constant source of water for irrigation to the Central Valley of California. Water for this project is diverted from the Delta by the Tracy Pumping Plant into the 115-mile Delta-Mendota Canal which transports the water to the Mendota Pool in California's Central Valley. The State Water Project supplies water to both central and southern California by way of the California Aqueduct. Water for this project is drawn from the Delta by the Delta Pumping Plant and deposited in the *291 northern terminus of the California Aqueduct, through which it flows to its destinations in central and southern California.
Under the present system the quality of water captured in the north and released into the Delta may be degraded by intruding salt waters from the Pacific Ocean. As a consequence the water which is diverted from the Delta to the Delta-Mendota Canal or the California Aqueduct is potentially of a lesser quality than is the water which is transported to the Delta from storage facilities in the north and from there deposited in the Delta. The State of California has proposed the construction of a 42-mile Peripheral Canal along the eastern edge of the Delta area, which would avoid any mixing of the water from the north with the saline water of the Delta. Instead of depositing water in the Delta, the canal would carry high quality water directly to the Tracy and Delta Pumping Plants.
Respondents commenced the present action in 1971 in the United States District Court for the Northern District of California. Sierra Club v. Morton, 400 F. Supp. 610 (1975). Named as defendants were the various federal and state officials who administer the agencies responsible for overseeing the operation, construction, and regulation of the CWP facilities in question.[3] Petitioner water agencies, which had contracted with the State for water from the Delta and which had incurred extensive financial obligations in reliance thereon, were permitted to intervene.[4] The respondents alleged that present *292 and proposed diversions of water from the Delta degraded the quality of Delta water, and that such diversion violated § 10 of the Rivers and Harbors Appropriation Act of 1899. They sought to enjoin further operation or construction of water diversion facilities until the consent of the Army Corps of Engineers was obtained as required by the Act.
The District Court concluded that respondents could avail themselves of a "private cause of action" to enforce § 10 of the Act, and ruled on the merits that approval of the Corps of Engineers was required by § 10 for the Tracy and Delta Pumping Plants and the Peripheral Canal. Sierra Club v. Morton, supra. The Court of Appeals for the Ninth Circuit agreed that a private cause of action to enforce the Act existed. Sierra Club v. Andrus, 610 F.2d 581 (1979). It reversed the District Court as to the Tracy Pumping Plant, however, ruling that Congress has consented to its construction and operation.[5] We granted petitions for certiorari filed by the water agencies and the State of California. 449 U.S. 818 (1980).
II
Cort v. Ash, 422 U.S. 66 (1975), outlined a "preferred approach for determining whether a private right of action should be implied from a federal statute . . . ." Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 26 (1979) (WHITE, J., dissenting); see Cannon v. University of Chicago, *293 441 U.S. 677 (1979). This approach listed four factors thought to be relevant to the inquiry:
"First, is the plaintiff `one of the class for whose especial benefit the statute was enacted,' . . . that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? . . . Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? . . . And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?" 422 U.S., at 78.
Combined, these four factors present the relevant inquiries to pursue in answering the recurring question of implied causes of action. Cases subsequent to Cort have explained that the ultimate issue is whether Congress intended to create a private right of action, see Universities Research Assn., Inc. v. Coutu, 450 U.S. 754, 771-772 (1981); Transamerica Mortgage Advisors, Inc. v. Lewis, supra, at 23-24; Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 575-576 (1979); but the four factors specified in Cort remain the "criteria through which this intent could be discerned." Davis v. Passman, 442 U.S. 228, 241 (1979); Transamerica Mortgage Advisors, Inc. v. Lewis, supra, at 27 (WHITE, J., dissenting).
Under Cort, the initial consideration is whether the plaintiff is a member of a class for "'whose especial benefit the statute was enacted.'" Cort v. Ash, supra, at 78, 80-82; see Touche Ross & Co. v. Redington, supra, at 569-570; Cannon v. University of Chicago, supra, at 689-694. Without analyzing either the language or legislative history of the Act, the Court of Appeals here concluded that the Act was designed for the especial benefit of private parties who may suffer "special injury" caused by an unauthorized obstruction *294 to a navigable waterway. It was apparently reasoned that since Congress enacted a statute that forbids such obstructions in navigable waters, any person who would be "especially harmed" by an unauthorized obstruction was an especial beneficiary of the Act. But such a definition of "especial" beneficiary makes this factor meaningless. Under this view, a victim of any crime would be deemed an especial beneficiary of the criminal statute's proscription. Cort did not adopt such a broad-gauge approach. Cort v. Ash, supra, at 80-82. The question is not simply who would benefit from the Act, but whether Congress intended to confer federal rights upon those beneficiaries. See Cannon, supra, at 690-693, n. 13.
In ascertaining this intent, the first consideration is the language of the Act. Here, the statute states no more than a general proscription of certain activities; it does not unmistakably focus on any particular class of beneficiaries whose welfare Congress intended to further. Such language does not indicate an intent to provide for private rights of action. "There would be far less reason to infer a private remedy in favor of individual persons if Congress, instead of drafting Title IX [of the Education Amendments of 1972] with an unmistakable focus on the benefited class, had written it simply as a ban on discriminatory conduct by recipients of federal funds or as a prohibition against the disbursement of public funds to educational institutions engaged in discriminatory practices." Cannon v. University of Chicago, supra, at 690-693; see also Touche Ross & Co. v. Redington, supra, at 569; Cort v. Ash, supra, at 80-82. Section 10 of the Rivers and Harbors Appropriation Act is the kind of general ban which carries with it no implication of an intent to confer rights on a particular class of persons.
Neither the Court of Appeals nor respondents have identified anything in the legislative history suggesting that § 10 was created for the especial benefit of a particular class. On the contrary, the legislative history supports the view that *295 the Act was designed to benefit the public at large by empowering the Federal Government to exercise its authority over interstate commerce with respect to obstructions on navigable rivers caused by bridges and similar structures. In part, the Act was passed in response to this Court's decision in Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1 (1888). There the Court held that there was no federal common law "which prohibits obstructions and nuisances in navigable rivers." Id., at 8. Although Willamette involved private parties, the clear implication of the Court's opinion was that in the absence of specific legislation no party, including the Federal Government, would be empowered to take any action under federal law with respect to such obstructions. The Act was intended to enable the Secretary of War to take such action.[6] See 21 Cong. Rec. 8603, 8605, and 8607 (1890); see also United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 663-664 (1973); United States v. Standard Oil Co., 384 U.S. 224, 227-229 (1966); United States v. Republic Steel Corp., 362 U.S. 482, 485-488, 499-500 (1960). Congress was not concerned with the rights of individuals.
It is not surprising, therefore, that there is no "indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one." Cort v. Ash, 422 U. S., at 78,82-84; *296 Touche Ross & Co. v. Redington, 442 U. S., at 571; Cannon v. University of Chicago, 441 U. S., at 694-703. The Court of Appeals recognized as much: "The legislative history of the Rivers and Harbors Act of 1899 does not reflect a congressional intent either to afford a private remedy or to deny one." 610 F.2d, at 588. This silence on the remedy question serves to confirm that in enacting the Act, Congress was concerned not with private rights but with the Federal Government's ability to respond to obstructions on navigable waterways.[7]
*297 As recently emphasized, the focus of the inquiry is on whether Congress intended to create a remedy. Universities Research Assn., Inc. v. Coutu, 450 U. S., at 771-772; Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S., at 23-24; Touche Ross & Co. v. Redington, supra, at 575-576. The federal judiciary will not engraft a remedy on a statute, no matter how salutary, that Congress did not intend to provide. Here consideration of the first two Cort factors is dispositive. The language of the statute and its legislative history do not suggest that the Act was intended to create federal rights for the *298 especial benefit of a class of persons but rather that it was intended to benefit the public at large through a general regulatory scheme to be administered by the then Secretary of War. Nor is there any evidence that Congress anticipated that there would be a private remedy. This being the case, it is unnecessary to inquire further to determine whether the purpose of the statute would be advanced by the judicial implication of a private action or whether such a remedy is within the federal domain of interest. These factors are only of relevance if the first two factors give indication of congressional intent to create the remedy. Touche Ross & Co. v. Redington, supra, at 574-576. There being no such indication, the judgment of the Court of Appeals must be reversed.
III
Petitioner the State of California urges that we reach the merits of these caseswhether permits are required for the state water allocation projectsregardless of our disposition of the private-cause-of-action issue. This we decline to do. Our ruling that there is no private cause of action permitting respondents to commence this action disposes of the cases: we cannot consider the merits of a claim which Congress has not authorized respondents to raise.
The judgment of the Court of Appeals is accordingly reversed, and the cases are remanded for proceedings consistent with this opinion.
It is so ordered. | Under review here is a decision of the Court of Appeals for the Ninth Circuit holding that private parties may sue under the Rivers and Harbors Appropriation Act of 1899 to enforce 10 of that Act. An environmental organization and two private citizens (hereafter respondents)[1] seek to enjoin the construction and operation of water diversion facilities which are part of the California Water Project (CWP). They rely upon 10 of the Act, which prohibits "[t]he creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States"[2] Since the Act does not explicitly create a private *290 enforcement mechanism, the initial question presented by these consolidated cases is whether such a private right of action can be implied on behalf of those allegedly injured by a claimed violation of 10. Petitioner State of California also asks us to decide whether the Act requires permits for the state water allocation projects involved in these cases. I The California Water Project consists of a series of water storage and transportation facilities designed primarily to transport water from the relatively moist climate of northern California to the more arid central and southern portions of the State. The water which will be used by the CWP is initially stored behind dams on the Sacramento River and, as needed, released into the Sacramento-San Joaquin Delta. The CWP then diverts a quantity of this water from the Delta and directs it into canals and aqueducts which will carry it south. The project has both federal and state components. The federal component, the Central Valley Project, is designed in part to provide a constant source of water for irrigation to the Central Valley of California. Water for this project is diverted from the Delta by the Tracy Pumping Plant into the 115-mile Delta-Mendota Canal which transports the water to the Mendota Pool in California's Central Valley. The State Water Project supplies water to both central and southern California by way of the California Aqueduct. Water for this project is drawn from the Delta by the Delta Pumping Plant and deposited in the *291 northern terminus of the California Aqueduct, through which it flows to its destinations in central and southern California. Under the present system the quality of water captured in the north and released into the Delta may be degraded by intruding salt waters from the Pacific Ocean. As a consequence the water which is diverted from the Delta to the Delta-Mendota Canal or the California Aqueduct is potentially of a lesser quality than is the water which is transported to the Delta from storage facilities in the north and from there deposited in the Delta. The State of California has proposed the construction of a 42-mile Peripheral Canal along the eastern edge of the Delta area, which would avoid any mixing of the water from the north with the saline water of the Delta. Instead of depositing water in the Delta, the canal would carry high quality water directly to the Tracy and Delta Pumping Plants. Respondents commenced the present action in 1971 in the United States District Court for the Northern District of California. Sierra Named as defendants were the various federal and state officials who administer the agencies responsible for overseeing the operation, construction, and regulation of the CWP facilities in question.[3] Petitioner water agencies, which had contracted with the State for water from the Delta and which had incurred extensive financial obligations in reliance thereon, were permitted to intervene.[4] The respondents alleged that present *292 and proposed diversions of water from the Delta degraded the quality of Delta water, and that such diversion violated 10 of the Rivers and Harbors Appropriation Act of 1899. They sought to enjoin further operation or construction of water diversion facilities until the consent of the Army Corps of Engineers was obtained as required by the Act. The District Court concluded that respondents could avail themselves of a "private cause of action" to enforce 10 of the Act, and ruled on the merits that approval of the Corps of Engineers was required by 10 for the Tracy and Delta Pumping Plants and the Peripheral Canal. Sierra The Court of Appeals for the Ninth Circuit agreed that a private cause of action to enforce the Act existed. Sierra It reversed the District Court as to the Tracy Pumping Plant, however, ruling that Congress has consented to its construction and operation.[5] We granted petitions for certiorari filed by the water agencies and the State of California. II outlined a "preferred approach for determining whether a private right of action should be implied from a federal statute" Transamerica Mortgage Advisors, ; see This approach listed four factors thought to be relevant to the inquiry: "First, is the plaintiff `one of the class for whose especial benefit the statute was enacted,' that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?" Combined, these four factors present the relevant inquiries to pursue in answering the recurring question of implied causes of action. Cases subsequent to Cort have explained that the ultimate issue is whether Congress intended to create a private right of action, see Universities Research Assn., ; Transamerica Mortgage Advisors, ; Touche Ross & ; but the four factors specified in Cort remain the "criteria through which this intent could be discerned." ; Transamerica Mortgage Advisors, Under Cort, the initial consideration is whether the plaintiff is a member of a class for "'whose especial benefit the statute was enacted.'" ; see Touche Ross & ; v. University of Without analyzing either the language or legislative history of the Act, the Court of Appeals here concluded that the Act was designed for the especial benefit of private parties who may suffer "special injury" caused by an unauthorized obstruction *294 to a navigable waterway. It was apparently reasoned that since Congress enacted a statute that forbids such obstructions in navigable waters, any person who would be "especially harmed" by an unauthorized obstruction was an especial beneficiary of the Act. But such a definition of "especial" beneficiary makes this factor meaningless. Under this view, a victim of any crime would be deemed an especial beneficiary of the criminal statute's proscription. Cort did not adopt such a broad-gauge approach. The question is not simply who would benefit from the Act, but whether Congress intended to confer federal rights upon those beneficiaries. See In ascertaining this intent, the first consideration is the language of the Act. Here, the statute states no more than a general proscription of certain activities; it does not unmistakably focus on any particular class of beneficiaries whose welfare Congress intended to further. Such language does not indicate an intent to provide for private rights of action. "There would be far less reason to infer a private remedy in favor of individual persons if Congress, instead of drafting Title IX [of the Education Amendments of 1972] with an unmistakable focus on the benefited class, had written it simply as a ban on discriminatory conduct by recipients of federal funds or as a prohibition against the disbursement of public funds to educational institutions engaged in discriminatory practices." v. University of ; see also Touche Ross & ; Section 10 of the Rivers and Harbors Appropriation Act is the kind of general ban which carries with it no implication of an intent to confer rights on a particular class of persons. Neither the Court of Appeals nor respondents have identified anything in the legislative history suggesting that 10 was created for the especial benefit of a particular class. On the contrary, the legislative history supports the view that *295 the Act was designed to benefit the public at large by empowering the Federal Government to exercise its authority over interstate commerce with respect to obstructions on navigable rivers caused by bridges and similar structures. In part, the Act was passed in response to this Court's decision in Willamette Iron Bridge There the Court held that there was no federal common law "which prohibits obstructions and nuisances in navigable rivers." Although Willamette involved private parties, the clear implication of the Court's opinion was that in the absence of specific legislation no party, including the Federal Government, would be empowered to take any action under federal law with respect to such obstructions. The Act was intended to enable the Secretary of War to take such action.[6] See 21 Cong. Rec. 8603, 8605, and 8607 (1890); see also United ; United ; United Congress was not concerned with the rights of individuals. It is not surprising, therefore, that there is no "indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one."82-84; *296 Touche Ross & ; v. University of -703. The Court of Appeals recognized as much: "The legislative history of the Rivers and Harbors Act of 1899 does not reflect a congressional intent either to afford a private remedy or to deny one." This silence on the remedy question serves to confirm that in enacting the Act, Congress was concerned not with private rights but with the Federal Government's ability to respond to obstructions on navigable waterways.[7] *297 As recently emphasized, the focus of the inquiry is on whether Congress intended to create a remedy. Universities Research Assn., 450 U. S., at ; Transamerica Mortgage Advisors, 444 U. S., ; Touche Ross & The federal judiciary will not engraft a remedy on a statute, no matter how salutary, that Congress did not intend to provide. Here consideration of the first two Cort factors is dispositive. The language of the statute and its legislative history do not suggest that the Act was intended to create federal rights for the *298 especial benefit of a class of persons but rather that it was intended to benefit the public at large through a general regulatory scheme to be administered by the then Secretary of War. Nor is there any evidence that Congress anticipated that there would be a private remedy. This being the case, it is unnecessary to inquire further to determine whether the purpose of the statute would be advanced by the judicial implication of a private action or whether such a remedy is within the federal domain of interest. These factors are only of relevance if the first two factors give indication of congressional intent to create the remedy. Touche Ross & There being no such indication, the judgment of the Court of Appeals must be reversed. III Petitioner the State of California urges that we reach the merits of these caseswhether permits are required for the state water allocation projectsregardless of our disposition of the private-cause-of-action issue. This we decline to do. Our ruling that there is no private cause of action permitting respondents to commence this action disposes of the cases: we cannot consider the merits of a claim which Congress has not authorized respondents to raise. The judgment of the Court of Appeals is accordingly reversed, and the cases are remanded for proceedings consistent with this opinion. It is so ordered. |
Justice Sotomayor | concurring | false | Rotkiske v. Klemm | 2019-12-10T00:00:00 | null | https://www.courtlistener.com/opinion/4685522/rotkiske-v-klemm/ | https://www.courtlistener.com/api/rest/v3/clusters/4685522/ | 2,019 | null | null | null | null | Like my colleagues in both the majority and the partial
dissent, I agree that 15 U.S. C. §1692k(d) is a one-year
statute of limitations that typically begins to run when the
alleged violation “occurs,” not when the plaintiff discovers
it. Compare ante, at 1, with post, at 1 (GINSBURG, J., dis-
senting in part and from judgment). The only daylight be-
tween the majority and dissenting opinions is whether
petitioner Rotkiske forfeited reliance on an “equitable, fraud-
specific discovery rule” that forgives otherwise untimely fil-
ings. Ante, at 6–7; cf. post, at 4–5. Because I believe the
Court of Appeals fairly found that Rotkiske failed to pre-
serve an equitable argument of this sort, see 890 F.3d 422,
429, and n. 5 (CA3 2018), and because the Court did not
grant certiorari on that doctrine, I join the majority opinion.
I write separately to emphasize that this fraud-specific
equitable principle is not the “ ‘bad wine of recent vintage’ ”
of which my colleagues speak. Ante, at 5 (quoting TRW Inc.
v. Andrews, 534 U.S. 19, 37 (2001) (Scalia, J., concurring
in judgment)). Rather, the Court has long “recogni[zed]”
and applied this “historical exception for suits based on
fraud.” Id., at 37; see also id., at 27 (majority opinion) (not-
ing equitable discovery rule “in cases of fraud or conceal-
ment”); Holmberg v. Armbrecht, 327 U.S. 392 (1946); Ex-
ploration Co. v. United States, 247 U.S. 435 (1918); Bailey
2 ROTKISKE v. KLEMM
SOTOMAYOR, J., concurring
v. Glover, 21 Wall. 342 (1875); Sherwood v. Sutton, 21 F.
Cas. 1303 (No. 12,782) (CC NH 1828) (Story, J.). Nothing
in today’s decision prevents parties from invoking that well-
settled doctrine.
Cite as: 589 U. S. ____ (2019) 1
Opinion of GINSBURG, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–328
_________________
KEVIN C. ROTKISKE, PETITIONER v.
PAUL KLEMM, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[December 10, 2019]
JUSTICE GINSBURG, dissenting from the opinion in part
and from the judgment.
Generally, I agree with the Court, the “discovery rule”
does not apply to the one-year statute of limitations con-
tained in the Fair Debt Collection Practices Act (FDCPA),
15 U.S. C. §1692k(d). That limitations period ordinarily
commences to run on the date “the violation occurs,” ibid.
See TRW Inc. v. Andrews, 534 U.S. 19, 28–33 (2001). But
the ordinarily applicable time trigger does not apply when
fraud on the creditor’s part accounts for the debtor’s failure
to sue within one year of the creditor’s violation. Id., at 37
(Scalia, J., concurring in judgment). See also id., at 27 (ma-
jority opinion).
True, in the case at hand, debtor Rotkiske’s FDCPA claim
does not rest on any fraud inhering in the claim creditor
Klemm stated in his debt-collection suit. Rather, debtor
Rotkiske alleges that creditor Klemm commenced the debt-
collection suit too late. But Rotkiske was disarmed from
asserting that defense in Klemm’s suit, for he never re-
ceived notice of the suit and therefore had no opportunity
to defend against it. For the same reason, he was stopped
2 ROTKISKE v. KLEMM
Opinion of GINSBURG, J.
from raising an FDCPA claim challenging Klemm’s suit
within the one-year limitations period. By knowingly ar-
ranging for service of the complaint against Rotkiske at an
address where Rotkiske no longer lived, and filing a false
affidavit of service, Rotkiske alleges, Klemm engaged in
fraud. Such fraud, I would hold, warrants application of the
discovery rule to time Rotkiske’s FDCPA suit from the date
he learned of the default judgment against him.
As today’s decision recognizes, see ante, at 6–7, this Court
long ago “adopted as its own the old chancery rule that
where a plaintiff has been injured by fraud and remains in
ignorance of it without any fault or want of diligence or care
on his part, the bar of the statute [of limitations] does not
begin to run until the fraud is discovered.” Holmberg v.
Armbrecht, 327 U.S. 392, 397 (1946) (internal quotation
marks omitted). See also Bailey v. Glover, 21 Wall. 342, 347
(1875) (“[W]hen the object of the suit is to obtain relief
against a fraud, the bar of the statute does not commence
to run until the fraud is discovered or becomes known to the
party injured by it.”). Like the general discovery rule that
lower courts have “appl[ied] . . . when a statute is silent on
the issue” of a claim’s accrual, TRW Inc., 534 U.S., at 27
(quoting Rotella v. Wood, 528 U.S. 549, 555 (2000)), the
fraud-based discovery rule operates as a statutory pre-
sumption “read into every federal statute of limitation,”
Holmberg, 327 U.S., at 397. This circumscribed rule is dis-
tinct from the general discovery rule in that it governs only
“case[s] of fraud.” Merck & Co. v. Reynolds, 559 U.S. 633,
644 (2010). Unlike the general discovery rule, there is no
reason to believe the FDCPA displaced the fraud-based dis-
covery rule. The Court does not hold otherwise.
The fraud-based discovery rule has a thrust different
from equitable tolling.* “Equitable tolling” describes a doc-
trine that pauses, or “tolls,” a statutory limitations period
——————
*The two doctrines are often blended or confused. See Klehr v. A. O.
Cite as: 589 U. S. ____ (2019) 3
Opinion of GINSBURG, J.
after it has commenced. Lozano v. Montoya Alvarez, 572
U.S. 1, 10 (2014). A litigant qualifies for equitable tolling
only if he establishes “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circum-
stance stood in his way and prevented timely filing.” Me-
nominee Tribe of Wis. v. United States, 577 U. S. __, __
(2016) (slip op., at 5) (internal quotation marks omitted).
For example, in Burnett v. New York Central R. Co., 380
U.S. 424 (1965), a plaintiff filed an action under the Fed-
eral Employers’ Liability Act (FELA) in Ohio state court,
alleging that he sustained a workplace injury just under
three years earlier. Ibid. Several months later, the state
court dismissed the suit for improper venue under state
law. Id., at 425. The plaintiff promptly brought an identi-
cal action in federal district court. That court dismissed the
action on the ground that the FELA’s three-year statute of
limitations began to run when the plaintiff was injured and
had expired while his state-court action was pending. Ibid.
This Court reversed. Id., at 436. Yes, the limitations period
began to run on the date of the plaintiff’s injury. But, the
Court held, the clock tolled during the pendency of the
plaintiff’s state-court suit. Ibid. Subtracting the time con-
sumed by the state-court suit, the plaintiff’s federal action
was timely. Id., at 426, 434–436.
By contrast, the fraud-based discovery rule sets the time
——————
Smith Corp., 521 U.S. 179, 192 (1997). The Court has sometimes re-
ferred to Bailey v. Glover, 21 Wall. 342 (1875), and Holmberg v. Arm-
brecht, 327 U.S. 392 (1946), as equitable tolling decisions. See Lampf,
Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 363
(1991); Lozano v. Montoya Alvarez, 572 U.S. 1, 10–11 (2014). And it has
described Holmberg as “stand[ing] for the proposition that equity tolls
the statute of limitations in cases of fraud or concealment.” TRW Inc. v.
Andrews, 534 U.S. 19, 27 (2001). But as this Court recently clarified,
each doctrine has an independent office. See Gabelli v. SEC, 568 U.S.
442, 447, n. 2, 449 (2013) (addressing whether application of the fraud-
based discovery rule was appropriate after acknowledging that the plain-
tiff had expressly waived equitable tolling).
4 ROTKISKE v. KLEMM
Opinion of GINSBURG, J.
at which a claim accrues, i.e., the time when the statute of
limitations commences to run. See Merck & Co., 559 U.S.,
at 644–645. It is “an exception to the standard rule” that “a
claim accrues when the plaintiff has a complete and present
cause of action.” Gabelli v. SEC, 568 U.S. 442, 448–449
(2013) (internal quotation marks omitted). Accordingly,
when a plaintiff is “injured by fraud . . . ‘the bar of the stat-
ute does not begin to run until the fraud is discovered.’ ”
Holmberg, 327 U.S., at 397 (quoting Bailey, 21 Wall., at
348). For example, in Exploration Co. v. United States, 247
U.S. 435 (1918), a company had unlawfully procured land
from the United States through a series of fraudulent trans-
actions in 1902. Id., at 437, 438. The parties involved in
the transactions successfully concealed the scheme until
1909. Ibid. When the Government brought suit to void the
transactions, the company raised the six-year statute of
limitations as a defense. Id., at 445. Applying the fraud-
based discovery rule, the Court held that the limitations pe-
riod began to run only upon the Government’s discovery of
the fraud. Id., at 449. The suit was filed within six years
of that date and was therefore timely. Ibid.
I do not agree that Rotkiske failed to preserve a fraud-
based discovery rule argument in the Court of Appeals. See
ante, at 7. Rotkiske did raise the issue; he argued that “[a]t
the very least, . . . the discovery rule applies to [FDCPA]
claims based on false or misleading misrepresentations or
other self-concealing conduct.” Supp. Brief for Appellant in
No. 16–1668 (CA3), p.13 (citing Bailey, 21 Wall., at 350).
The Court of Appeals apparently declined to address that
argument because Rotkiske had failed to raise “equitable
tolling” in his appellate briefs. 890 F.3d 422, 428–429, and
n. 5 (CA3 2018). But failure to raise “equitable tolling”
should pose no obstacle to determining whether the discrete
fraud-based discovery rule applies to Rotkiske’s claim.
Nor do I agree that Rotkiske forfeited the issue by not
Cite as: 589 U. S. ____ (2019) 5
Opinion of GINSBURG, J.
raising it in his petition for certiorari. See ante, at 7. Gen-
erously read, Rotkiske asked whether a discovery rule of
any kind applies to the FDCPA’s one-year statute of limita-
tions. While hardly a model of the deft pleader’s art, the
petition for certiorari stated that Rotkiske did not learn of
Klemm’s debt-collection suit and default judgment until
long after their occurrence because of the “intended re-
service [of Klemm’s complaint] at a known incorrect address.”
Pet. for Cert. 8. His brief on the merits in this Court noted:
“Petitioner is not advocating that the Court adopt a gener-
ally applicable discovery rule.” Brief for Petitioner 16, n.16.
His reply brief was more precise: “The default judgment ob-
tained by [Klemm] at issue in [Rotkiske’s FDCPA com-
plaint] was made possible by the filing of a fraudulent Affi-
davit of Service.” Reply Brief 15. Indeed, the Court
recognizes that Rotkiske’s arguments included “a fraud-
specific discovery rule as an equitable doctrine.” Ante, at 4.
Rotkiske’s FDCPA complaint, in my view, falls comfort-
ably within the fraud-based discovery rule’s scope. See Brief
for Samuel L. Bray et al. as Amici Curiae 12–14. Rotkiske
alleged that Klemm engaged in “sewer service”—intention-
ally serving process in a manner designed to prevent Rot-
kiske from learning of the collection suit. Klemm did so,
according to Rotkiske, in order to ensure that Klemm’s un-
timely suit would result in a default judgment that would
remain undiscovered until time to oppose that judgment,
and to commence an FDCPA suit, ran out. Though Rot-
kiske did not allege that “sewer service” is itself a practice
independently proscribed by the FDCPA, such service is
nonetheless a fraudulent abuse that should trigger the
fraud-based discovery rule. See Reply Brief 15–17.
The Government urges that the fraud-based discovery
rule applies only when the fraudulent conduct is itself the
basis for the plaintiff’s claim for relief. Brief for United
States as Amicus Curiae 31–32. That is not so of Rotkiske’s
6 ROTKISKE v. KLEMM
Opinion of GINSBURG, J.
complaint, the Government observes, for his claim is prem-
ised on the assertion that Klemm’s debt-collection suit was
time barred.
I do not view the fraud-based discovery rule as so con-
fined and would hold that the rule governs if either the con-
duct giving rise to the claim is fraudulent, or if fraud infects
the manner in which the claim is presented. That under-
standing of the rule is consistent with its equitable roots
and historic rationale. Nearly two centuries ago, Justice
Story explained the rule this way: “[E]very statute is to be
expounded reasonably, so as to suppress, and not to extend,
the mischief[s ] which it was designed to cure.” Sherwood
v. Sutton, 21 F. Cas. 1303, 1307 (No. 12,782) (CC NH 1828).
Because statutes of limitations “preven[t] fraudulent and
unjust claims from starting up at great distances of time,”
a limitations provision “ought not . . . be so construed, as to
become an instrument to encourage fraud, if it admits of
any other reasonable interpretation.” Ibid. “[C]ases of
fraud, therefore, form an implied exception [to a limitations
prescription],” so as not to “permi[t] the defendant to avail
himself of his own fraud.” Ibid. This Court expressed the
same understanding of the fraud-based discovery rule in
Bailey. There, the Court stated: “To hold that by concealing
a fraud, or by committing a fraud in a manner that it con-
cealed itself until such time as the party committing the
fraud could plead the statute of limitations to protect it, is
to make the law which was designed to prevent fraud the
means by which it is made successful and secure.” 21 Wall.,
at 349.
Klemm allegedly employed fraudulent service to obtain
and conceal the default judgment that precipitated Rot-
kiske’s FDCPA claim. That allegation, if proved, should
suffice, under the fraud-based discovery rule, to permit ad-
judication of Rotkiske’s claim on its merits.
* * *
Cite as: 589 U. S. ____ (2019) 7
Opinion of GINSBURG, J.
For the reasons stated, I would vacate the judgment of
the Court of Appeals for the Third Circuit and remand the
case for further proceedings | Like my colleagues in both the majority and the partial dissent, I agree that 15 U.S. C. is a one-year statute of limitations that typically begins to run when the alleged violation “occurs,” not when the plaintiff discovers it. Compare ante, at 1, with post, at 1 (GINSBURG, J., dis- senting in part and from judgment). The only daylight be- tween the majority and dissenting opinions is whether petitioner Rotkiske forfeited reliance on an “equitable, fraud- specific discovery rule” that forgives otherwise untimely fil- ings. Ante, at 6–7; cf. post, at 4–5. Because I believe the Court of Appeals fairly found that Rotkiske failed to pre- serve an equitable argument of this sort, see 429, and n. 5 (CA3 2018), and because the Court did not grant certiorari on that doctrine, I join the majority opinion. I write separately to emphasize that this fraud-specific equitable principle is not the “ ‘bad wine of recent vintage’ ” of which my colleagues speak. Ante, at 5 (Scalia, J., concurring in judgment)). Rather, the Court has long “recogni[zed]” and applied this “historical exception for suits based on fraud.” at ; see also (not- ing equitable discovery rule “in cases of fraud or conceal- ment”); ; Ex- ploration ; 2 ROTKISKE v. KLEMM SOTOMAYOR, J., concurring v. Glover, ; 21 F. Cas. 1303 (No. 12,782) (CC NH 1828) (Story, J.). Nothing in today’s decision prevents parties from invoking that well- settled doctrine. Cite as: 589 U. S. (2019) 1 Opinion of GINSBURG, J. SUPREME COURT OF THE UNITED STATES No. 18–328 KEVIN C. ROTKISKE, PETITIONER v. PAUL KLEMM, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT [December 10, 2019] JUSTICE GINSBURG, dissenting from the opinion in part and from the judgment. Generally, I agree with the Court, the “discovery rule” does not apply to the one-year statute of limitations con- tained in the Fair Debt Collection Practices Act (FDCPA), 15 U.S. C. That limitations period ordinarily commences to run on the date “the violation occurs,” See TRW But the ordinarily applicable time trigger does not apply when fraud on the creditor’s part accounts for the debtor’s failure to sue within one year of the creditor’s violation. at (Scalia, J., concurring in judgment). See also (ma- jority opinion). True, in the case at hand, debtor Rotkiske’s FDCPA claim does not rest on any fraud inhering in the claim creditor Klemm stated in his debt-collection suit. Rather, debtor Rotkiske alleges that creditor Klemm commenced the debt- collection suit too late. But Rotkiske was disarmed from asserting that defense in Klemm’s suit, for he never re- ceived notice of the suit and therefore had no opportunity to defend against it. For the same reason, he was stopped 2 ROTKISKE v. KLEMM Opinion of GINSBURG, J. from raising an FDCPA claim challenging Klemm’s suit within the one-year limitations period. By knowingly ar- ranging for service of the complaint against Rotkiske at an address where Rotkiske no longer lived, and filing a false affidavit of service, Rotkiske alleges, Klemm engaged in fraud. Such fraud, I would hold, warrants application of the discovery rule to time Rotkiske’s FDCPA suit from the date he learned of the default judgment against him. As today’s decision recognizes, see ante, at 6–7, this Court long ago “adopted as its own the old chancery rule that where a plaintiff has been injured by fraud and remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute [of limitations] does not begin to run until the fraud is discovered.” v. Armbrecht, (internal quotation marks omitted). See also (“[W]hen the object of the suit is to obtain relief against a fraud, the bar of the statute does not commence to run until the fraud is discovered or becomes known to the party injured by it.”). Like the general discovery rule that lower courts have “appl[ied] when a statute is silent on the issue” of a claim’s accrual, TRW 534 U.S., ), the fraud-based discovery rule operates as a statutory pre- sumption “read into every federal statute of limitation,” 3 U.S., at This circumscribed rule is dis- tinct from the general discovery rule in that it governs only “case[s] of fraud.” Merck & 644 (2010). Unlike the general discovery rule, there is no reason to believe the FDCPA displaced the fraud-based dis- covery rule. The Court does not hold otherwise. The fraud-based discovery rule has a thrust different from equitable tolling.* “Equitable tolling” describes a doc- trine that pauses, or “tolls,” a statutory limitations period —————— *The two doctrines are often blended or confused. See Klehr v. A. O. Cite as: 589 U. S. (2019) 3 Opinion of GINSBURG, J. after it has commenced. 572 U.S. 1, 10 A litigant qualifies for equitable tolling only if he establishes “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circum- stance stood in his way and prevented timely filing.” Me- nominee Tribe of Wis. v. United States, 577 U. S. (2016) (slip op., at 5) (internal quotation marks omitted). For example, in Burnett v. New York Central R. Co., 380 U.S. 424 (1965), a plaintiff filed an action under the Fed- eral Employers’ Liability Act (FELA) in Ohio state court, alleging that he sustained a workplace injury just under three years earlier. Several months later, the state court dismissed the suit for improper venue under state law. The plaintiff promptly brought an identi- cal action in federal district court. That court dismissed the action on the ground that the FELA’s three-year statute of limitations began to run when the plaintiff was injured and had expired while his state-court action was pending. This Court reversed. Yes, the limitations period began to run on the date of the plaintiff’s injury. But, the Court held, the clock tolled during the pendency of the plaintiff’s state-court suit. Subtracting the time con- sumed by the state-court suit, the plaintiff’s federal action was timely. 434–436. By contrast, the fraud-based discovery rule sets the time —————— Smith Corp., The Court has sometimes re- ferred to and v. Arm- brecht, as equitable tolling decisions. See Lampf, Pleva, Lipkind, Prupis & (1991); And it has described as “stand[ing] for the proposition that equity tolls the statute of limitations in cases of fraud or concealment.” TRW v. Andrews, But as this Court recently clarified, each doctrine has an independent office. See 568 U.S. 442, 447, n. 2, 449 (2013) (addressing whether application of the fraud- based discovery rule was appropriate after acknowledging that the plain- tiff had expressly waived equitable tolling). 4 ROTKISKE v. KLEMM Opinion of GINSBURG, J. at which a claim accrues, i.e., the time when the statute of limitations commences to run. See Merck & Co., 559 U.S., at 644–645. It is “an exception to the standard rule” that “a claim accrues when the plaintiff has a complete and present cause of action.” 448–449 (2013) (internal quotation marks omitted). Accordingly, when a plaintiff is “injured by fraud ‘the bar of the stat- ute does not begin to run until the fraud is discovered.’ ” 3 U.S., at (quoting 21 Wall., at 348). For example, in Exploration 247 U.S. 435 a company had unlawfully procured land from the United States through a series of fraudulent trans- actions in 1902. at 4, 438. The parties involved in the transactions successfully concealed the scheme until 1909. When the Government brought suit to void the transactions, the company raised the six-year statute of limitations as a defense. Applying the fraud- based discovery rule, the Court held that the limitations pe- riod began to run only upon the Government’s discovery of the fraud. The suit was filed within six years of that date and was therefore timely. I do not agree that Rotkiske failed to preserve a fraud- based discovery rule argument in the Court of Appeals. See ante, at 7. Rotkiske did raise the issue; he argued that “[a]t the very least, the discovery rule applies to [FDCPA] claims based on false or misleading misrepresentations or other self-concealing conduct.” Supp. Brief for Appellant in No. 16–1668 (CA3), p.13 (citing ). The Court of Appeals apparently declined to address that argument because Rotkiske had failed to raise “equitable tolling” in his appellate briefs. 428–429, and n. 5 (CA3 2018). But failure to raise “equitable tolling” should pose no obstacle to determining whether the discrete fraud-based discovery rule applies to Rotkiske’s claim. Nor do I agree that Rotkiske forfeited the issue by not Cite as: 589 U. S. (2019) 5 Opinion of GINSBURG, J. raising it in his petition for certiorari. See ante, at 7. Gen- erously read, Rotkiske asked whether a discovery rule of any kind applies to the FDCPA’s one-year statute of limita- tions. While hardly a model of the deft pleader’s art, the petition for certiorari stated that Rotkiske did not learn of Klemm’s debt-collection suit and default judgment until long after their occurrence because of the “intended re- service [of Klemm’s complaint] at a known incorrect address.” Pet. for Cert. 8. His brief on the merits in this Court noted: “Petitioner is not advocating that the Court adopt a gener- ally applicable discovery rule.” Brief for Petitioner 16, n.16. His reply brief was more precise: “The default judgment ob- tained by [Klemm] at issue in [Rotkiske’s FDCPA com- plaint] was made possible by the filing of a fraudulent Affi- davit of Service.” Reply Brief 15. Indeed, the Court recognizes that Rotkiske’s arguments included “a fraud- specific discovery rule as an equitable doctrine.” Ante, at 4. Rotkiske’s FDCPA complaint, in my view, falls comfort- ably within the fraud-based discovery rule’s scope. See Brief for Samuel L. Bray et al. as Amici Curiae 12–14. Rotkiske alleged that Klemm engaged in “sewer service”—intention- ally serving process in a manner designed to prevent Rot- kiske from learning of the collection suit. Klemm did so, according to Rotkiske, in order to ensure that Klemm’s un- timely suit would result in a default judgment that would remain undiscovered until time to oppose that judgment, and to commence an FDCPA suit, ran out. Though Rot- kiske did not allege that “sewer service” is itself a practice independently proscribed by the FDCPA, such service is nonetheless a fraudulent abuse that should trigger the fraud-based discovery rule. See Reply Brief 15–17. The Government urges that the fraud-based discovery rule applies only when the fraudulent conduct is itself the basis for the plaintiff’s claim for relief. Brief for United States as Amicus Curiae 31–32. That is not so of Rotkiske’s 6 ROTKISKE v. KLEMM Opinion of GINSBURG, J. complaint, the Government observes, for his claim is prem- ised on the assertion that Klemm’s debt-collection suit was time barred. I do not view the fraud-based discovery rule as so con- fined and would hold that the rule governs if either the con- duct giving rise to the claim is fraudulent, or if fraud infects the manner in which the claim is presented. That under- standing of the rule is consistent with its equitable roots and historic rationale. Nearly two centuries ago, Justice Story explained the rule this way: “[E]very statute is to be expounded reasonably, so as to suppress, and not to extend, the mischief[s ] which it was designed to cure.” Sherwood v. Sutton, (No. 12,782) (CC NH 1828). Because statutes of limitations “preven[t] fraudulent and unjust claims from starting up at great distances of time,” a limitations provision “ought not be so construed, as to become an instrument to encourage fraud, if it admits of any other reasonable interpretation.” “[C]ases of fraud, therefore, form an implied exception [to a limitations prescription],” so as not to “permi[t] the defendant to avail himself of his own fraud.” This Court expressed the same understanding of the fraud-based discovery rule in There, the Court stated: “To hold that by concealing a fraud, or by committing a fraud in a manner that it con- cealed itself until such time as the party committing the fraud could plead the statute of limitations to protect it, is to make the law which was designed to prevent fraud the means by which it is made successful and secure.” 21 Wall., at 349. Klemm allegedly employed fraudulent service to obtain and conceal the default judgment that precipitated Rot- kiske’s FDCPA claim. That allegation, if proved, should suffice, under the fraud-based discovery rule, to permit ad- judication of Rotkiske’s claim on its merits. * * * Cite as: 589 U. S. (2019) 7 Opinion of GINSBURG, J. For the reasons stated, I would vacate the judgment of the Court of Appeals for the Third Circuit and remand the case for further proceedings |
Justice Powell | dissenting | false | INS v. Cardoza-Fonseca | 1987-03-09T00:00:00 | null | https://www.courtlistener.com/opinion/111838/ins-v-cardoza-fonseca/ | https://www.courtlistener.com/api/rest/v3/clusters/111838/ | 1,987 | 1986-051 | 2 | 6 | 3 | Many people come to our country because they fear persecution in their homeland. Congress has provided two forms of relief for such people: asylum, see Immigration and Nationality Act of 1952, § 208(a), as added by 94 Stat. 105, 8 U.S. C. § 1158(a); and withholding of deportation, see 66 Stat. 212, § 243(h), as amended, 94 Stat. 107, 8 U.S. C. § 1253(h). The Board of Immigration Appeals (BIA) has concluded that there is no practical distinction between the objective proofs an alien must submit to be eligible for these two forms of relief. The Court rejects this conclusion. Because I believe the BIA's interpretation of the statute is reasonable, I dissent.
I
The Court's opinion seems to assume that the BIA has adopted a rigorous mathematical approach to asylum cases, requiring aliens to demonstrate an objectively quantifiable risk of persecution in their homeland that is more than 50%. The Court then argues that such a position is inconsistent with the language and history of the Act. But this has never been the BIA's position. Thus, it is useful to examine the BIA's approach in some detail before evaluating the Court's *456 rejection of the BIA's approach. After all, the BIA is the tribunal with the primary responsibility for applying the Act and the greatest experience in doing so.
The BIA's interpretation of the statutory term "well-founded fear" appears in Matter of Acosta, Interim Decision No. 2986 (Mar. 1, 1985).[1] Under the BIA's analysis, an immigration judge evaluating an asylum application should begin by determining the underlying historical facts. The burden of persuasion rests on the applicant, who must establish the truth of these facts by a preponderance of the evidence. See id., at 7 (citing, inter alia, 1A C. Gordon & H. Rosenfield, Immigration Law and Procedure § 5.10b, p. 5-121 (rev. ed. 1986)).
Once the immigration judge has decided what historical facts the applicant has demonstrated, he then decides whether those facts meet the definition of "refugee" set forth in § 101(a)(42)(A) of the Act, 8 U.S. C. § 1101(a)(42)(A). The major point of contention in this case concerns that section's requirement that the fear be "well-founded."[2] In *457 Acosta, the BIA adhered to the interpretation of that language it had developed in Matter of Dunar, 14 I. & N. Dec. 310 (1973):
" `[T]he requirement that the fear be "well-founded" rules out an apprehension which is purely subjective. . . . Some sort of showing must be made and this can ordinarily be done only by objective evidence. The claimant's own testimony as to the facts will sometimes be all that is available; but the crucial question is whether the testimony, if accepted as true, makes out a realistic likelihood that he will be persecuted.' " Acosta, supra, at 18-19 (quoting Dunar, supra, at 319) (emphasis added by Acosta Board).
The Acosta Board went on to caution:
"By use of such words [as `realistic likelihood'] we do not mean that `a well-founded fear of persecution' requires an alien to establish to a particular degree of certainty, such as a `probability' as opposed to a `possibility,' that he will become a victim of persecution. Rather as a practical matter, what we mean can best be described as follows: the evidence must demonstrate that (1) the alien possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort; (2) the persecutor is already aware, or could easily become aware, that the alien possesses this belief or characteristic; (3) the persecutor has the capability of punishing the alien; and (4) the persecutor has the inclination to punish the alien." Acosta, supra, at 22.
Finally, the Acosta opinion compared this "realistic likelihood" standard to the "clear probability" standard applied to *458 applications for withholding of deportation. The BIA's comments are insightful:
"One might conclude that `a well-founded fear of persecution,' which requires a showing that persecution is likely to occur, refers to a standard that is different from `a clear probability of persecution,' which requires a showing that persecution is `more likely than not' to occur. As a practical matter, however, the facts in asylum and withholding cases do not produce clear-cut instances in which such fine distinctions can be meaningfully made. Our inquiry in these cases, after all, is not quantitative, i. e., we do not examine a variety of statistics to discern to some theoretical degree the likelihood of persecution. Rather our inquiry is qualitative: we examine the alien's experiences and other external events to determine if they are of a kind that enable us to conclude the alien is likely to become the victim of persecution. In this context, we find no meaningful distinction between a standard requiring a showing that persecution is likely to occur and a standard requiring a showing that persecution is more likely than not to occur. . . . Accordingly, we conclude that the standards for asylum and withholding of deportation are not meaningfully different and, in practical application, converge." Id., at 25.
In sum, contrary to the Court's apparent conclusion, the BIA does not contend that both the "well-founded fear" standard and the "clear probability" standard require proof of a 51% chance that the alien will suffer persecution if he is returned to his homeland. The BIA plainly eschews analysis resting on mathematical probabilities. Rather, the BIA has adopted a four-part test requiring proof of facts that demonstrate a realistic likelihood of persecution actually occurring. The heart of the Acosta decision is the BIA's empirical conclusion, based on its experience in adjudicating asylum applications, that if the facts establish such a basis for an alien's *459 fear, it rarely will make a difference whether the judge asks if persecution is "likely" to occur or "more likely than not" to occur. If the alien can establish such a basis, he normally will be eligible for relief under either standard.
II
In Part II of its opinion, the Court examines the language of the Act. Section 243(h) provides that the Attorney General shall grant withholding of deportation to any country where "such alien's life or freedom would be threatened." 8 U.S. C. § 1253(h). Section 208(a) provides that the Attorney General has discretion to grant asylum "if the Attorney General determines that such alien is a refugee." § 1158(a). The crucial language of § 101(a)(42)(A) of the Act, as added by 94 Stat. 102, defines a refugee as a person who has "a well-founded fear of persecution." § 1101(a)(42)(A). In the Court's view, this language all but disposes of the case. Ante, at 427-432.
With respect to the issue presented by this case, I find the language far more ambiguous than the Court does. Respondent contends that the BIA has fallen into error by equating the objective showings required under §§ 208(a) and 243(h). The Court notes that the language of § 208(a) differs from the language of § 243(h) in that it contemplates a partially subjective inquiry. From this premise, the Court moves with little explanation to the conclusion that the objective inquiries under the two sections necessarily are different.
In reaching this conclusion, the Court gives short shrift to the words "well-founded," that clearly require some objective basis for the alien's fear. The critical question presented by this case is whether the objective basis required for a fear of persecution to be "well-founded" differs in practice from the objective basis required for there to be a "clear probability" of persecution. Because both standards necessarily contemplate some objective basis, I cannot agree with the Court's *460 implicit conclusion that the statute resolves this question on its face. In my view, the character of evidence sufficient to meet these two standards is a question best answered by an entity familiar with the types of evidence and issues that arise in such cases. Congress limited eligibility for asylum to those persons whom "the Attorney General determines" to be refugees. See § 208(a), 8 U.S. C. § 1158(a). The Attorney General has delegated the responsibility for making these determinations to the BIA. That Board has examined more of these cases than any court ever has or ever can. It has made a considered judgment that the difference between the "well-founded" and the "clear probability" standards is of no practical import: that is, the evidence presented in asylum and withholding of deportation cases rarely, if ever, will meet one of these standards without meeting both. This is just the type of expert judgment formed by the entity to whom Congress has committed the question to which we should defer.
The Court ignores the practical realities recognized by the expert agency and instead concentrates on semantic niceties. It posits a hypothetical situation in which a government sought to execute every 10th adult male. In its view, fear of such executions would be "well-founded" even if persecution of a particular individual would not be "more likely than not" to occur. See ante, at 431. But this hypothetical is irrelevant; it addresses a mathematically demanding interpretation of "well-founded" that has no relation to the BIA's actual treatment of asylum applications. Nor does it address the validity of the BIA's judgment that evidence presenting this distinction will be encountered infrequently, if ever.
Common sense and human experience support the BIA's conclusion. Governments rarely persecute people by the numbers. It is highly unlikely that the evidence presented at an asylum or withholding of deportation hearing will demonstrate the mathematically specific risk of persecution posited by the Court's hypothetical. Taking account of the *461 types of evidence normally available in asylum cases, the BIA has chosen to make a qualitative evaluation of "realistic likelihoods." As I read the Acosta opinion, an individual who fled his country to avoid mass executions might be eligible for both withholding of deportation and asylum, whether or not he presented evidence of the numerical reach of the persecution. See Acosta, Interim Decision No. 2986, at 18-25.[3] Nowhere does the Court consider whether the BIA's four-element interpretation of "well-founded" is unreasonable. Nor does the Court consider the BIA's view of the types of evidentiary presentations aliens generally make in asylum cases.
In sum, the words Congress has chosen "well-founded" fear are ambiguous. They contemplate some objective basis without specifying a particular evidentiary threshold. There is no reason to suppose this formulation is inconsistent with the analysis set forth in Acosta. The BIA has concluded that a fear is not "well-founded" unless the fear has an objective basis indicating that there is a "realistic likelihood" that persecution would occur. Based on the text of the Act alone, I cannot conclude that this conclusion is unreasonable.
III
The Court bolsters its interpretation of the language of the Act by reference to three parts of the legislative history. A closer examination of these materials demonstrates that each of them is ambiguous. Nothing the Court relies on provides a positive basis for arguing that there is a material difference between the two standards.
*462 A
First, the Court cites legislative history indicating that Congress wished to preserve some existing standard when it placed the words "well-founded fear" in the Act. The Court concludes that the standard Congress intended to preserve was the BIA's practice under the old § 203(a)(7), 79 Stat. 913 (1965). That section authorized the Attorney General to grant conditional entry to aliens fleeing from Communist countries or the Middle East, so long as they established a "fear of persecution." The Court argues that Congress chose the words "well-founded fear" to "preserve" as an asylum standard the prior interpretation of the word "fear" in the standard for conditional entry.
In contrast, the United States argues that Congress chose the words "well-founded fear" to preserve the Attorney General's regulations governing applications for asylum by aliens in the United States.[4] These regulations were substantially in accord with the BIA's view, namely that there is no significant difference between the "well-founded fear" and "clear probability" standards. Compare 8 CFR §§ 108.3(a) and 236.3 (a)(2) (1980) (asylum) with 8 CFR § 242.17(c) (1980) (withholding of deportation). Common sense suggests that the United States has the better of this argument. It is more natural to speak of "preserving" an interpretation that had governed the same form of relief than one that had applied to a different form of relief.
Moreover, the legislative history makes it clear that Congress was referring to the regulations rather than to § 203(a)(7). The Senate Report states that the bill "improv[es] *463 and clarif[ies] the procedures for determining asylum claims filed by aliens who are physically present in the United States. The substantive standard is not changed." S. Rep. No. 96-256, p. 9 (1979). As the Court recognizes, ante, at 435, n. 17, this statement unquestionably refers to the informal procedures for aliens in the United States, not the statutory procedures under § 203(a)(7).[5] Similarly, the House Report states that "the new definition does not create a new and expanded means of entry, but instead regularizes and formalizes the policies and practices that have been followed in recent years." H. R. Rep. No. 96-608, p. 10 (1979) (emphasis added). Congress hardly would have felt a need to "formalize" the statutory procedures under § 203(a)(7). Indeed, the House Report cites the Attorney General's regulations as the extant procedures to which it was referring. H. R. Rep., at 17.
In my view, the legislative history indicates that Congress' choice of the words "well-founded" fear as the standard of eligibility for asylum was intended to carry forward the practice of the Attorney General in adjudicating asylum applications. The Attorney General had concluded that the standard for asylum was substantially identical to the standard for withholding of deportation. His decision to interpret the language of § 208 in the same way is entirely reasonable.
B
Second, the Court relies on materials interpreting the United Nations Protocol. Ante, at 437-440. For several reasons, I find these materials to be only marginally relevant. *464 Both the President and the Senate thought that the Protocol was perfectly consistent with our country's immigration laws. See INS v. Stevic, 467 U.S. 407, 417 (1984) (citing legislative history). We should be reluctant to assume that our country has been violating the Protocol during the 20 years since its adoption. Moreover, as the Court recognizes, statements by the United Nations High Commissioner for Refugees have no binding force, because " `the determination of refugee status under the . . . Protocol . . . is incumbent upon the Contracting State.' " Ante, at 439, n. 22 (quoting Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status 1(ii) (Geneva, 1979)).
In any event, the materials discussed by the Court shed little or no light on the question presented by this case. None of them states that the burden of proof for nonrefoulement under Article 33.1 of the United Nations Protocol of 1967 a remedy essentially identical to withholding of deportation under § 243(h) of the Act is higher than the burden of proof for asylum under Article 34. The only thing the materials tend to establish is that a mathematical approach to the likelihood of persecution in asylum cases is arguably inconsistent with the sense of the drafters of the Protocol. The BIA has declined to adopt such an approach. See supra, at 457-459. It is simply irrelevant that this approach might be inconsistent with the views of commentators on the Protocol.
C
Finally, the Court places great weight on the changes in the Act made by the Conference Committee. The Court notes that the Senate bill, S. 643, authorized the Attorney General to grant asylum if the applicant "is a refugee within the meaning of section 101(a)(42)(A) and his deportation or return would be prohibited under section 243(h) of this Act." S. Rep. No. 96-256, at 26. The Court conjectures that this language "indicates that the Senate recognized that *465 there is a difference between the `well-founded fear' standard and the clear-probability standard. The enactment of the House bill rather than the Senate bill in turn demonstrates that Congress eventually refused to restrict eligibility for asylum only to aliens meeting the stricter standard." Ante, at 442 (footnote omitted).
Neither the premise of the Court nor its conclusion is justified. The language of the Senate bill does not demonstrate that the Senate recognized a difference between the two standards. The Senate just as easily could have included the language to ensure that the Attorney General held to his position that there was no difference between the standards. Moreover, there is no reason to believe that the changes made by the Conference Committee reflected a considered rejection of this portion of the Senate's definition of refugee. Rather, the conference Committee Report demonstrates that the Conference thought both bills adopted the same general definition of refugee the U. N. definition. See H. R. Conf. Rep. No. 96-781, p. 19 (1980). The differences the Conference saw between the bills related to treatment of refugees still in their homeland, and to refugees who have been "firmly resettled" in another country. See ibid.
In short, I see no reason to believe that the minor differences in wording between the Senate bill and the Act as passed reflect a rejection of the position that there is no significant difference between the two standards.[6] Thus, I place no weight on the Conference Committee's choice of the language of the House bill.
IV
Even if I agreed with the Court's conclusion that there is a significant difference between the standards for asylum and *466 withholding of deportation, I would reverse the decision of the Court of Appeals and uphold the decision of the BIA in this case.[7] A careful reading of the decisions of the BIA and the Immigration Judge demonstrates that the BIA applied the lower asylum standard to this case.
Respondent's claim for asylum rested solely on testimony that her brother had experienced difficulties with the authorities in Nicaragua. The Immigration Judge rejected respondent's claim because he found "no evidence of any substance in the record other than her brother's claim to asylum." App. to Pet. for Cert. 27a. He further found:
"None of the evidence indicates that the respondent would be persecuted for political beliefs, whatever they may be, or because she belongs to a particular social group. She has not proven that she or any other members of her family, other than her brother, has [sic] been detained, interrogated, arrested and imprisoned, tortured and convicted and sentenced by the regime presently in power in Nicaragua." Ibid.
The absence of such evidence was particularly probative, because many of the other members of respondent's family her parents, two sisters, her brother's wife, and her brother's *467 two children were still in Nicaragua and thus presumably subject to the persecution respondent feared.
On appeal, the BIA affirmed. It decided this case after the passage of the Act, but before its opinion in Acosta. At that time, the BIA was confronted with a number of conflicting decisions by Courts of Appeals as to the correct standard for evaluating asylum applications. The BIA noted three different formulations of the "well-founded fear" standard: the "clear probability" test, see Rejaie v. INS, 691 F.2d 139 (CA3 1982); the "good reason" test, see Stevic v. Sava, 678 F.2d 401 (CA2 1982), rev'd on other grounds, INS v. Stevic, 467 U.S. 407 (1984); and the "realistic likelihood" test the BIA had adopted in Matter of Dunar, 14 I. & N. Dec. 310 (1973). App. to Pet. for Cert. 21a. See supra, at 456-459 (discussing Acosta). Reviewing the evidence respondent had submitted to the Immigration Judge, the BIA concluded that respondent could not obtain relief under any of the standards. The BIA focused especially on the fact that respondent
"has openly admitted that she herself has taken no actions against the Nicaraguan government. She admits that she has never been politically active. She testified that she never assisted her brother in any of his political activities. Moreover, she admits that she has never been singled out for persecution by the present government." App. to Pet. for Cert. 22a.[8]
Respondent filed a petition for review with the Court of Appeals for the Ninth Circuit. Without examining either the factual or legal basis for the BIA's decision, the court granted the petition, reversed the BIA's decision, and remanded the application to the BIA for further consideration. *468 767 F.2d 1448 (1985). The sole basis articulated for this action was a conclusion that the BIA had applied the wrong legal standard. The Court of Appeals repeated its position that the standards for asylum and withholding of deportation are different. According to that court, an asylum applicant must "present `specific facts' through objective evidence to prove either past persecution or `good reason' to fear future persecution." Id., at 1453 (quoting Carvajal-Munoz v. INS, 743 F.2d 562, 574 (CA7 1984)) (emphasis added). It then noted that the BIA had reached a different conclusion in Acosta and stated:
"[T]he Board appears to feel that it is exempt from the holding of Marbury v. Madison . . . and not constrained by circuit court opinions. . . . [T]he Board applied its own construction of the applicant's burden of proof in an asylum case to the claims of both Cardoza-Fonseca and [her copetitioner]. It held that they were required to demonstrate a clear probability of persecution in order to be declared eligible for asylum." 767 F.2d, at 1454 (citation omitted).
This statement is simply inconsistent with the BIA's opinion. As I have explained, the BIA acknowledged the conflicting decisions of the various Courts of Appeals and explicitly tested the application under three different standards. The least burdensome of these the "good reason" standard is identical to the court's statement quoted supra this page. The Court of Appeals completely ignored the words in which the BIA framed its decision. It failed to examine the factual findings on which the decision rested. At least in this case, it appears that the Court of Appeals, and not the BIA, has misunderstood the proper relation between courts and agencies. That court properly could have considered whether substantial evidence supported the BIA's conclusion that respondent failed to demonstrate a "good reason" to fear persecution, but it should not have assumed that *469 the BIA tested respondent's application by a higher standard than the BIA's own opinion reflects.
V
In my view, the Court misconstrues the Act and misreads its legislative history. Moreover, neither this Court nor the Court of Appeals has identified an error in the decision of the BIA in this case. Neither court has examined the factual findings on which the decision rested, or the legal standard the BIA applied to these facts. I would reverse the decision of the Court of Appeals.
| Many people come to our country because they fear persecution in their homeland. Congress has provided two forms of relief for such people: asylum, see Immigration and Nationality Act of 1952, 208(a), as added by 8 U.S. C. 1158(a); and withholding of deportation, see 243(h), as amended, 8 U.S. C. 1253(h). The Board of Immigration Appeals (BIA) has concluded that there is no practical distinction between the objective proofs an alien must submit to be eligible for these two forms of relief. The Court rejects this conclusion. Because I believe the BIA's interpretation of the statute is reasonable, I dissent. I The Court's opinion seems to assume that the BIA has adopted a rigorous mathematical approach to asylum cases, requiring aliens to demonstrate an objectively quantifiable risk of persecution in their homeland that is more than 50%. The Court then argues that such a position is inconsistent with the language and history of the Act. But this has never been the BIA's position. Thus, it is useful to examine the BIA's approach in some detail before evaluating the Court's *456 rejection of the BIA's approach. After all, the BIA is the tribunal with the primary responsibility for applying the Act and the greatest experience in doing so. The BIA's interpretation of the statutory term "well-founded fear" appears in Matter of Acosta, Interim Decision No. 2986[1] Under the BIA's analysis, an immigration judge evaluating an asylum application should begin by determining the underlying historical facts. The burden of persuasion rests on the applicant, who must establish the truth of these facts by a preponderance of the evidence. See at 7 (citing, inter alia, 1A C. Gordon & H. Rosenfield, Immigration Law and Procedure 5.10b, p. 5-121 (rev. ed. 1986)). Once the immigration judge has decided what historical facts the applicant has demonstrated, he then decides whether those facts meet the definition of "refugee" set forth in 101(a)(42)(A) of the Act, 8 U.S. C. 1101(a)(42)(A). The major point of contention in this case concerns that section's requirement that the fear be "well-founded."[2] In *457 Acosta, the BIA adhered to the interpretation of that language it had developed in Matter of : " `[T]he requirement that the fear be "well-founded" rules out an apprehension which is purely subjective. Some sort of showing must be made and this can ordinarily be done only by objective evidence. The claimant's own testimony as to the facts will sometimes be all that is available; but the crucial question is whether the testimony, if accepted as true, makes out a realistic likelihood that he will be persecuted.' " Acosta, (quoting ) (emphasis added by Acosta Board). The Acosta Board went on to caution: "By use of such words [as `realistic likelihood'] we do not mean that `a well-founded fear of persecution' requires an alien to establish to a particular degree of certainty, such as a `probability' as opposed to a `possibility,' that he will become a victim of persecution. Rather as a practical matter, what we mean can best be described as follows: the evidence must demonstrate that (1) the alien possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort; (2) the persecutor is already aware, or could easily become aware, that the alien possesses this belief or characteristic; (3) the persecutor has the capability of punishing the alien; and (4) the persecutor has the inclination to punish the alien." Acosta, Finally, the Acosta opinion compared this "realistic likelihood" standard to the "clear probability" standard applied to *458 applications for withholding of deportation. The BIA's comments are insightful: "One might conclude that `a well-founded fear of persecution,' which requires a showing that persecution is likely to occur, refers to a standard that is different from `a clear probability of persecution,' which requires a showing that persecution is `more likely than not' to occur. As a practical matter, however, the facts in asylum and withholding cases do not produce clear-cut instances in which such fine distinctions can be meaningfully made. Our inquiry in these cases, after all, is not quantitative, i. e., we do not examine a variety of statistics to discern to some theoretical degree the likelihood of persecution. Rather our inquiry is qualitative: we examine the alien's experiences and other external events to determine if they are of a kind that enable us to conclude the alien is likely to become the victim of persecution. In this context, we find no meaningful distinction between a standard requiring a showing that persecution is likely to occur and a standard requiring a showing that persecution is more likely than not to occur. Accordingly, we conclude that the standards for asylum and withholding of deportation are not meaningfully different and, in practical application, converge." In sum, contrary to the Court's apparent conclusion, the BIA does not contend that both the "well-founded fear" standard and the "clear probability" standard require proof of a 51% chance that the alien will suffer persecution if he is returned to his homeland. The BIA plainly eschews analysis resting on mathematical probabilities. Rather, the BIA has adopted a four-part test requiring proof of facts that demonstrate a realistic likelihood of persecution actually occurring. The heart of the Acosta decision is the BIA's empirical conclusion, based on its experience in adjudicating asylum applications, that if the facts establish such a basis for an alien's *459 fear, it rarely will make a difference whether the judge asks if persecution is "likely" to occur or "more likely than not" to occur. If the alien can establish such a basis, he normally will be eligible for relief under either standard. II In Part II of its opinion, the Court examines the language of the Act. Section 243(h) provides that the Attorney General shall grant withholding of deportation to any country where "such alien's life or freedom would be threatened." 8 U.S. C. 1253(h). Section 208(a) provides that the Attorney General has discretion to grant asylum "if the Attorney General determines that such alien is a refugee." 1158(a). The crucial language of 101(a)(42)(A) of the Act, as added by defines a refugee as a person who has "a well-founded fear of persecution." 1101(a)(42)(A). In the Court's view, this language all but disposes of the case. Ante, at 427-432. With respect to the issue presented by this case, I find the language far more ambiguous than the Court does. Respondent contends that the BIA has fallen into error by equating the objective showings required under 208(a) and 243(h). The Court notes that the language of 208(a) differs from the language of 243(h) in that it contemplates a partially subjective inquiry. From this premise, the Court moves with little explanation to the conclusion that the objective inquiries under the two sections necessarily are different. In reaching this conclusion, the Court gives short shrift to the words "well-founded," that clearly require some objective basis for the alien's fear. The critical question presented by this case is whether the objective basis required for a fear of persecution to be "well-founded" differs in practice from the objective basis required for there to be a "clear probability" of persecution. Because both standards necessarily contemplate some objective basis, I cannot agree with the Court's *460 implicit conclusion that the statute resolves this question on its face. In my view, the character of evidence sufficient to meet these two standards is a question best answered by an entity familiar with the types of evidence and issues that arise in such cases. Congress limited eligibility for asylum to those persons whom "the Attorney General determines" to be refugees. See 208(a), 8 U.S. C. 1158(a). The Attorney General has delegated the responsibility for making these determinations to the BIA. That Board has examined more of these cases than any court ever has or ever can. It has made a considered judgment that the difference between the "well-founded" and the "clear probability" standards is of no practical import: that is, the evidence presented in asylum and withholding of deportation cases rarely, if ever, will meet one of these standards without meeting both. This is just the type of expert judgment formed by the entity to whom Congress has committed the question to which we should defer. The Court ignores the practical realities recognized by the expert agency and instead concentrates on semantic niceties. It posits a hypothetical situation in which a government sought to execute every 10th adult male. In its view, fear of such executions would be "well-founded" even if persecution of a particular individual would not be "more likely than not" to occur. See ante, at 431. But this hypothetical is irrelevant; it addresses a mathematically demanding interpretation of "well-founded" that has no relation to the BIA's actual treatment of asylum applications. Nor does it address the validity of the BIA's judgment that evidence presenting this distinction will be encountered infrequently, if ever. Common sense and human experience support the BIA's conclusion. Governments rarely persecute people by the numbers. It is highly unlikely that the evidence presented at an asylum or withholding of deportation hearing will demonstrate the mathematically specific risk of persecution posited by the Court's hypothetical. Taking account of the *461 types of evidence normally available in asylum cases, the BIA has chosen to make a qualitative evaluation of "realistic likelihoods." As I read the Acosta opinion, an individual who fled his country to avoid mass executions might be eligible for both withholding of deportation and asylum, whether or not he presented evidence of the numerical reach of the persecution. See Acosta, Interim Decision No. 2986, at 18-25.[3] Nowhere does the Court consider whether the BIA's four-element interpretation of "well-founded" is unreasonable. Nor does the Court consider the BIA's view of the types of evidentiary presentations aliens generally make in asylum cases. In sum, the words Congress has chosen "well-founded" fear are ambiguous. They contemplate some objective basis without specifying a particular evidentiary threshold. There is no reason to suppose this formulation is inconsistent with the analysis set forth in Acosta. The BIA has concluded that a fear is not "well-founded" unless the fear has an objective basis indicating that there is a "realistic likelihood" that persecution would occur. Based on the text of the Act alone, I cannot conclude that this conclusion is unreasonable. III The Court bolsters its interpretation of the language of the Act by reference to three parts of the legislative history. A closer examination of these materials demonstrates that each of them is ambiguous. Nothing the Court relies on provides a positive basis for arguing that there is a material difference between the two standards. *462 A First, the Court cites legislative history indicating that Congress wished to preserve some existing standard when it placed the words "well-founded fear" in the Act. The Court concludes that the standard Congress intended to preserve was the BIA's practice under the old 203(a)(7), (1965). That section authorized the Attorney General to grant conditional entry to aliens fleeing from Communist countries or the Middle East, so long as they established a "fear of persecution." The Court argues that Congress chose the words "well-founded fear" to "preserve" as an asylum standard the prior interpretation of the word "fear" in the standard for conditional entry. In contrast, the United States argues that Congress chose the words "well-founded fear" to preserve the Attorney General's regulations governing applications for asylum by aliens in the United States.[4] These regulations were substantially in accord with the BIA's view, namely that there is no significant difference between the "well-founded fear" and "clear probability" standards. Compare 8 CFR 108.3(a) and 236.3 (a)(2) (1980) (asylum) with 8 CFR 242.17(c) (1980) Common sense suggests that the United States has the better of this argument. It is more natural to speak of "preserving" an interpretation that had governed the same form of relief than one that had applied to a different form of relief. Moreover, the legislative history makes it clear that Congress was referring to the regulations rather than to 203(a)(7). The Senate Report states that the bill "improv[es] *463 and clarif[ies] the procedures for determining asylum claims filed by aliens who are physically present in the United States. The substantive standard is not changed." S. Rep. No. 96-256, p. 9 (1979). As the Court recognizes, ante, at 435, n. 17, this statement unquestionably refers to the informal procedures for aliens in the United States, not the statutory procedures under 203(a)(7).[5] Similarly, the House Report states that "the new definition does not create a new and expanded means of entry, but instead regularizes and formalizes the policies and practices that have been followed in recent years." H. R. Rep. No. 96-608, p. 10 (1979) (emphasis added). Congress hardly would have felt a need to "formalize" the statutory procedures under 203(a)(7). Indeed, the House Report cites the Attorney General's regulations as the extant procedures to which it was referring. H. R. Rep., at 17. In my view, the legislative history indicates that Congress' choice of the words "well-founded" fear as the standard of eligibility for asylum was intended to carry forward the practice of the Attorney General in adjudicating asylum applications. The Attorney General had concluded that the standard for asylum was substantially identical to the standard for withholding of deportation. His decision to interpret the language of 208 in the same way is entirely reasonable. B Second, the Court relies on materials interpreting the United Nations Protocol. Ante, at 437-440. For several reasons, I find these materials to be only marginally relevant. *464 Both the President and the Senate thought that the Protocol was perfectly consistent with our country's immigration laws. See We should be reluctant to assume that our country has been violating the Protocol during the 20 years since its adoption. Moreover, as the Court recognizes, statements by the United Nations High Commissioner for Refugees have no binding force, because " `the determination of refugee status under the Protocol is incumbent upon the Contracting State.' " Ante, at 439, n. 22 (quoting Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status 1(ii) (Geneva, 1979)). In any event, the materials discussed by the Court shed little or no light on the question presented by this case. None of them states that the burden of proof for nonrefoulement under Article 33.1 of the United Nations Protocol of 1967 a remedy essentially identical to withholding of deportation under 243(h) of the Act is higher than the burden of proof for asylum under Article 34. The only thing the materials tend to establish is that a mathematical approach to the likelihood of persecution in asylum cases is arguably inconsistent with the sense of the drafters of the Protocol. The BIA has declined to adopt such an approach. See It is simply irrelevant that this approach might be inconsistent with the views of commentators on the Protocol. C Finally, the Court places great weight on the changes in the Act made by the Conference Committee. The Court notes that the Senate bill, S. 643, authorized the Attorney General to grant asylum if the applicant "is a refugee within the meaning of section 101(a)(42)(A) and his deportation or return would be prohibited under section 243(h) of this Act." S. Rep. No. 96-256, at 26. The Court conjectures that this language "indicates that the Senate recognized that *465 there is a difference between the `well-founded fear' standard and the clear-probability standard. The enactment of the House bill rather than the Senate bill in turn demonstrates that Congress eventually refused to restrict eligibility for asylum only to aliens meeting the stricter standard." Ante, at 442 (footnote omitted). Neither the premise of the Court nor its conclusion is justified. The language of the Senate bill does not demonstrate that the Senate recognized a difference between the two standards. The Senate just as easily could have included the language to ensure that the Attorney General held to his position that there was no difference between the standards. Moreover, there is no reason to believe that the changes made by the Conference Committee reflected a considered rejection of this portion of the Senate's definition of refugee. Rather, the conference Committee Report demonstrates that the Conference thought both bills adopted the same general definition of refugee the U. N. definition. See H. R. Conf. Rep. No. 96-781, p. 19 (1980). The differences the Conference saw between the bills related to treatment of refugees still in their homeland, and to refugees who have been "firmly resettled" in another country. See In short, I see no reason to believe that the minor differences in wording between the Senate bill and the Act as passed reflect a rejection of the position that there is no significant difference between the two standards.[6] Thus, I place no weight on the Conference Committee's choice of the language of the House bill. IV Even if I agreed with the Court's conclusion that there is a significant difference between the standards for asylum and *466 withholding of deportation, I would reverse the decision of the Court of Appeals and uphold the decision of the BIA in this case.[7] A careful reading of the decisions of the BIA and the Immigration Judge demonstrates that the BIA applied the lower asylum standard to this case. Respondent's claim for asylum rested solely on testimony that her brother had experienced difficulties with the authorities in Nicaragua. The Immigration Judge rejected respondent's claim because he found "no evidence of any substance in the record other than her brother's claim to asylum." App. to Pet. for Cert. 27a. He further found: "None of the evidence indicates that the respondent would be persecuted for political beliefs, whatever they may be, or because she belongs to a particular social group. She has not proven that she or any other members of her family, other than her brother, has [sic] been detained, interrogated, arrested and imprisoned, tortured and convicted and sentenced by the regime presently in power in Nicaragua." The absence of such evidence was particularly probative, because many of the other members of respondent's family her parents, two sisters, her brother's wife, and her brother's *467 two children were still in Nicaragua and thus presumably subject to the persecution respondent feared. On appeal, the BIA affirmed. It decided this case after the passage of the Act, but before its opinion in Acosta. At that time, the BIA was confronted with a number of conflicting decisions by Courts of Appeals as to the correct standard for evaluating asylum applications. The BIA noted three different formulations of the "well-founded fear" standard: the "clear probability" test, see ; the "good reason" test, see rev'd on other grounds, ; and the "realistic likelihood" test the BIA had adopted in Matter of App. to Pet. for Cert. 21a. See Reviewing the evidence respondent had submitted to the Immigration Judge, the BIA concluded that respondent could not obtain relief under any of the standards. The BIA focused especially on the fact that respondent "has openly admitted that she herself has taken no actions against the Nicaraguan government. She admits that she has never been politically active. She testified that she never assisted her brother in any of his political activities. Moreover, she admits that she has never been singled out for persecution by the present government." App. to Pet. for Cert. 22a.[8] Respondent filed a petition for review with the Court of Appeals for the Ninth Circuit. Without examining either the factual or legal basis for the BIA's decision, the court granted the petition, reversed the BIA's decision, and remanded the application to the BIA for further consideration. *468 The sole basis articulated for this action was a conclusion that the BIA had applied the wrong legal standard. The Court of Appeals repeated its position that the standards for asylum and withholding of deportation are different. According to that court, an asylum applicant must "present `specific facts' through objective evidence to prove either past persecution or `good reason' to fear future persecution." ) (emphasis added). It then noted that the BIA had reached a different conclusion in Acosta and stated: "[T]he Board appears to feel that it is exempt from the holding of Marbury v. Madison and not constrained by circuit court opinions. [T]he Board applied its own construction of the applicant's burden of proof in an asylum case to the claims of both Cardoza-Fonseca and [her copetitioner]. It held that they were required to demonstrate a clear probability of persecution in order to be declared eligible for asylum." This statement is simply inconsistent with the BIA's opinion. As I have explained, the BIA acknowledged the conflicting decisions of the various Courts of Appeals and explicitly tested the application under three different standards. The least burdensome of these the "good reason" standard is identical to the court's statement quoted this page. The Court of Appeals completely ignored the words in which the BIA framed its decision. It failed to examine the factual findings on which the decision rested. At least in this case, it appears that the Court of Appeals, and not the BIA, has misunderstood the proper relation between courts and agencies. That court properly could have considered whether substantial evidence supported the BIA's conclusion that respondent failed to demonstrate a "good reason" to fear persecution, but it should not have assumed that *469 the BIA tested respondent's application by a higher standard than the BIA's own opinion reflects. V In my view, the Court misconstrues the Act and misreads its legislative history. Moreover, neither this Court nor the Court of Appeals has identified an error in the decision of the BIA in this case. Neither court has examined the factual findings on which the decision rested, or the legal standard the BIA applied to these facts. I would reverse the decision of the Court of Appeals. |
Justice Marshall | concurring | true | Shell v. Mississippi | 1990-10-29T00:00:00 | null | https://www.courtlistener.com/opinion/112499/shell-v-mississippi/ | https://www.courtlistener.com/api/rest/v3/clusters/112499/ | 1,990 | 1990-001 | 2 | 8 | 0 | I concur in the reversal of petitioner's death sentence. For the benefit of lower courts confronted with the issue raised in this case, I write separately to clarify what I understand the basis of this disposition to be.
Petitioner was convicted of murder and sentenced to death. He appealed his sentence on the ground that the jury had been improperly instructed to consider whether the charged murder was "especially heinous, atrocious or cruel," an aggravating factor that we deemed unconstitutionally vague in Maynard v. Cartwright, 486 U.S. 356, 361-364 (1988). The Mississippi Supreme Court affirmed. It reasoned that Maynard was distinguishable because the trial court in this case limited the "especially heinous, atrocious or cruel" factor in its charge to the jury. The instruction in question provided:
"[T]he word heinous means extremely wicked or shockingly evil; atrocious means outrageously wicked and vile; and cruel means designed to inflict a high degree of pain with indifference to, or even enjoyment of[,] the suffering of others." 554 So. 2d 887, 905-906 (Miss. 1989).
These definitions, the court held, cured any constitutional deficiency in the underlying "heinous, atrocious or cruel" instruction. Id., at 906.
This conclusion was in error. The trial court in Maynard issued a supplemental instruction defining "especially heinous, atrocious or cruel" in terms nearly identical to the "limiting" instruction given in this case:
"[T]he term "heinous" means extremely wicked or shockingly evil; "atrocious" means outrageously wicked and vile; "cruel" means pitiless, or designed to inflict a high degree of pain, utter indifference to, or enjoyment of, the sufferings of others."' Cartwright v. Maynard, 822 F.2d 1477, 1488 (CA10 1987) (en banc).
*3 The Tenth Circuit sitting en banc held that this instruction did not cure the constitutional defect in the underlying "heinous, atrocious or cruel" instruction, see id., at 1489-1491, and, in affirming that judgment, this Court implicitly agreed.
The basis for this conclusion is not difficult to discern. Obviously, a limiting instruction can be used to give content to a statutory factor that "is itself too vague to provide any guidance to the sentencer" only if the limiting instruction's own "definitions are constitutionally sufficient," that is, only if the limiting instruction itself "provide[s] some guidance to the sentencer." Walton v. Arizona, 497 U.S. 639, 654 (1990). The trial court's definitions of "heinous" and "atrocious" in this case (and in Maynard) clearly fail this test; like "heinous" and "atrocious" themselves, the phrases "extremely wicked or shockingly evil" and "outrageously wicked and vile" could be used by "`[a] person of ordinary sensibility [to] fairly characterize almost every murder.'" Maynard v. Cartwright, supra, at 363 (quoting Godfrey v. Georgia, 446 U.S. 420, 428-429 (1980) (plurality opinion)) (emphasis added). Indeed, there is no meaningful distinction between these latter formulations and the "outrageously or wantonly vile, horrible and inhuman" instruction expressly invalidated in Godfrey v. Georgia, supra.
Nor is it of any consequence that the trial court defined "cruel" in an arguably more concrete fashion than "heinous" or "atrocious." Cf. Walton v. Arizona, supra, at 655 (approving instruction equating "cruel" with infliction of "mental anguish or physical abuse"). "It has long been settled that when a case is submitted to the jury on alternative theories the unconstitutionality of any of the theories requires that the conviction [or verdict] be set aside." Leary v. United States, 395 U.S. 6, 31-32 (1969); see also Boyde v. California, 494 U.S. 370, 379-380 (1990) (acknowledging principle in capital sentencing context). Even assuming that the trial court permissibly defined "cruel," the instruction in this case left the jury with two constitutionally infirm, alternative *4 bases on which to find that petitioner committed the charged murder in an "especially heinous, atrocious or cruel" fashion. See Bachellar v. Maryland, 397 U.S. 564, 569-571 (1970) (condemning post hoc speculation as to which alternative ground informed jury verdict).
There is no legally tenable distinction, in sum, between this case and Maynard v. Cartwright | I concur in the reversal of petitioner's death sentence. For the benefit of lower courts confronted with the issue raised in this case, I write separately to clarify what I understand the basis of this disposition to be. Petitioner was convicted of murder and sentenced to death. He appealed his sentence on the ground that the jury had been improperly instructed to consider whether the charged murder was "especially heinous, atrocious or cruel," an aggravating factor that we deemed unconstitutionally vague in The Mississippi Supreme Court affirmed. It reasoned that Maynard was distinguishable because the trial court in this case limited the "especially heinous, atrocious or cruel" factor in its charge to the jury. The instruction in question provided: "[T]he word heinous means extremely wicked or shockingly evil; atrocious means outrageously wicked and vile; and cruel means designed to inflict a high degree of pain with indifference to, or even enjoyment of[,] the suffering of others." These definitions, the court held, cured any constitutional deficiency in the underlying "heinous, atrocious or cruel" instruction. This conclusion was in error. The trial court in Maynard issued a supplemental instruction defining "especially heinous, atrocious or cruel" in terms nearly identical to the "limiting" instruction given in this case: "[T]he term "heinous" means extremely wicked or shockingly evil; "atrocious" means outrageously wicked and vile; "cruel" means pitiless, or designed to inflict a high degree of pain, utter indifference to, or enjoyment of, the sufferings of others."' *3 The Tenth Circuit sitting en banc held that this instruction did not cure the constitutional defect in the underlying "heinous, atrocious or cruel" instruction, see and, in affirming that judgment, this Court implicitly agreed. The basis for this conclusion is not difficult to discern. Obviously, a limiting instruction can be used to give content to a statutory factor that "is itself too vague to provide any guidance to the sentencer" only if the limiting instruction's own "definitions are constitutionally sufficient," that is, only if the limiting instruction itself "provide[s] some guidance to the sentencer." The trial court's definitions of "heinous" and "atrocious" in this case (and in Maynard) clearly fail this test; like "heinous" and "atrocious" themselves, the phrases "extremely wicked or shockingly evil" and "outrageously wicked and vile" could be used by "`[a] person of ordinary sensibility [to] fairly characterize almost every murder.'" ) (emphasis added). Indeed, there is no meaningful distinction between these latter formulations and the "outrageously or wantonly vile, horrible and inhuman" instruction expressly invalidated in Nor is it of any consequence that the trial court defined "cruel" in an arguably more concrete fashion than "heinous" or "atrocious." Cf. "It has long been settled that when a case is submitted to the jury on alternative theories the unconstitutionality of any of the theories requires that the conviction [or verdict] be set aside." ; see also Even assuming that the trial court permissibly defined "cruel," the instruction in this case left the jury with two constitutionally infirm, alternative *4 bases on which to find that petitioner committed the charged murder in an "especially heinous, atrocious or cruel" fashion. See There is no legally tenable distinction, in sum, between this case and |
Justice Breyer | concurring | false | New Jersey v. New York | 1998-05-26T00:00:00 | null | https://www.courtlistener.com/opinion/118213/new-jersey-v-new-york/ | https://www.courtlistener.com/api/rest/v3/clusters/118213/ | 1,998 | 1997-070 | 3 | 6 | 3 | Many of us have parents or grandparents who landed as immigrants at "Ellis Island, New York." And when this case was argued, I assumed that history would bear out that Ellis Island was part and parcel of New York. But that is not what the record has revealed. Rather, it contains a set of facts, set forth with care by Justice Souter and Justice Stevens (who do not disagree about the facts), which shows, in my view, that the filled portion of Ellis Island belongs to New Jersey.
I cannot agree with Justice Scalia that custom, assumption, and late 19th-century history fills in, and explains, an ambiguity in the original Compact between the States, for I do not find sufficient, relevant ambiguity. The word "relevant" is important, for the document, in fact, is highly ambiguous. But what I find the more serious and difficult ambiguity arises in sections upon which New York State does not *813 rely. See ante, at 773-775, 781-782, and nn. 3, 4 (discussing Article Third). The State has basically rested its case upon Article First and Article Second. See Brief for Defendant 11-15; Tr. of Oral Arg. 33, 35-36, 46. Those Articles specify that Ellis Island is in New Jersey waters, for the border between the States lies far to the east. Those Articles do mention an exception for New York's "present jurisdiction of and over Bedlow's and Ellis's islands," but they are silent about what would happen to an Ellis Island "avulsion," i. e., the creation of significant additional territory through landfill. As Justice Souter points out, ante, at 783, n. 6, silence is not ambiguity; silence means that ordinary background law applies; and that ordinary background law gives an island's avulsion not to the State that owns the island, but to the State in whose waters the avulsion is found. See Georgia v. South Carolina, 497 U.S. 376, 404 (1990); Nebraska v. Iowa, 143 U.S. 359, 361-362 (1892); see also ante, at 783-784.
Nor can I agree with Justice Stevens that New Jersey lost through prescription what once rightfully was its own. Too much of the evidence upon which he relies is evidence of events that took place during the time that neither New York nor New Jersey, but the Federal Government, controlled Ellis Island. At that time, Judge Wyzanski expressed the view that:
"Ellis Island and Bedloe's Island are no more a part of New York or New Jersey than the Philippine Islands or Hawaii are. They are territories of the United States not falling under the jurisdiction of any one of the fortyeight states." N. J. Exh. 43.
The Federal Government's virtually exclusive authority over the Island means that New Jersey could well have thought about the same. Perhaps more specialized property lawyers would have phrased their own conclusions in less ringing terms and with more numerous qualifications. But, still, *814 one cannot reasonably expect New Jersey to have mounted a major protest against New York's assertions of "sovereignty" (modest as they were) over territory that was within the control of the Federal Government. Nor can one expect the immigrants themselves to have taken a particular interest in state boundaries, for most would have thought not in terms of "New York" or "New Jersey," but of a New World that offered them opportunities denied them by the Old. Given this background, any legal rule of "prescription" that found New York to have surmounted its high barrier here would create serious problems of fairness in other cases.
For these reasons, in particular, and others, all spelled out in detail by Justice Souter, I must conclude that the filled portion of Ellis Island belongs not to New York, but to New Jersey. I therefore join the Court's opinion. | Many of us have parents or grandparents who landed as immigrants at "Ellis Island, New York." And when this case was argued, I assumed that history would bear out that Ellis Island was part and parcel of New York. But that is not what the record has revealed. Rather, it contains a set of facts, set forth with care by Justice Souter and Justice Stevens (who do not disagree about the facts), which shows, in my view, that the filled portion of Ellis Island belongs to New Jersey. I cannot agree with Justice Scalia that custom, assumption, and late 19th-century history fills in, and explains, an ambiguity in the original Compact between the States, for I do not find sufficient, relevant ambiguity. The word "relevant" is important, for the document, in fact, is highly ambiguous. But what I find the more serious and difficult ambiguity arises in sections upon which New York State does not *813 rely. See ante, at 773-775, 781-782, and nn. 3, 4 (discussing Article Third). The State has basically rested its case upon Article First and Article Second. See Brief for Defendant 11-15; Tr. of Oral Arg. 33, 35-36, 46. Those Articles specify that Ellis Island is in New Jersey waters, for the border between the States lies far to the east. Those Articles do mention an exception for New York's "present jurisdiction of and over Bedlow's and Ellis's islands," but they are silent about what would happen to an Ellis Island "avulsion," i. e., the creation of significant additional territory through landfill. As Justice Souter points out, ante, at 783, n. 6, silence is not ambiguity; silence means that ordinary background law applies; and that ordinary background law gives an island's avulsion not to the State that owns the island, but to the State in whose waters the avulsion is found. See ; ; see also ante, at 783-784. Nor can I agree with Justice Stevens that New Jersey lost through prescription what once rightfully was its own. Too much of the evidence upon which he relies is evidence of events that took place during the time that neither New York nor New Jersey, but the Federal Government, controlled Ellis Island. At that time, Judge Wyzanski expressed the view that: "Ellis Island and Bedloe's Island are no more a part of New York or New Jersey than the Philippine Islands or Hawaii are. They are territories of the United States not falling under the jurisdiction of any one of the fortyeight states." N. J. Exh. 43. The Federal Government's virtually exclusive authority over the Island means that New Jersey could well have thought about the same. Perhaps more specialized property lawyers would have phrased their own conclusions in less ringing terms and with more numerous qualifications. But, still, *814 one cannot reasonably expect New Jersey to have mounted a major protest against New York's assertions of "sovereignty" (modest as they were) over territory that was within the control of the Federal Government. Nor can one expect the immigrants themselves to have taken a particular interest in state boundaries, for most would have thought not in terms of "New York" or "New Jersey," but of a New World that offered them opportunities denied them by the Old. Given this background, any legal rule of "prescription" that found New York to have surmounted its high barrier here would create serious problems of fairness in other cases. For these reasons, in particular, and others, all spelled out in detail by Justice Souter, I must conclude that the filled portion of Ellis Island belongs not to New York, but to New Jersey. I therefore join the Court's opinion. |
Justice Kennedy | majority | false | Hall v. Florida | 2014-05-27T00:00:00 | null | https://www.courtlistener.com/opinion/2675753/hall-v-florida/ | https://www.courtlistener.com/api/rest/v3/clusters/2675753/ | 2,014 | null | null | null | null | This Court has held that the Eighth and Fourteenth
Amendments to the Constitution forbid the execution of
persons with intellectual disability. Atkins v. Virginia,
536 U.S. 304, 321 (2002). Florida law defines intellectual
disability to require an IQ test score of 70 or less. If, from
test scores, a prisoner is deemed to have an IQ above 70,
all further exploration of intellectual disability is fore
closed. This rigid rule, the Court now holds, creates an
unacceptable risk that persons with intellectual disability
will be executed, and thus is unconstitutional.
I
On February 21, 1978, Freddie Lee Hall, petitioner here,
and his accomplice, Mark Ruffin, kidnaped, beat, raped,
and murdered Karol Hurst, a pregnant, 21-year-old new
lywed. Afterward, Hall and Ruffin drove to a convenience
store they planned to rob. In the parking lot of the store,
they killed Lonnie Coburn, a sheriff’s deputy who at
tempted to apprehend them. Hall received the death
penalty for both murders, although his sentence for the
Coburn murder was later reduced on account of insuffi
cient evidence of premeditation. Hall v. Florida, 403
2 HALL v. FLORIDA
Opinion of the Court
So. 2d 1319, 1321 (Fla. 1981) (per curiam).
Hall argues that he cannot be executed because of his
intellectual disability. Previous opinions of this Court
have employed the term “mental retardation.” This opin
ion uses the term “intellectual disability” to describe the
identical phenomenon. See Rosa’s Law, 124 Stat. 2643
(changing entries in the U. S. Code from “mental retarda
tion” to “intellectual disability”); Schalock et. al, The Re
naming of Mental Retardation: Understanding the Change
to the Term Intellectual Disability, 45 Intellectual & De
velopmental Disabilities 116 (2007). This change in ter
minology is approved and used in the latest edition of the
Diagnostic and Statistical Manual of Mental Disorders,
one of the basic texts used by psychiatrists and other
experts; the manual is often referred to by its initials
“DSM,” followed by its edition number, e.g., “DSM–5.” See
American Psychiatric Association, Diagnostic and Statisti
cal Manual of Mental Disorders 33 (5th ed. 2013).
When Hall was first sentenced, this Court had not yet
ruled that the Eighth Amendment prohibits States from
imposing the death penalty on persons with intellectual
disability. See Penry v. Lynaugh, 492 U.S. 302, 340
(1989). And at the time, Florida law did not consider
intellectual disability as a statutory mitigating factor.
After this Court held that capital defendants must be
permitted to present nonstatutory mitigating evidence in
death penalty proceedings, Hitchcock v. Dugger, 481 U.S.
393, 398–399 (1987), Hall was resentenced. Hall then
presented substantial and unchallenged evidence of intel
lectual disability. School records indicated that his teach
ers identified him on numerous occasions as “[m]entally
retarded.” App. 482–483. Hall had been prosecuted for a
different, earlier crime. His lawyer in that matter later
testified that the lawyer “[c]ouldn’t really understand
anything [Hall] said.” Id., at 480. And, with respect to the
murder trial given him in this case, Hall’s counsel recalled
Cite as: 572 U. S. ____ (2014) 3
Opinion of the Court
that Hall could not assist in his own defense because he
had “ ‘a mental . . . level much lower than his age,’ ” at best
comparable to the lawyer’s 4-year-old daughter. Brief for
Petitioner 11. A number of medical clinicians testified
that, in their professional opinion, Hall was “significantly
retarded,” App. 507; was “mentally retarded,” id., at 517;
and had levels of understanding “typically [seen] with
toddlers,” id., at 523.
As explained below in more detail, an individual’s abil
ity or lack of ability to adapt or adjust to the requirements
of daily life, and success or lack of success in doing so, is
central to the framework followed by psychiatrists and
other professionals in diagnosing intellectual disability.
See DSM–5, at 37. Hall’s siblings testified that there was
something “very wrong” with him as a child. App. 466.
Hall was “slow with speech and . . . slow to learn.” Id., at
490. He “walked and talked long after his other brothers
and sisters,” id., at 461, and had “great difficulty forming
his words,” id., at 467.
Hall’s upbringing appeared to make his deficits in adap
tive functioning all the more severe. Hall was raised—in
the words of the sentencing judge—“under the most horri
ble family circumstances imaginable.” Id., at 53. Al
though “[t]eachers and siblings alike immediately recog
nized [Hall] to be significantly mentally retarded . . . [t]his
retardation did not garner any sympathy from his mother,
but rather caused much scorn to befall him.” Id., at 20.
Hall was “[c]onstantly beaten because he was ‘slow’ or
because he made simple mistakes.” Ibid. His mother
“would strap [Hall] to his bed at night, with a rope thrown
over a rafter. In the morning, she would awaken Hall by
hoisting him up and whipping him with a belt, rope, or
cord.” Ibid. Hall was beaten “ten or fifteen times a week
sometimes.” Id., at 477. His mother tied him “in a ‘croaker’
sack, swung it over a fire, and beat him,” “buried him
in the sand up to his neck to ‘strengthen his legs,’ ” and
4 HALL v. FLORIDA
Opinion of the Court
“held a gun on Hall . . . while she poked [him] with sticks.”
Hall v. Florida, 614 So. 2d 473, 480 (Fla. 1993) (Barkett,
C. J., dissenting).
The jury, notwithstanding this testimony, voted to
sentence Hall to death, and the sentencing court adopted
the jury’s recommendation. The court found that there
was “substantial evidence in the record” to support the
finding that “Freddie Lee Hall has been mentally retarded
his entire life.” App. 46. Yet the court also “suspect[ed]
that the defense experts [were] guilty of some professional
overkill,” because “[n]othing of which the experts testified
could explain how a psychotic, mentally-retarded, brain
damaged, learning-disabled, speech-impaired person could
formulate a plan whereby a car was stolen and a conven
ience store was robbed.” Id., at 42. The sentencing court
went on to state that, even assuming the expert testimony
to be accurate, “the learning disabilities, mental retarda
tion, and other mental difficulties . . . cannot be used to
justify, excuse or extenuate the moral culpability of the
defendant in this cause.” Id., at 56. Hall was again sen
tenced to death. The Florida Supreme Court affirmed,
concluding that “Hall’s argument that his mental retarda
tion provided a pretense of moral or legal justification”
had “no merit.” Hall, 614 So. 2d, at 478. Chief Justice
Barkett dissented, arguing that executing a person with
intellectual disability violated the State Constitution’s
prohibition on cruel and unusual punishment. Id., at 481–
482.
In 2002, this Court ruled that the Eighth Amendment
prohibited the execution of persons with intellectual disa
bility. Atkins v. Virginia, 536 U.S., at 321. On November
30, 2004, Hall filed a motion claiming that he had intellec
tual disability and could not be executed. More than five
years later, Florida held a hearing to consider Hall’s mo
tion. Hall again presented evidence of intellectual disabil
ity, including an IQ test score of 71. (Hall had received
Cite as: 572 U. S. ____ (2014) 5
Opinion of the Court
nine IQ evaluations in 40 years, with scores ranging from
60 to 80, Brief for Respondent 8, but the sentencing court
excluded the two scores below 70 for evidentiary reasons,
leaving only scores between 71 and 80. See App. 107; 109
So. 3d 704, 707 (Fla. 2012)). In response, Florida argued
that Hall could not be found intellectually disabled be
cause Florida law requires that, as a threshold matter,
Hall show an IQ test score of 70 or below before presenting
any additional evidence of his intellectual disability. App.
278–279 (“[U]nder the law, if an I. Q. is above 70, a person
is not mentally retarded”). The Florida Supreme Court
rejected Hall’s appeal and held that Florida’s 70-point
threshold was constitutional. 109 So. 3d, at 707–708.
This Court granted certiorari. 571 U. S. ___ (2013).
II
The Eighth Amendment provides that “[e]xcessive bail
shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.” The Four
teenth Amendment applies those restrictions to the
States. Roper v. Simmons, 543 U.S. 551, 560 (2005);
Furman v. Georgia, 408 U.S. 238, 239–240 (1972) (per
curiam). “By protecting even those convicted of heinous
crimes, the Eighth Amendment reaffirms the duty of the
government to respect the dignity of all persons.” Roper,
supra, at 560; see also Trop v. Dulles, 356 U.S. 86, 100
(1958) (plurality opinion) (“The basic concept underlying
the Eighth Amendment is nothing less than the dignity of
man”).
The Eighth Amendment “is not fastened to the obsolete
but may acquire meaning as public opinion becomes en
lightened by a humane justice.” Weems v. United States,
217 U.S. 349, 378 (1910). To enforce the Constitution’s
protection of human dignity, this Court looks to the “evolv
ing standards of decency that mark the progress of a
maturing society.” Trop, supra, at 101. The Eighth
6 HALL v. FLORIDA
Opinion of the Court
Amendment’s protection of dignity reflects the Nation we
have been, the Nation we are, and the Nation we aspire to
be. This is to affirm that the Nation’s constant, unyielding
purpose must be to transmit the Constitution so that its
precepts and guarantees retain their meaning and force.
The Eighth Amendment prohibits certain punishments
as a categorical matter. No natural-born citizen may be
denaturalized. Ibid. No person may be sentenced to death
for a crime committed as a juvenile. Roper, supra, at 578.
And, as relevant for this case, persons with intellectual
disability may not be executed. Atkins, 536 U.S., at 321.
No legitimate penological purpose is served by executing
a person with intellectual disability. Id., at 317, 320. To
do so contravenes the Eighth Amendment, for to impose
the harshest of punishments on an intellectually disabled
person violates his or her inherent dignity as a human
being. “[P]unishment is justified under one or more of
three principal rationales: rehabilitation, deterrence, and
retribution.” Kennedy v. Louisiana, 554 U.S. 407, 420
(2008). Rehabilitation, it is evident, is not an applicable
rationale for the death penalty. See Gregg v. Georgia, 428
U.S. 153, 183 (1976) (joint opinion of Stewart, Powell, and
Stevens, JJ.). As for deterrence, those with intellectual
disability are, by reason of their condition, likely unable to
make the calculated judgments that are the premise for
the deterrence rationale. They have a “diminished ability”
to “process information, to learn from experience, to en
gage in logical reasoning, or to control impulses . . .
[which] make[s] it less likely that they can process the
information of the possibility of execution as a penalty
and, as a result, control their conduct based upon that
information.” Atkins, 536 U.S., at 320. Retributive val
ues are also ill-served by executing those with intellectual
disability. The diminished capacity of the intellectually
disabled lessens moral culpability and hence the retribu
tive value of the punishment. See id., at 319 (“If the cul
Cite as: 572 U. S. ____ (2014) 7
Opinion of the Court
pability of the average murderer is insufficient to justify
the most extreme sanction available to the State, the
lesser culpability of the mentally retarded offender surely
does not merit that form of retribution”).
A further reason for not imposing the death penalty on a
person who is intellectually disabled is to protect the
integrity of the trial process. These persons face “a special
risk of wrongful execution” because they are more likely to
give false confessions, are often poor witnesses, and are
less able to give meaningful assistance to their counsel.
Id., at 320–321. This is not to say that under current law
persons with intellectual disability who “meet the law’s
requirements for criminal responsibility” may not be tried
and punished. Id., at 306. They may not, however, re
ceive the law’s most severe sentence. Id., at 318.
The question this case presents is how intellectual
disability must be defined in order to implement these
principles and the holding of Atkins. To determine if
Florida’s cutoff rule is valid, it is proper to consider the
psychiatric and professional studies that elaborate on the
purpose and meaning of IQ scores to determine how the
scores relate to the holding of Atkins. This in turn leads to
a better understanding of how the legislative policies of
various States, and the holdings of state courts, imple
ment the Atkins rule. That understanding informs our
determination whether there is a consensus that instructs
how to decide the specific issue presented here. And, in
conclusion, this Court must express its own independent
determination reached in light of the instruction found in
those sources and authorities.
III
A
That this Court, state courts, and state legislatures
consult and are informed by the work of medical experts in
determining intellectual disability is unsurprising. Those
8 HALL v. FLORIDA
Opinion of the Court
professionals use their learning and skills to study and
consider the consequences of the classification schemes
they devise in the diagnosis of persons with mental or
psychiatric disorders or disabilities. Society relies upon
medical and professional expertise to define and explain
how to diagnose the mental condition at issue. And the
definition of intellectual disability by skilled professionals
has implications far beyond the confines of the death
penalty: for it is relevant to education, access to social
programs, and medical treatment plans. In determining
who qualifies as intellectually disabled, it is proper to
consult the medical community’s opinions.
As the Court noted in Atkins, the medical community
defines intellectual disability according to three criteria:
significantly subaverage intellectual functioning, deficits
in adaptive functioning (the inability to learn basic skills
and adjust behavior to changing circumstances), and onset
of these deficits during the developmental period. See id.,
at 308, n. 3; DSM–5, at 33; Brief for American Psychologi
cal Association et al. as Amici Curiae 12–13 (hereinafter
APA Brief). This last factor, referred to as “age of onset,”
is not at issue.
The first and second criteria—deficits in intellectual
functioning and deficits in adaptive functioning—are
central here. In the context of a formal assessment, “[t]he
existence of concurrent deficits in intellectual and adap
tive functioning has long been the defining characteristic
of intellectual disability.” Id., at 11.
On its face, the Florida statute could be consistent with
the views of the medical community noted and discussed
in Atkins. Florida’s statute defines intellectual disability
for purposes of an Atkins proceeding as “significantly
subaverage general intellectual functioning existing con
currently with deficits in adaptive behavior and manifested
during the period from conception to age 18.” Fla. Stat.
§921.137(1) (2013). The statute further defines “signifi
Cite as: 572 U. S. ____ (2014) 9
Opinion of the Court
cantly subaverage general intellectual functioning” as
“performance that is two or more standard deviations from
the mean score on a standardized intelligence test.” Ibid.
The mean IQ test score is 100. The concept of standard
deviation describes how scores are dispersed in a popula
tion. Standard deviation is distinct from standard error of
measurement, a concept which describes the reliability of
a test and is discussed further below. The standard devia
tion on an IQ test is approximately 15 points, and so two
standard deviations is approximately 30 points. Thus a
test taker who performs “two or more standard deviations
from the mean” will score approximately 30 points below
the mean on an IQ test, i.e., a score of approximately 70
points.
On its face this statute could be interpreted consistently
with Atkins and with the conclusions this Court reaches in
the instant case. Nothing in the statute precludes Florida
from taking into account the IQ test’s standard error of
measurement, and as discussed below there is evidence
that Florida’s Legislature intended to include the meas
urement error in the calculation. But the Florida Su
preme Court has interpreted the provisions more nar
rowly. It has held that a person whose test score is above 70,
including a score within the margin for measurement
error, does not have an intellectual disability and is barred
from presenting other evidence that would show his facul
ties are limited. See Cherry v. State, 959 So. 2d 702, 712–
713 (Fla. 2007) (per curiam). That strict IQ test score
cutoff of 70 is the issue in this case.
Pursuant to this mandatory cutoff, sentencing courts
cannot consider even substantial and weighty evidence of
intellectual disability as measured and made manifest by
the defendant’s failure or inability to adapt to his social
and cultural environment, including medical histories,
behavioral records, school tests and reports, and testimony
regarding past behavior and family circumstances. This is
10 HALL v. FLORIDA
Opinion of the Court
so even though the medical community accepts that all of
this evidence can be probative of intellectual disability,
including for individuals who have an IQ test score above
70. See APA Brief 15–16 (“[T]he relevant clinical authori
ties all agree that an individual with an IQ score above 70
may properly be diagnosed with intellectual disability if
significant limitations in adaptive functioning also exist”);
DSM–5, at 37 (“[A] person with an IQ score above 70 may
have such severe adaptive behavior problems . . . that the
person’s actual functioning is comparable to that of indi
viduals with a lower IQ score”).
Florida’s rule disregards established medical practice in
two interrelated ways. It takes an IQ score as final and
conclusive evidence of a defendant’s intellectual capacity,
when experts in the field would consider other evidence.
It also relies on a purportedly scientific measurement of
the defendant’s abilities, his IQ score, while refusing to
recognize that the score is, on its own terms, imprecise.
The professionals who design, administer, and interpret
IQ tests have agreed, for years now, that IQ test scores
should be read not as a single fixed number but as a
range. See D. Wechsler, The Measurement of Adult Intel
ligence 133 (3d ed. 1944) (reporting the range of error on
an early IQ test). Each IQ test has a “standard error of
measurement,” ibid., often referred to by the abbreviation
“SEM.” A test’s SEM is a statistical fact, a reflection of
the inherent imprecision of the test itself. See R. Furr &
V. Bacharach, Psychometrics 118 (2d ed. 2014) (identify
ing the SEM as “one of the most important concepts in
measurement theory”). An individual’s IQ test score on
any given exam may fluctuate for a variety of reasons.
These include the test-taker’s health; practice from earlier
tests; the environment or location of the test; the examin
er’s demeanor; the subjective judgment involved in scoring
certain questions on the exam; and simple lucky guessing.
See American Association on Intellectual and Develop
Cite as: 572 U. S. ____ (2014) 11
Opinion of the Court
mental Disabilities, R. Schalock et al., User’s Guide To
Accompany the 11th Edition of Intellectual Disability:
Definition, Classification, and Systems of Supports 22
(2012) (hereinafter AAIDD Manual); A. Kaufman, IQ
Testing 101, pp. 138–139 (2009).
The SEM reflects the reality that an individual’s intel
lectual functioning cannot be reduced to a single numeri
cal score. For purposes of most IQ tests, the SEM means
that an individual’s score is best understood as a range of
scores on either side of the recorded score. The SEM
allows clinicians to calculate a range within which one
may say an individual’s true IQ score lies. See APA Brief
23 (“SEM is a unit of measurement: 1 SEM equates to a
confidence of 68% that the measured score falls within a
given score range, while 2 SEM provides a 95% confidence
level that the measured score is within a broader range”).
A score of 71, for instance, is generally considered to re
flect a range between 66 and 76 with 95% confidence and a
range of 68.5 and 73.5 with a 68% confidence. See DSM–
5, at 37 (“Individuals with intellectual disability have
scores of approximately two standard deviations or more
below the population mean, including a margin for meas
urement error (generally +5 points). . . . [T]his involves a
score of 65–75 (70 ± 5)”); APA Brief 23 (“For example, the
average SEM for the WAIS-IV is 2.16 IQ test points and
the average SEM for the Stanford-Binet 5 is 2.30 IQ test
points (test manuals report SEMs by different age group
ings; these scores are similar, but not identical, often due
to sampling error)”). Even when a person has taken mul
tiple tests, each separate score must be assessed using the
SEM, and the analysis of multiple IQ scores jointly is a
complicated endeavor. See Schneider, Principles of As
sessment of Aptitude and Achievement, in The Oxford
Handbook of Child Psychological Assessment 286, 289–
291, 318 (D. Saklofske, C. Reynolds, V. Schwean, eds.
2013). In addition, because the test itself may be flawed,
12 HALL v. FLORIDA
Opinion of the Court
or administered in a consistently flawed manner, multiple
examinations may result in repeated similar scores, so
that even a consistent score is not conclusive evidence of
intellectual functioning.
Despite these professional explanations, Florida law
used the test score as a fixed number, thus barring further
consideration of other evidence bearing on the question of
intellectual disability. For professionals to diagnose—and
for the law then to determine—whether an intellectual
disability exists once the SEM applies and the individual’s
IQ score is 75 or below the inquiry would consider factors
indicating whether the person had deficits in adaptive
functioning. These include evidence of past performance,
environment, and upbringing.
B
A significant majority of States implement the protec
tions of Atkins by taking the SEM into account, thus
acknowledging the error inherent in using a test score
without necessary adjustment. This calculation provides
“objective indicia of society’s standards” in the context of
the Eighth Amendment. Roper, 543 U.S., at 563. Only
the Kentucky and Virginia Legislatures have adopted a
fixed score cutoff identical to Florida’s. Ky. Rev. Stat.
Ann. §532.130(2) (Lexis Supp. 2013); Bowling v. Com-
monwealth, 163 S.W.3d 361, 375 (Ky. 2005); Va. Code
Ann. §19.2–264.3:1.1 (Lexis Supp. 2013); Johnson v.
Commonwealth, 267 Va. 53, 75, 591 S.E.2d 47, 59 (2004),
vacated and remanded on other grounds, 544 U.S. 901
(2005). Alabama also may use a strict IQ score cutoff at
70, although not as a result of legislative action. See
Smith v. State, 71 So. 3d 12, 20 (Ala. Crim. App. 2008)
(“The Alabama Supreme Court . . . did not adopt any
‘margin of error’ when examining a defendant’s IQ score”).
Petitioner does not question the rule in States which use a
bright-line cutoff at 75 or greater, Tr. of Oral Arg. 9, and
Cite as: 572 U. S. ____ (2014) 13
Opinion of the Court
so they are not included alongside Florida in this analysis.
In addition to these States, Arizona, Delaware, Kansas,
North Carolina, and Washington have statutes which
could be interpreted to provide a bright-line cutoff leading
to the same result that Florida mandates in its cases. See
Ariz. Rev. Stat. Ann. §13–753(F) (West 2013); Del. Code
Ann. Tit. 11, §4209(d)(3) (2012 Supp.); Kan. Stat. Ann.
§76–12b01 (2013 Supp.); N. C. Gen. Stat. Ann. §15A–2005
(Lexis 2013); Wash. Rev. Code §10.95.030(2)(c) (2012).
That these state laws might be interpreted to require a
bright-line cutoff does not mean that they will be so inter
preted, however. See, e.g., State v. Vela, 279 Neb. 94, 126,
137, 777 N.W.2d 266, 292, 299 (2010) (Although Nebras
ka’s statute specifies “[a]n intelligence quotient of seventy
or below on a reliably administered intelligence quotient
test,” “[t]he district court found that [the defendant’s]
score of 75 on the [IQ test], considered in light of the
standard error of measurement, could be considered as
subaverage general intellectual functioning for purposes of
diagnosing mental retardation”).
Arizona’s statute appears to set a broad statutory cutoff
at 70, Ariz. Rev. Stat. Ann. §13–753(F) (West 2013), but
another provision instructs courts to “take into account
the margin of error for a test administered.” Id. at §14
753(K)(5). How courts are meant to interpret the statute
in a situation like Hall’s is not altogether clear. The prin
cipal Arizona case on the matter, State v. Roque, 141 P.3d
368, (Ariz 2006), states that “the statute accounts for
margin of error by requiring multiple tests,” and that “if
the defendant achieves a full-scale score of 70 or below on
any one of the tests, then the court proceeds to a hearing.”
Id. at 403. But that case also notes that the defendant
had an IQ score of 80, well outside the margin of error,
and that all but one of the sub-parts of the IQ test were
“above 75.” Id.
Kansas has not had an execution in almost five decades,
14 HALL v. FLORIDA
Opinion of the Court
and so its laws and jurisprudence on this issue are unlikely
to receive attention on this specific question. See Atkins,
536 U.S., at 316 (“[E]ven in those States that allow the
execution of mentally retarded offenders, the practice
is uncommon. Some States . . . continue to authorize
executions, but none have been carried out in decades.
Thus there is little need to pursue legislation barring the
execution of the mentally retarded in those States”).
Delaware has executed three individuals in the past dec
ade, while Washington has executed one person, and has
recently suspended its death penalty. None of the four
individuals executed recently in those States appears to
have brought a claim similar to that advanced here.
Thus, at most nine States mandate a strict IQ score
cutoff at 70. Of these, four States (Delaware, Kansas,
North Carolina, and Washington) appear not to have
considered the issue in their courts. On the other side of
the ledger stand the 18 States that have abolished the
death penalty, either in full or for new offenses, and Ore
gon, which has suspended the death penalty and executed
only two individuals in the past 40 years. See Roper, 543
U.S., at 574 (“[The] Court should have considered those
States that had abandoned the death penalty altogether as
part of the consensus against the juvenile death penalty”).
In those States, of course, a person in Hall’s position
could not be executed even without a finding of intellectual
disability. Thus in 41 States an individual in Hall’s
position—an individual with an IQ score of 71—would not
be deemed automatically eligible for the death penalty.
These aggregate numbers are not the only considera
tions bearing on a determination of consensus. Consistency
of the direction of change is also relevant. See id., at
565–566 (quoting Atkins, supra, at 315). Since Atkins,
many States have passed legislation to comply with the
constitutional requirement that persons with intellectual
disability not be executed. Two of these States, Virginia
Cite as: 572 U. S. ____ (2014) 15
Opinion of the Court
and Delaware, appear to set a strict cutoff at 70, although
as discussed, Delaware’s courts have yet to interpret the
law. In contrast, at least 11 States have either abolished
the death penalty or passed legislation allowing defend
ants to present additional evidence of intellectual disabil
ity when their IQ test score is above 70.
Since Atkins, five States have abolished the death pen
alty through legislation. See 2012 Conn. Pub. Acts no. 12–
5; Ill. Comp. Stat. ch. 725, §119–1 (West 2012); Md. Cor
rec. Servs. Code Ann. §3–901 et seq. (Lexis 2008); N. J.
Stat. Ann. §2C:11–3(b)(1) (West Supp. 2013); 2009 N. M.
Laws ch. 11, §§5–7. In addition, the New York Court of
Appeals invalidated New York’s death penalty under the
State Constitution in 2004, see People v. LeValle, 3 N.Y.
3d 88, 817 N.E.2d 341 (2004), and legislation has not
been passed to reinstate it. And when it did impose the
death penalty, New York did not employ an IQ cutoff in
determining intellectual disability. N. Y. Crim. Proc. Law
Ann. §400.27(12)(e) (West 2005).
In addition to these States, at least five others have
passed legislation allowing a defendant to present addi
tional evidence of intellectual disability even when an IQ
test score is above 70. See Cal. Penal Code Ann. §1376
(West Supp. 2014) (no IQ cutoff); Idaho Code §19–2515A
(Lexis Supp. 2013) (“seventy (70) or below”); Pizzutto v.
State, 146 Idaho 720, 729, 202 P.3d 642, 651 (2008) (“The
alleged error in IQ testing is plus or minus five points.
The district court was entitled to draw reasonable infer
ences from the undisputed facts”); La. Code Crim. Proc.
Ann., Art. 905.5.1 (West Supp. 2014) (no IQ cutoff); Nev.
Rev. Stat. §174.098.7 (2013) (no IQ cutoff); Utah Code Ann
§77–15a–102 (Lexis 2012) (no IQ cutoff). The U. S. Code
likewise does not set a strict IQ cutoff. See 18 U.S. C.
§3596(c). And no State that previously allowed defendants
with an IQ score over 70 to present additional evidence of
intellectual disability has modified its law to create a
16 HALL v. FLORIDA
Opinion of the Court
strict cutoff at 70. Cf. Roper, supra, at 566 (“Since Stan-
ford v. Kentucky, 492 U.S. 361 (1989), no State that previ
ously prohibited capital punishment for juveniles has
reinstated it”).
In summary, every state legislature to have considered
the issue after Atkins—save Virginia’s—and whose law
has been interpreted by its courts has taken a position
contrary to that of Florida. Indeed, the Florida Legisla
ture, which passed the relevant legislation prior to Atkins,
might well have believed that its law would not create
a fixed cutoff at 70. The staff analysis accompanying
the 2001 bill states that it “does not contain a set IQ
level . . . . Two standard deviations from these tests is ap
proximately a 70 IQ, although it can be extended up to
75.” Fla. Senate Staff Analysis and Economic Impact
Statement, CS/SB 238, p. 11 (Feb. 14, 2001). But the
Florida Supreme Court interpreted the law to require a
bright-line cutoff at 70, see Cherry, 959 So. 2d, at 712–713,
and the Court is bound by that interpretation.
The rejection of the strict 70 cutoff in the vast majority
of States and the “consistency in the trend,” Roper, supra,
at 567, toward recognizing the SEM provide strong evi
dence of consensus that our society does not regard this
strict cutoff as proper or humane.
C
Atkins itself acknowledges the inherent error in IQ
testing. It is true that Atkins “did not provide definitive
procedural or substantive guides for determining when a
person who claims mental retardation” falls within the
protection of the Eighth Amendment. Bobby v. Bies, 556
U.S. 825, 831 (2009). In Atkins, the Court stated:
“Not all people who claim to be mentally retarded will
be so impaired as to fall within the range of mentally
retarded offenders about whom there is a national
consensus. As was our approach in Ford v. Wain-
Cite as: 572 U. S. ____ (2014) 17
Opinion of the Court
wright with regard to insanity, ‘we leave to the
State[s] the task of developing appropriate ways to en
force the constitutional restriction upon [their] execu
tion of sentences.’ ” 536 U.S., at 317 (quoting Ford v.
Wainwright, 477 U.S. 399, 416–417 (1986); citation
omitted).
As discussed above, the States play a critical role in ad
vancing protections and providing the Court with infor
mation that contributes to an understanding of how intel
lectual disability should be measured and assessed. But
Atkins did not give the States unfettered discretion to
define the full scope of the constitutional protection.
The Atkins Court twice cited definitions of intellectual
disability which, by their express terms, rejected a strict
IQ test score cutoff at 70. Atkins first cited the definition
provided in the DSM–IV: “ ‘Mild’ mental retardation is
typically used to describe people with an IQ level of 50–55
to approximately 70.” 536 U.S., at 308, n. 3 (citing Diag
nostic and Statistical Manual of Mental Disorders 41 (4th
ed. 2000)). The Court later noted that “ ‘an IQ between 70
and 75 or lower . . . is typically considered the cutoff IQ
score for the intellectual function prong of the mental
retardation definition.’ ” 536 U.S., at 309, n. 5. Further
more, immediately after the Court declared that it left “ ‘to
the States the task of developing appropriate ways to
enforce the constitutional restriction,’ ” id., at 317, the
Court stated in an accompanying footnote that “[t]he
[state] statutory definitions of mental retardation are not
identical, but generally conform to the clinical definitions,”
ibid.
Thus Atkins itself not only cited clinical definitions for
intellectual disability but also noted that the States’
standards, on which the Court based its own conclusion,
conformed to those definitions. In the words of Atkins,
those persons who meet the “clinical definitions” of intel
18 HALL v. FLORIDA
Opinion of the Court
lectual disability “by definition . . . have diminished capac
ities to understand and process information, to communi
cate, to abstract from mistakes and learn from experience,
to engage in logical reasoning, to control impulses, and to
understand the reactions of others.” Id., at 318. Thus,
they bear “diminish[ed] . . . personal culpability.” Ibid.
The clinical definitions of intellectual disability, which
take into account that IQ scores represent a range, not a
fixed number, were a fundamental premise of Atkins. And
those clinical definitions have long included the SEM. See
Diagnostic and Statistical Manual of Mental Disorders 28
(rev. 3d ed. 1987) (“Since any measurement is fallible, an
IQ score is generally thought to involve an error of meas
urement of approximately five points; hence, an IQ of 70 is
considered to represent a band or zone of 65 to 75. Treat
ing the IQ with some flexibility permits inclusion in the
Mental Retardation category of people with IQs somewhat
higher than 70 who exhibit significant deficits in adaptive
behavior”).
Respondent argues that the current Florida law was
favorably cited by the Atkins Court. See Brief for Re
spondent 18 (“As evidence of the national consensus, the
Court specifically cited Florida’s statute at issue here,
which has not substantively changed”). While Atkins did
refer to Florida’s law in a citation listing States which had
outlawed the execution of the intellectually disabled, 536
U.S., at 315, that fleeting mention did not signal the
Court’s approval of Florida’s current understanding of the
law. As discussed above, when Atkins was decided the
Florida Supreme Court had not yet interpreted the law to
require a strict IQ cutoff at 70. That new interpretation
runs counter to the clinical definition cited throughout
Atkins and to Florida’s own legislative report indicating
this kind of cutoff need not be used.
Respondent’s argument also conflicts with the logic of
Atkins and the Eighth Amendment. If the States were to
Cite as: 572 U. S. ____ (2014) 19
Opinion of the Court
have complete autonomy to define intellectual disability as
they wished, the Court’s decision in Atkins could become a
nullity, and the Eighth Amendment’s protection of human
dignity would not become a reality. This Court thus reads
Atkins to provide substantial guidance on the definition of
intellectual disability.
D
The actions of the States and the precedents of this
Court “give us essential instruction,” Roper, 543 U.S., at
564, but the inquiry must go further. “[T]he Constitution
contemplates that in the end our own judgment will be
brought to bear on the question of the acceptability of the
death penalty under the Eighth Amendment.” Coker v.
Georgia, 433 U.S. 584, 597 (1977) (plurality opinion).
That exercise of independent judgment is the Court’s
judicial duty. See Roper, supra, at 574 (“[T]o the extent
Stanford was based on a rejection of the idea that this
Court is required to bring its independent judgment to
bear on the proportionality of the death penalty for a
particular class of crimes or offenders, it suffices to note
that this rejection was inconsistent with prior Eighth
Amendment decisions” (citation omitted).
In this Court’s independent judgment, the Florida stat
ute, as interpreted by its courts, is unconstitutional.
In addition to the views of the States and the Court’s
precedent, this determination is informed by the views of
medical experts. These views do not dictate the Court’s
decision, yet the Court does not disregard these informed
assessments. See Kansas v. Crane, 534 U.S. 407, 413
(2002) (“[T]he science of psychiatry . . . informs but does
not control ultimate legal determinations . . .”). It is the
Court’s duty to interpret the Constitution, but it need not
do so in isolation. The legal determination of intellectual
disability is distinct from a medical diagnosis, but it is
informed by the medical community’s diagnostic frame
20 HALL v. FLORIDA
Opinion of the Court
work. Atkins itself points to the diagnostic criteria em
ployed by psychiatric professionals. And the professional
community’s teachings are of particular help in this case,
where no alternative definition of intellectual disability is
presented and where this Court and the States have
placed substantial reliance on the expertise of the medical
profession.
By failing to take into account the SEM and setting a
strict cutoff at 70, Florida “goes against the unanimous
professional consensus.” APA Brief 15. Neither Florida
nor its amici point to a single medical professional who
supports this cutoff. The DSM–5 repudiates it: “IQ test
scores are approximations of conceptual functioning but
may be insufficient to assess reasoning in real-life situa
tions and mastery of practical tasks.” DSM–5, at 37. This
statement well captures the Court’s independent assess
ment that an individual with an IQ test score “between 70
and 75 or lower,” Atkins, supra, at 309, n. 5, may show
intellectual disability by presenting additional evidence
regarding difficulties in adaptive functioning.
The flaws in Florida’s law are the result of the inherent
error in IQ tests themselves. An IQ score is an approxi
mation, not a final and infallible assessment of intellectual
functioning. See APA Brief 24 (“[I]t is standard pyscho
metric practice to report the ‘estimates of relevant reliabil
ities and standard errors of measurement’ when reporting
a test score”); ibid. (the margin of error is “inherent to the
accuracy of IQ scores”); Furr, Psychometrics, at 119
(“[T]he standard error of measurement is an important
psychometric value with implications for applied meas
urement”). SEM is not a concept peculiar to the psychiat
ric profession and IQ tests. It is a measure that is recog
nized and relied upon by those who create and devise tests
of all sorts. Id., at 118 (identifying the SEM as “one of the
most important concepts in measurement theory”).
This awareness of the IQ test’s limits is of particular
Cite as: 572 U. S. ____ (2014) 21
Opinion of the Court
importance when conducting the conjunctive assessment
necessary to assess an individual’s intellectual ability.
See American Association on Intellectual and Develop
mental Disabilities, Intellectual Disability: Definition,
Classification, and Systems of Supports 40 (11th ed. 2010)
(“It must be stressed that the diagnosis of [intellectual
disability] is intended to reflect a clinical judgment rather
than an actuarial determination”).
Intellectual disability is a condition, not a number. See
DSM–5, at 37. Courts must recognize, as does the medical
community, that the IQ test is imprecise. This is not to
say that an IQ test score is unhelpful. It is of considerable
significance, as the medical community recognizes. But in
using these scores to assess a defendant’s eligibility for the
death penalty, a State must afford these test scores the
same studied skepticism that those who design and use
the tests do, and understand that an IQ test score repre
sents a range rather than a fixed number. A State that
ignores the inherent imprecision of these tests risks exe
cuting a person who suffers from intellectual disability.
See APA Brief 17 (“Under the universally accepted clinical
standards for diagnosing intellectual disability, the court’s
determination that Mr. Hall is not intellectually disabled
cannot be considered valid”).
This Court agrees with the medical experts that when a
defendant’s IQ test score falls within the test’s acknowl
edged and inherent margin of error, the defendant must
be able to present additional evidence of intellectual disa
bility, including testimony regarding adaptive deficits.
It is not sound to view a single factor as dispositive of a
conjunctive and interrelated assessment. See DSM–5, at
37 (“[A] person with an IQ score above 70 may have such
severe adaptive behavior problems . . . that the person’s
actual functioning is comparable to that of individuals
with a lower IQ score”). The Florida statute, as interpreted
by its courts, misuses IQ score on its own terms; and
22 HALL v. FLORIDA
Opinion of the Court
this, in turn, bars consideration of evidence that must be
considered in determining whether a defendant in a capi
tal case has intellectual disability. Florida’s rule is invalid
under the Constitution’s Cruel and Unusual Punishments
Clause.
E
Florida seeks to execute a man because he scored a 71
instead of 70 on an IQ test. Florida is one of just a few
States to have this rigid rule. Florida’s rule misconstrues
the Court’s statements in Atkins that intellectually dis
ability is characterized by an IQ of “approximately 70.” 536
U.S., at 308, n. 3. Florida’s rule is in direct opposition to
the views of those who design, administer, and interpret
the IQ test. By failing to take into account the standard
error of measurement, Florida’s law not only contradicts
the test’s own design but also bars an essential part of a
sentencing court’s inquiry into adaptive functioning.
Freddie Lee Hall may or may not be intellectually dis
abled, but the law requires that he have the opportunity to
present evidence of his intellectual disability, including
deficits in adaptive functioning over his lifetime.
The death penalty is the gravest sentence our society
may impose. Persons facing that most severe sanction
must have a fair opportunity to show that the Constitution
prohibits their execution. Florida’s law contravenes our
Nation’s commitment to dignity and its duty to teach
human decency as the mark of a civilized world. The
States are laboratories for experimentation, but those
experiments may not deny the basic dignity the Constitu
tion protects.
The judgment of the Florida Supreme Court is reversed,
and the case is remanded for further proceedings not
inconsistent with this opinion.
So ordered.
Cite as: 572 U. S. ____ (2014) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–10882
_________________
FREDDIE LEE HALL, PETITIONER v. | This Court has held that the Eighth and Fourteenth Amendments to the Constitution forbid the execution of persons with intellectual disability. Florida law defines intellectual disability to require an IQ test score of 70 or less. If, from test scores, a prisoner is deemed to have an IQ above 70, all further exploration of intellectual disability is fore closed. This rigid rule, the Court now holds, creates an unacceptable risk that persons with intellectual disability will be executed, and thus is un I On February 21, 1978, Freddie Lee petitioner here, and his accomplice, Mark Ruffin, kidnaped, beat, raped, and murdered Karol Hurst, a pregnant, 21-year-old new lywed. Afterward, and Ruffin drove to a convenience store they planned to rob. In the parking lot of the store, they killed Lonnie Coburn, a sheriff’s deputy who at tempted to apprehend them. received the death penalty for both murders, although his sentence for the Coburn murder was later reduced on account of insuffi cient evidence of premeditation. 403 2 HALL v. FLORIDA Opinion of the Court So. 2d 1319, 1 (Fla. 1981) (per curiam). argues that he cannot be executed because of his intellectual disability. Previous opinions of this Court have employed the term “mental retardation.” This opin ion uses the term “intellectual disability” to describe the identical phenomenon. See Rosa’s Law, (changing entries in the U. S. Code from “mental retarda tion” to “intellectual disability”); Schalock et. al, The Re naming of Mental Retardation: Understanding the Change to the Term Intellectual Disability, 45 Intellectual & De velopmental Disabilities 116 (07). This change in ter minology is approved and used in the latest edition of the Diagnostic and Statistical Manual of Mental Disorders, one of the basic texts used by psychiatrists and other experts; the manual is often referred to by its initials “DSM,” followed by its edition number, e.g., “DSM–5.” See American Psychiatric Association, Diagnostic and Statisti cal Manual of Mental Disorders 33 (5th ed. 13). When was first sentenced, this Court had not yet ruled that the Eighth Amendment prohibits States from imposing the death penalty on persons with intellectual disability. See And at the time, Florida law did not consider intellectual disability as a statutory mitigating factor. After this Court held that capital defendants must be permitted to present nonstatutory mitigating evidence in death penalty proceedings, Hitchcock v. Dugger, 481 U.S. 393, 398–399 (1987), was resentenced. then presented substantial and unchallenged evidence of intel lectual disability. School records indicated that his teach ers identified him on numerous occasions as “[m]entally retarded.” App. 482–483. had been prosecuted for a different, earlier crime. His lawyer in that matter later testified that the lawyer “[c]ouldn’t really understand anything [] said.” And, with respect to the murder trial given him in this case, ’s counsel recalled Cite as: 572 U. S. (14) 3 Opinion of the Court that could not assist in his own defense because he had “ ‘a mental level much lower than his age,’ ” at best comparable to the lawyer’s 4-year-old daughter. Brief for Petitioner 11. A number of medical clinicians testified that, in their professional opinion, was “significantly retarded,” App. 507; was “mentally retarded,” ; and had levels of understanding “typically [seen] with toddlers,” As explained below in more detail, an individual’s abil ity or lack of ability to adapt or adjust to the requirements of daily life, and success or lack of success in doing so, is central to the framework followed by psychiatrists and other professionals in diagnosing intellectual disability. See DSM–5, at 37. ’s siblings testified that there was something “very wrong” with him as a child. App. 466. was “slow with speech and slow to learn.” at 490. He “walked and talked long after his other brothers and sisters,” and had “great difficulty forming his words,” ’s upbringing appeared to make his deficits in adap tive functioning all the more severe. was raised—in the words of the sentencing judge—“under the most horri ble family circumstances imaginable.” Al though “[t]eachers and siblings alike immediately recog nized [] to be significantly mentally retarded [t]his retardation did not garner any sympathy from his mother, but rather caused much scorn to befall him.” was “[c]onstantly beaten because he was ‘slow’ or because he made simple mistakes.” His mother “would strap [] to his bed at night, with a rope thrown over a rafter. In the morning, she would awaken by hoisting him up and whipping him with a belt, rope, or cord.” was beaten “ten or fifteen times a week sometimes.” His mother tied him “in a ‘croaker’ sack, swung it over a fire, and beat him,” “buried him in the sand up to his neck to ‘strengthen his legs,’ ” and 4 HALL v. FLORIDA Opinion of the Court “held a gun on while she poked [him] with sticks.” (Barkett, C. J., dissenting). The jury, notwithstanding this testimony, voted to sentence to death, and the sentencing court adopted the jury’s recommendation. The court found that there was “substantial evidence in the record” to support the finding that “Freddie Lee has been mentally retarded his entire life.” App. 46. Yet the court also “suspect[ed] that the defense experts [were] guilty of some professional overkill,” because “[n]othing of which the experts testified could explain how a psychotic, mentally-retarded, brain damaged, learning-disabled, speech-impaired person could formulate a plan whereby a car was stolen and a conven ience store was robbed.” The sentencing court went on to state that, even assuming the expert testimony to be accurate, “the learning disabilities, mental retarda tion, and other mental difficulties cannot be used to justify, excuse or extenuate the moral culpability of the defendant in this cause.” was again sen tenced to death. The Florida Supreme Court affirmed, concluding that “’s argument that his mental retarda tion provided a pretense of moral or legal justification” had “no merit.” Chief Justice Barkett dissented, arguing that executing a person with intellectual disability violated the State Constitution’s prohibition on cruel and unusual punishment. at 481– 482. In 02, this Court ruled that the Eighth Amendment prohibited the execution of persons with intellectual disa bility. v. 536 U.S., at On November 30, filed a motion claiming that he had intellec tual disability and could not be executed. More than five years later, Florida held a hearing to consider ’s mo tion. again presented evidence of intellectual disabil ity, including an IQ test score of 71. ( had received Cite as: 572 U. S. (14) 5 Opinion of the Court nine IQ evaluations in 40 years, with scores ranging from 60 to 80, Brief for Respondent 8, but the sentencing court excluded the two scores below 70 for evidentiary reasons, leaving only scores between 71 and 80. See App. 107; 109 So. 3d 704, 707 (Fla. 12)). In response, Florida argued that could not be found intellectually disabled be cause Florida law requires that, as a threshold matter, show an IQ test score of 70 or below before presenting any additional evidence of his intellectual disability. App. 278–279 (“[U]nder the law, if an I. Q. is above 70, a person is not mentally retarded”). The Florida Supreme Court rejected ’s appeal and held that Florida’s 70-point threshold was –708. This Court granted certiorari. 571 U. S. (13). II The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Four teenth Amendment applies those restrictions to the States. ; (per curiam). “By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.” 0; see also (1958) (“The basic concept underlying the Eighth Amendment is nothing less than the dignity of man”). The Eighth Amendment “is not fastened to the obsolete but may acquire meaning as public opinion becomes en lightened by a humane justice.” To enforce the Constitution’s protection of human dignity, this Court looks to the “evolv ing standards of decency that mark the progress of a maturing society.” The Eighth 6 HALL v. FLORIDA Opinion of the Court Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be. This is to affirm that the Nation’s constant, unyielding purpose must be to transmit the Constitution so that its precepts and guarantees retain their meaning and force. The Eighth Amendment prohibits certain punishments as a categorical matter. No natural-born citizen may be denaturalized. No person may be sentenced to death for a crime committed as a juvenile. And, as relevant for this case, persons with intellectual disability may not be executed. 536 U.S., at No legitimate penological purpose is served by executing a person with intellectual disability. To do so contravenes the Eighth Amendment, for to impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being. “[P]unishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution.” Rehabilitation, it is evident, is not an applicable rationale for the death penalty. See Gregg v. Georgia, 428 U.S. 153, 183 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). As for deterrence, those with intellectual disability are, by reason of their condition, likely unable to make the calculated judgments that are the premise for the deterrence rationale. They have a “diminished ability” to “process information, to learn from experience, to en gage in logical reasoning, or to control impulses [which] make[s] it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information.” Retributive val ues are also ill-served by executing those with intellectual disability. The diminished capacity of the intellectually disabled lessens moral culpability and hence the retribu tive value of the punishment. See (“If the cul Cite as: 572 U. S. (14) 7 Opinion of the Court pability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution”). A further reason for not imposing the death penalty on a person who is intellectually disabled is to protect the integrity of the trial process. These persons face “a special risk of wrongful execution” because they are more likely to give false confessions, are often poor witnesses, and are less able to give meaningful assistance to their counsel. at 3–. This is not to say that under current law persons with intellectual disability who “meet the law’s requirements for criminal responsibility” may not be tried and punished. They may not, however, re ceive the law’s most severe sentence. The question this case presents is how intellectual disability must be defined in order to implement these principles and the holding of To determine if Florida’s cutoff rule is valid, it is proper to consider the psychiatric and professional studies that elaborate on the purpose and meaning of IQ scores to determine how the scores relate to the holding of This in turn leads to a better understanding of how the legislative policies of various States, and the holdings of state courts, imple ment the rule. That understanding informs our determination whether there is a consensus that instructs how to decide the specific issue presented here. And, in conclusion, this Court must express its own independent determination reached in light of the instruction found in those sources and authorities. III A That this Court, state courts, and state legislatures consult and are informed by the work of medical experts in determining intellectual disability is unsurprising. Those 8 HALL v. FLORIDA Opinion of the Court professionals use their learning and skills to study and consider the consequences of the classification schemes they devise in the diagnosis of persons with mental or psychiatric disorders or disabilities. Society relies upon medical and professional expertise to define and explain how to diagnose the mental condition at issue. And the definition of intellectual disability by skilled professionals has implications far beyond the confines of the death penalty: for it is relevant to education, access to social programs, and medical treatment plans. In determining who qualifies as intellectually disabled, it is proper to consult the medical community’s opinions. As the Court noted in the medical community defines intellectual disability according to three criteria: significantly subaverage intellectual functioning, deficits in adaptive functioning (the inability to learn basic skills and adjust behavior to changing circumstances), and onset of these deficits during the developmental period. See at 308, n. 3; DSM–5, at 33; Brief for American Psychologi cal Association et al. as Amici Curiae 12–13 (hereinafter APA Brief). This last factor, referred to as “age of onset,” is not at issue. The first and second criteria—deficits in intellectual functioning and deficits in adaptive functioning—are central here. In the context of a formal assessment, “[t]he existence of concurrent deficits in intellectual and adap tive functioning has long been the defining characteristic of intellectual disability.” On its face, the Florida statute could be consistent with the views of the medical community noted and discussed in Florida’s statute defines intellectual disability for purposes of an proceeding as “significantly subaverage general intellectual functioning existing con currently with deficits in adaptive behavior and manifested during the period from conception to age 18.” Fla. Stat. (13). The statute further defines “signifi Cite as: 572 U. S. (14) 9 Opinion of the Court cantly subaverage general intellectual functioning” as “performance that is two or more standard deviations from the mean score on a standardized intelligence test.” The mean IQ test score is The concept of standard deviation describes how scores are dispersed in a popula tion. Standard deviation is distinct from standard error of measurement, a concept which describes the reliability of a test and is discussed further below. The standard devia tion on an IQ test is approximately 15 points, and so two standard deviations is approximately 30 points. Thus a test taker who performs “two or more standard deviations from the mean” will score approximately 30 points below the mean on an IQ test, i.e., a score of approximately 70 points. On its face this statute could be interpreted consistently with and with the conclusions this Court reaches in the instant case. Nothing in the statute precludes Florida from taking into account the IQ test’s standard error of measurement, and as discussed below there is evidence that Florida’s Legislature intended to include the meas urement error in the calculation. But the Florida Su preme Court has interpreted the provisions more nar rowly. It has held that a person whose test score is above 70, including a score within the margin for measurement error, does not have an intellectual disability and is barred from presenting other evidence that would show his facul ties are limited. See 712– 713 (Fla. 07) (per curiam). That strict IQ test score cutoff of 70 is the issue in this case. Pursuant to this mandatory cutoff, sentencing courts cannot consider even substantial and weighty evidence of intellectual disability as measured and made manifest by the defendant’s failure or inability to adapt to his social and cultural environment, including medical histories, behavioral records, school tests and reports, and testimony regarding past behavior and family circumstances. This is 10 HALL v. FLORIDA Opinion of the Court so even though the medical community accepts that all of this evidence can be probative of intellectual disability, including for individuals who have an IQ test score above 70. See APA Brief 15–16 (“[T]he relevant clinical authori ties all agree that an individual with an IQ score above 70 may properly be diagnosed with intellectual disability if significant limitations in adaptive functioning also exist”); DSM–5, at 37 (“[A] person with an IQ score above 70 may have such severe adaptive behavior problems that the person’s actual functioning is comparable to that of indi viduals with a lower IQ score”). Florida’s rule disregards established medical practice in two interrelated ways. It takes an IQ score as final and conclusive evidence of a defendant’s intellectual capacity, when experts in the field would consider other evidence. It also relies on a purportedly scientific measurement of the defendant’s abilities, his IQ score, while refusing to recognize that the score is, on its own terms, imprecise. The professionals who design, administer, and interpret IQ tests have agreed, for years now, that IQ test scores should be read not as a single fixed number but as a range. See D. Wechsler, The Measurement of Adult Intel ligence 133 (3d ed. 1944) (reporting the range of error on an early IQ test). Each IQ test has a “standard error of measurement,” ib often referred to by the abbreviation “SEM.” A test’s SEM is a statistical fact, a reflection of the inherent imprecision of the test itself. See R. Furr & V. Bacharach, Psychometrics 118 (2d ed. 14) (identify ing the SEM as “one of the most important concepts in measurement theory”). An individual’s IQ test score on any given exam may fluctuate for a variety of reasons. These include the test-taker’s health; practice from earlier tests; the environment or location of the test; the examin er’s demeanor; the subjective judgment involved in scoring certain questions on the exam; and simple lucky guessing. See American Association on Intellectual and Develop Cite as: 572 U. S. (14) 11 Opinion of the Court mental Disabilities, R. Schalock et al., User’s Guide To Accompany the 11th Edition of Intellectual Disability: Definition, Classification, and Systems of Supports 22 (12) (hereinafter AAIDD Manual); A. Kaufman, IQ Testing 101, pp. 138–139 (09). The SEM reflects the reality that an individual’s intel lectual functioning cannot be reduced to a single numeri cal score. For purposes of most IQ tests, the SEM means that an individual’s score is best understood as a range of scores on either side of the recorded score. The SEM allows clinicians to calculate a range within which one may say an individual’s true IQ score lies. See APA Brief 23 (“SEM is a unit of measurement: 1 SEM equates to a confidence of 68% that the measured score falls within a given score range, while 2 SEM provides a 95% confidence level that the measured score is within a broader range”). A score of 71, for instance, is generally considered to re flect a range between 66 and 76 with 95% confidence and a range of 68.5 and 73.5 with a 68% confidence. See DSM– 5, at 37 (“Individuals with intellectual disability have scores of approximately two standard deviations or more below the population mean, including a margin for meas urement error (generally +5 points). [T]his involves a score of 65– (70 ± 5)”); APA Brief 23 (“For example, the average SEM for the WAIS-IV is 2.16 IQ test points and the average SEM for the Stanford-Binet 5 is 2.30 IQ test points (test manuals report SEMs by different age group ings; these scores are similar, but not identical, often due to sampling error)”). Even when a person has taken mul tiple tests, each separate score must be assessed using the SEM, and the analysis of multiple IQ scores jointly is a complicated endeavor. See Schneider, Principles of As sessment of Aptitude and Achievement, in The Oxford Handbook of Child Psychological Assessment 286, 289– 291, 318 (D. Saklofske, C. Reynolds, V. Schwean, eds. 13). In addition, because the test itself may be flawed, 12 HALL v. FLORIDA Opinion of the Court or administered in a consistently flawed manner, multiple examinations may result in repeated similar scores, so that even a consistent score is not conclusive evidence of intellectual functioning. Despite these professional explanations, Florida law used the test score as a fixed number, thus barring further consideration of other evidence bearing on the question of intellectual disability. For professionals to diagnose—and for the law then to determine—whether an intellectual disability exists once the SEM applies and the individual’s IQ score is or below the inquiry would consider factors indicating whether the person had deficits in adaptive functioning. These include evidence of past performance, environment, and upbringing. B A significant majority of States implement the protec tions of by taking the SEM into account, thus acknowledging the error inherent in using a test score without necessary adjustment. This calculation provides “objective indicia of society’s standards” in the context of the Eighth Amendment. 543 U.S., 3. Only the Kentucky and Legislatures have adopted a fixed score cutoff identical to Florida’s. Ky. Rev. Stat. Ann. (Lexis Supp. 13); ; Va. Code Ann. (Lexis Supp. 13); Johnson v. Commonwealth, vacated and remanded on other grounds, Alabama also may use a strict IQ score cutoff at 70, although not as a result of legislative action. See (“The Alabama Supreme Court did not adopt any ‘margin of error’ when examining a defendant’s IQ score”). Petitioner does not question the rule in States which use a bright-line cutoff at or greater, Tr. of Oral Arg. 9, and Cite as: 572 U. S. (14) 13 Opinion of the Court so they are not included alongside Florida in this analysis. In addition to these States, Arizona, Delaware, Kansas, North Carolina, and Washington have statutes which could be interpreted to provide a bright-line cutoff leading to the same result that Florida mandates in its cases. See –3(F) (West 13); Del. Code Ann. Tit. 11, §9(d)(3) (12 Supp.); Kan. Stat. Ann. (13 Supp.); N. C. Gen. Stat. Ann. §15A–05 (Lexis 13); (2)(c) (12). That these state laws might be interpreted to require a bright-line cutoff does not mean that they will be so inter preted, however. See, e.g., 137, (10) (Although Nebras ka’s statute specifies “[a]n intelligence quotient of seventy or below on a reliably administered intelligence quotient test,” “[t]he district court found that [the defendant’s] score of on the [IQ test], considered in light of the standard error of measurement, could be considered as subaverage general intellectual functioning for purposes of diagnosing mental retardation”). Arizona’s statute appears to set a broad statutory cutoff at 70, –3(F) (West 13), but another provision instructs courts to “take into account the margin of error for a test administered.” at 3(K)(5). How courts are meant to interpret the statute in a situation like ’s is not altogether clear. The prin cipal Arizona case on the matter, State v. Roque, 141 P.3d 368, (Ariz 06), states that “the statute accounts for margin of error by requiring multiple tests,” and that “if the defendant achieves a full-scale score of 70 or below on any one of the tests, then the court proceeds to a hearing.” But that case also notes that the defendant had an IQ score of 80, well outside the margin of error, and that all but one of the sub-parts of the IQ test were “above” Kansas has not had an execution in almost five decades, 14 HALL v. FLORIDA Opinion of the Court and so its laws and jurisprudence on this issue are unlikely to receive attention on this specific question. See (“[E]ven in those States that allow the execution of mentally retarded offenders, the practice is uncommon. Some States continue to authorize executions, but none have been carried out in decades. Thus there is little need to pursue legislation barring the execution of the mentally retarded in those States”). Delaware has executed three individuals in the past dec ade, while Washington has executed one person, and has recently suspended its death penalty. None of the four individuals executed recently in those States appears to have brought a claim similar to that advanced here. Thus, at most nine States mandate a strict IQ score cutoff at 70. Of these, four States (Delaware, Kansas, North Carolina, and Washington) appear not to have considered the issue in their courts. On the other side of the ledger stand the 18 States that have abolished the death penalty, either in full or for new offenses, and Ore gon, which has suspended the death penalty and executed only two individuals in the past 40 years. See 543 U.S., (“[The] Court should have considered those States that had abandoned the death penalty altogether as part of the consensus against the juvenile death penalty”). In those States, of course, a person in ’s position could not be executed even without a finding of intellectual disability. Thus in 41 States an individual in ’s position—an individual with an IQ score of 71—would not be deemed automatically eligible for the death penalty. These aggregate numbers are not the only considera tions bearing on a determination of consensus. Consistency of the direction of change is also relevant. See at 565–566 (quoting ). Since many States have passed legislation to comply with the constitutional requirement that persons with intellectual disability not be executed. Two of these States, Cite as: 572 U. S. (14) 15 Opinion of the Court and Delaware, appear to set a strict cutoff at 70, although as discussed, Delaware’s courts have yet to interpret the law. In contrast, at least 11 States have either abolished the death penalty or passed legislation allowing defend ants to present additional evidence of intellectual disabil ity when their IQ test score is above 70. Since five States have abolished the death pen alty through legislation. See 12 Conn. Pub. Acts no. 12– 5; Ill. Comp. Stat. ch. 725, (West 12); Md. Cor rec. Servs. Code Ann. et seq. ; N. J. Stat. Ann. (West Supp. 13); 09 N. M. Laws ch. 11, In addition, the New York Court of Appeals invalidated New York’s death penalty under the State Constitution in see and legislation has not been passed to reinstate it. And when it did impose the death penalty, New York did not employ an IQ cutoff in determining intellectual disability. N. Y. Crim. Proc. Law Ann. In addition to these States, at least five others have passed legislation allowing a defendant to present addi tional evidence of intellectual disability even when an IQ test score is above 70. See Cal. Penal Code Ann. (West Supp. 14) (no IQ cutoff); –2515A (Lexis Supp. 13) (“seventy (70) or below”); Pizzutto v. State, 146 Idaho 7, 2 P.3d 642, (“The alleged error in IQ testing is plus or minus five points. The district court was entitled to draw reasonable infer ences from the undisputed facts”); La. Code Crim. Proc. Ann., Art. 905.5.1 (West Supp. 14) (no IQ cutoff); Nev. Rev. Stat. (13) (no IQ cutoff); Utah Code Ann (Lexis 12) (no IQ cutoff). The U. S. Code likewise does not set a strict IQ cutoff. See 18 U.S. C. §36(c). And no State that previously allowed defendants with an IQ score over 70 to present additional evidence of intellectual disability has modified its law to create a 16 HALL v. FLORIDA Opinion of the Court strict cutoff at 70. Cf. 6 no State that previ ously prohibited capital punishment for juveniles has reinstated it”). In summary, every state legislature to have considered the issue after —save ’s—and whose law has been interpreted by its courts has taken a position contrary to that of Florida. Indeed, the Florida Legisla ture, which passed the relevant legislation prior to might well have believed that its law would not create a fixed cutoff at 70. The staff analysis accompanying the 01 bill states that it “does not contain a set IQ level Two standard deviations from these tests is ap proximately a 70 IQ, although it can be extended up to” Fla. Senate Staff Analysis and Economic Impact Statement, CS/SB 238, p. 11 (Feb. 14, 01). But the Florida Supreme Court interpreted the law to require a bright-line cutoff at 70, see 9 So. 2d, at 712–713, and the Court is bound by that interpretation. The rejection of the strict 70 cutoff in the vast majority of States and the “consistency in the trend,” 7, toward recognizing the SEM provide strong evi dence of consensus that our society does not regard this strict cutoff as proper or humane. C itself acknowledges the inherent error in IQ testing. It is true that “did not provide definitive procedural or substantive guides for determining when a person who claims mental retardation” falls within the protection of the Eighth Amendment. Bobby v. Bies, 556 U.S. 825, 831 (09). In the Court stated: “Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wain- Cite as: 572 U. S. (14) 17 Opinion of the Court wright with regard to insanity, ‘we leave to the State[s] the task of developing appropriate ways to en force the constitutional restriction upon [their] execu tion of sentences.’ ” ; citation omitted). As discussed above, the States play a critical role in ad vancing protections and providing the Court with infor mation that contributes to an understanding of how intel lectual disability should be measured and assessed. But did not give the States unfettered discretion to define the full scope of the constitutional protection. The Court twice cited definitions of intellectual disability which, by their express terms, rejected a strict IQ test score cutoff at 70. first cited the definition provided in the DSM–IV: “ ‘Mild’ mental retardation is typically used to describe people with an IQ level of 50–55 to approximately 70.” n. 3 (citing Diag nostic and Statistical Manual of Mental Disorders 41 (4th ed. 00)). The Court later noted that “ ‘an IQ between 70 and or lower is typically considered the cutoff IQ score for the intellectual function prong of the mental retardation definition.’ ” n. 5. Further more, immediately after the Court declared that it left “ ‘to the States the task of developing appropriate ways to enforce the constitutional restriction,’ ” the Court stated in an accompanying footnote that “[t]he [state] statutory definitions of mental retardation are not identical, but generally conform to the clinical definitions,” Thus itself not only cited clinical definitions for intellectual disability but also noted that the States’ standards, on which the Court based its own conclusion, conformed to those definitions. In the words of those persons who meet the “clinical definitions” of intel 18 HALL v. FLORIDA Opinion of the Court lectual disability “by definition have diminished capac ities to understand and process information, to communi cate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.” Thus, they bear “diminish[ed] personal culpability.” The clinical definitions of intellectual disability, which take into account that IQ scores represent a range, not a fixed number, were a fundamental premise of And those clinical definitions have long included the SEM. See Diagnostic and Statistical Manual of Mental Disorders 28 (rev. 3d ed. 1987) (“Since any measurement is fallible, an IQ score is generally thought to involve an error of meas urement of approximately five points; hence, an IQ of 70 is considered to represent a band or zone of 65 to Treat ing the IQ with some flexibility permits inclusion in the Mental Retardation category of people with IQs somewhat higher than 70 who exhibit significant deficits in adaptive behavior”). Respondent argues that the current Florida law was favorably cited by the Court. See Brief for Re spondent 18 (“As evidence of the national consensus, the Court specifically cited Florida’s statute at issue here, which has not substantively changed”). While did refer to Florida’s law in a citation listing States which had outlawed the execution of the intellectually disabled, 536 U.S., that fleeting mention did not signal the Court’s approval of Florida’s current understanding of the law. As discussed above, when was decided the Florida Supreme Court had not yet interpreted the law to require a strict IQ cutoff at 70. That new interpretation runs counter to the clinical definition cited throughout and to Florida’s own legislative report indicating this kind of cutoff need not be used. Respondent’s argument also conflicts with the logic of and the Eighth Amendment. If the States were to Cite as: 572 U. S. (14) 19 Opinion of the Court have complete autonomy to define intellectual disability as they wished, the Court’s decision in could become a nullity, and the Eighth Amendment’s protection of human dignity would not become a reality. This Court thus reads to provide substantial guidance on the definition of intellectual disability. D The actions of the States and the precedents of this Court “give us essential instruction,” 543 U.S., at 564, but the inquiry must go further. “[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Coker v. Georgia, 7 That exercise of independent judgment is the Court’s judicial duty. See (“[T]o the extent Stanford was based on a rejection of the idea that this Court is required to bring its independent judgment to bear on the proportionality of the death penalty for a particular class of crimes or offenders, it suffices to note that this rejection was inconsistent with prior Eighth Amendment decisions” (citation omitted). In this Court’s independent judgment, the Florida stat ute, as interpreted by its courts, is un In addition to the views of the States and the Court’s precedent, this determination is informed by the views of medical experts. These views do not dictate the Court’s decision, yet the Court does not disregard these informed assessments. See (“[T]he science of psychiatry informs but does not control ultimate legal determinations”). It is the Court’s duty to interpret the Constitution, but it need not do so in isolation. The legal determination of intellectual disability is distinct from a medical diagnosis, but it is informed by the medical community’s diagnostic frame HALL v. FLORIDA Opinion of the Court work. itself points to the diagnostic criteria em ployed by psychiatric professionals. And the professional community’s teachings are of particular help in this case, where no alternative definition of intellectual disability is presented and where this Court and the States have placed substantial reliance on the expertise of the medical profession. By failing to take into account the SEM and setting a strict cutoff at 70, Florida “goes against the unanimous professional consensus.” APA Brief 15. Neither Florida nor its amici point to a single medical professional who supports this cutoff. The DSM–5 repudiates it: “IQ test scores are approximations of conceptual functioning but may be insufficient to assess reasoning in real-life situa tions and mastery of practical tasks.” DSM–5, at 37. This statement well captures the Court’s independent assess ment that an individual with an IQ test score “between 70 and or lower,” may show intellectual disability by presenting additional evidence regarding difficulties in adaptive functioning. The flaws in Florida’s law are the result of the inherent error in IQ tests themselves. An IQ score is an approxi mation, not a final and infallible assessment of intellectual functioning. See APA Brief 24 (“[I]t is standard pyscho metric practice to report the ‘estimates of relevant reliabil ities and standard errors of measurement’ when reporting a test score”); (the margin of error is “inherent to the accuracy of IQ scores”); Furr, Psychometrics, 9 (“[T]he standard error of measurement is an important psychometric value with implications for applied meas urement”). SEM is not a concept peculiar to the psychiat ric profession and IQ tests. It is a measure that is recog nized and relied upon by those who create and devise tests of all sorts. 8 (identifying the SEM as “one of the most important concepts in measurement theory”). This awareness of the IQ test’s limits is of particular Cite as: 572 U. S. (14) 21 Opinion of the Court importance when conducting the conjunctive assessment necessary to assess an individual’s intellectual ability. See American Association on Intellectual and Develop mental Disabilities, Intellectual Disability: Definition, Classification, and Systems of Supports 40 (11th ed. 10) (“It must be stressed that the diagnosis of [intellectual disability] is intended to reflect a clinical judgment rather than an actuarial determination”). Intellectual disability is a condition, not a number. See DSM–5, at 37. Courts must recognize, as does the medical community, that the IQ test is imprecise. This is not to say that an IQ test score is unhelpful. It is of considerable significance, as the medical community recognizes. But in using these scores to assess a defendant’s eligibility for the death penalty, a State must afford these test scores the same studied skepticism that those who design and use the tests do, and understand that an IQ test score repre sents a range rather than a fixed number. A State that ignores the inherent imprecision of these tests risks exe cuting a person who suffers from intellectual disability. See APA Brief 17 (“Under the universally accepted clinical standards for diagnosing intellectual disability, the court’s determination that Mr. is not intellectually disabled cannot be considered valid”). This Court agrees with the medical experts that when a defendant’s IQ test score falls within the test’s acknowl edged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disa bility, including testimony regarding adaptive deficits. It is not sound to view a single factor as dispositive of a conjunctive and interrelated assessment. See DSM–5, at 37 (“[A] person with an IQ score above 70 may have such severe adaptive behavior problems that the person’s actual functioning is comparable to that of individuals with a lower IQ score”). The Florida statute, as interpreted by its courts, misuses IQ score on its own terms; and 22 HALL v. FLORIDA Opinion of the Court this, in turn, bars consideration of evidence that must be considered in determining whether a defendant in a capi tal case has intellectual disability. Florida’s rule is invalid under the Constitution’s Cruel and Unusual Punishments Clause. E Florida seeks to execute a man because he scored a 71 instead of 70 on an IQ test. Florida is one of just a few States to have this rigid rule. Florida’s rule misconstrues the Court’s statements in that intellectually dis ability is characterized by an IQ of “approximately 70.” 536 U.S., at 308, n. 3. Florida’s rule is in direct opposition to the views of those who design, administer, and interpret the IQ test. By failing to take into account the standard error of measurement, Florida’s law not only contradicts the test’s own design but also bars an essential part of a sentencing court’s inquiry into adaptive functioning. Freddie Lee may or may not be intellectually dis abled, but the law requires that he have the opportunity to present evidence of his intellectual disability, including deficits in adaptive functioning over his lifetime. The death penalty is the gravest sentence our society may impose. Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution. Florida’s law contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world. The States are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitu tion protects. The judgment of the Florida Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. So ordered. Cite as: 572 U. S. (14) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES No. 12–10882 FREDDIE LEE HALL, PETITIONER v. |
Justice Scalia | dissenting | false | Allied-Bruce Terminix Cos. v. Dobson | 1995-01-18T00:00:00 | null | https://www.courtlistener.com/opinion/117892/allied-bruce-terminix-cos-v-dobson/ | https://www.courtlistener.com/api/rest/v3/clusters/117892/ | 1,995 | 1994-017 | 2 | 7 | 2 | I have previously joined two judgments of this Court that rested upon the holding of Southland Corp. v. Keating, 465 U.S. 1 (1984). See Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468 (1989); Perry v. Thomas, 482 U.S. 483 (1987). In neither of those cases, however, did any party ask that Southland be overruled, and it was therefore not necessary to consider the question. In the present case, by contrast, one of respondents' central arguments is that Southland was wrongly decided, and their request for its overruling has been supported by an amicus brief signed by the attorneys general of 20 States. For the reasons set forth in Justice Thomas' opinion, which I join, I agree with the respondents (and belatedly with Justice O'Connor) that Southland clearly misconstrued the Federal Arbitration Act.
I do not believe that proper application of stare decisis prevents correction of the mistake. Adhering to Southland *285 entails a permanent, unauthorized eviction of state-court power to adjudicate a potentially large class of disputes. Abandoning it does not impair reliance interests to a degree that justifies this evil. Primary behavior is not affected: No rule of conduct is retroactively changed, but only (perhaps) the forum in which violation is to be determined and remedied. I doubt that many contracts with arbitration clauses would have been forgone, or entered into only for significantly higher remuneration, absent the Southland guarantee. Where, moreover, reliance on Southland did make a significant difference, rescission of the contract for mistake of law would often be available. See 3 A. Corbin, Corbin on Contracts § 616 (1960 ed. and Supp. 1992); Restatement (Second) of Contracts § 152 (1979).
I shall not in the future dissent from judgments that rest on Southland. I will, however, stand ready to join four other Justices in overruling it, since Southland will not become more correct over time, the course of future lawmaking seems unlikely to be affected by its existence, cf. Pennsylvania v. Union Gas Co., 491 U.S. 1, 34-35 (1989) (Scalia, J., concurring in part and dissenting in part), and the accumulated private reliance will not likely increase beyond the level it has already achieved (few contracts not terminable at will have more than a 5-year term).
For these reasons, I respectfully dissent from the judgment of the Court. | I have previously joined two judgments of this Court that rested upon the holding of Southland See Volt Information Sciences, ; In neither of those cases, however, did any party ask that Southland be overruled, and it was therefore not necessary to consider the question. In the present case, by contrast, one of respondents' central arguments is that Southland was wrongly decided, and their request for its overruling has been supported by an amicus brief signed by the attorneys general of 20 States. For the reasons set forth in Justice Thomas' opinion, which I join, I agree with the respondents (and belatedly with Justice O'Connor) that Southland clearly misconstrued the Federal Arbitration Act. I do not believe that proper application of stare decisis prevents correction of the mistake. Adhering to Southland *285 entails a permanent, unauthorized eviction of state-court power to adjudicate a potentially large class of disputes. Abandoning it does not impair reliance interests to a degree that justifies this evil. Primary behavior is not affected: No rule of conduct is retroactively changed, but only (perhaps) the forum in which violation is to be determined and remedied. I doubt that many contracts with arbitration clauses would have been forgone, or entered into only for significantly higher remuneration, absent the Southland guarantee. Where, moreover, reliance on Southland did make a significant difference, rescission of the contract for mistake of law would often be available. See 3 A. Corbin, Corbin on Contracts 616 (1960 ed. and Supp. 1992); Restatement (Second) of Contracts 152 (1979). I shall not in the future dissent from judgments that rest on Southland. I will, however, stand ready to join four other Justices in overruling it, since Southland will not become more correct over time, the course of future lawmaking seems unlikely to be affected by its existence, cf. and the accumulated private reliance will not likely increase beyond the level it has already achieved (few contracts not terminable at will have more than a 5-year term). For these reasons, I respectfully dissent from the judgment of the Court. |
Justice Blackmun | majority | false | Mathews v. Lucas | 1976-06-29T00:00:00 | null | https://www.courtlistener.com/opinion/109523/mathews-v-lucas/ | https://www.courtlistener.com/api/rest/v3/clusters/109523/ | 1,976 | 1975-164 | 1 | 6 | 3 | This case presents the issue of the constitutionality, under the Due Process Clause of the Fifth Amendment, of those provisions of the Social Security Act that condition the eligibility of certain illegitimate children for a surviving child's insurance benefits upon a showing that the deceased wage earner was the claimant child's parent and, at the time of his death, was living with the child or was contributing to his support.
I
Robert Cuffee, now deceased, lived with Belmira Lucas during the years 1948 through 1966, but they were never married. Two children were born to them during these years: Ruby M. Lucas, in 1953, and Darin E. Lucas, in 1960. In 1966 Cuffee and Lucas separated. Cuffee died in Providence, R. I., his home, in 1968. He died without ever having acknowledged in writing his paternity of either Ruby or Darin, and it was never determined in any judicial proceeding during his lifetime that he was the father of either child. After Cuffee's death, Mrs. Lucas filed an application on behalf of Ruby and Darin for surviving children's benefits under § 202 (d) (1) of the Social Security Act, 70 Stat. 807, as amended, 42 U.S. C. § 402 (d) (1) (1970 ed. and Supp. IV), based upon Cuffee's earnings record.
II
In operative terms, the Act provides that an unmarried son or daughter of an individual, who died fully or currently insured under the Act, may apply for and be *498 entitled to a survivor's benefit, if the applicant is under 18 years of age at the time of application (or is a full-time student and under 22 years of age) and was dependent, within the meaning of the statute, at the time of the parent's death.[1] A child is considered dependent for this purpose if the insured father was living with or contributing to the child's support at the time of death. Certain children, however, are relieved of the burden of such individualized proof of dependency. Unless the child has been adopted by some other individual, a child *499 who is legitimate, or a child who would be entitled to inherit personal property from the insured parent's estate under the applicable state intestacy law, is considered to have been dependent at the time of the parent's death.[2] Even lacking this relationship under state law, a child, unless adopted by some other individual, is entitled to a presumption of dependency if the decedent, before death, (a) had gone through a marriage ceremony with the other parent, resulting in a purported marriage between them which, but for a nonobvious legal defect, would have been valid, or (b) in writing had acknowledged the child to be his, or (c) had been decreed by a court to be the child's father, or (d) had been ordered by a court to support the child because the child was his.[3]
*500 An Examiner of the Social Security Administration, after hearings, determined that while Cuffee's paternity was established, the children had failed to demonstrate their dependency by proof that Cuffee either lived with them or was contributing to their support at the time *501 of his death, or by any of the statutory presumptions of dependency, and thus that they were not entitled to survivorship benefits under the Act. The Appeals Council of the Social Security Administration affirmed these rulings, and they became the final decision of the Secretary of Health, Education, and Welfare. Lucas then timely filed this action, pursuant to § 205 (g) of the Act, 42 U.S. C. § 405 (g), in the United States District Court for the District of Rhode Island on behalf of the two children (hereinafter sometimes called the appellees) for review of the Secretary's decision.
The District Court ultimately affirmed each of the factual findings of the administrative agency: that Robert Cuffee was the children's father; that he never acknowledged his paternity in writing; that his paternity or support obligations had not been the subject of a judicial proceeding during his lifetime; that no common-law marriage had ever been contracted between Cuffee and Lucas, so that the children could not inherit Cuffee's personal property under the intestacy law of Rhode Island; and that, at the time of his death, he was neither living with the children nor contributing to their support. 390 F. Supp. 1310, 1312-1314 (1975). None of these factual matters is at issue here.[4]
*502 A motion for summary judgment, filed by the appellees, relied on Jimenez v. Weinberger, 417 U.S. 628 (1974). It was urged that denial of benefits in this case, where paternity was clear, violated the Fifth Amendment's Due Process Clause, as that provision comprehends the principle of equal protection of the laws,[5] because other children, including all legitimate children, are statutorily entitled, as the Lucas children are not, to survivorship benefits regardless of actual dependency. Addressing this issue, the District Court ruled that the statutory classifications were constitutionally impermissible.[6] 390 F. Supp., at 1314-1321. Recognizing that the web of statutory provisions regarding presumptive dependency was overinclusive because it entitled some children, who were not actually dependent, to survivorship benefits under the Actalthough not underinclusive, since no otherwise eligible child who could establish actual dependency at the time of death was denied such benefits the court concluded that the Act was not intended merely to replace actual support that a child lost through the death of the insured parent. Id., at 1319-1320. Rather, the court characterized the statute as one designed to replace obligations of support or potential *503 support lost through death, where the obligation was perceived by Congress, on the basis of the responsibility of the relation between the child's parents, to be a valid one. Thus, the court concluded:
"[The Act] conditions eligibility on the basis of Congress' views as to who is entitled to support and reflects society's view that legitimate and `legitimated' children are more entitled to support by or through a parent than are illegitimate children. But this is not a legitimate governmental interest, and thus cannot support the challenged classification. Gomez v. Perez, [409 U.S. 535 (1973)]." Id., at 1320. (Emphasis in original.)
With this conclusion, the District Court reversed the administrative decision and ordered the Secretary to pay benefits for both children. Jurisdictional Statement 28a.
The Secretary appealed directly to this Court. 28 U.S. C. § 1252. We noted probable jurisdiction and set the case for argument with Norton v. Mathews, post, p. 524. 423 U.S. 819 (1975).
III
The Secretary does not disagree that the Lucas children and others similarly circumstanced are treated differently, as a class, from those childrenlegitimate and illegitimatewho are relieved by statutory presumption of any requirement of proving actual dependency at the time of death through cohabitation or contribution: for children in the advantaged classes may be statutorily entitled to benefits even if they have never been dependent upon the father through whom they claim.[7] Statutory *504 classifications, of course, are not per se unconstitutional; the matter depends upon the character of the discrimination and its relation to legitimate legislative aims. "The essential inquiry . . . is . . . inevitably a dual one: What legitimate [governmental] interest does the classification promote? What fundamental personal rights might the classification endanger?" Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 173 (1972).
Although the District Court concluded that close judicial scrutiny of the statute's classifications was not necessary to its conclusion invalidating those classifications, it also concluded that legislation treating legitimate and illegitimate offspring differently is constitutionally suspect,[8] 390 F. Supp., at 1318-1319, and requires the judicial scrutiny traditionally devoted to cases involving discrimination along lines of race[9] or national origin.[10] Appellees echo this approach. We disagree.[11]
*505 It is true, of course, that the legal status of illegitimacy, however defined, is, like race or national origin, a characteristic determined by causes not within the control of the illegitimate individual, and it bears no relation to the individual's ability to participate in and contribute to society. The Court recognized in Weber that visiting condemnation upon the child in order to express society's disapproval of the parents' liaisons
"is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectualas well as an unjustway of deterring the parent." 406 U.S., at 175. (Footnote omitted.)
But where the law is arbitrary in such a way, we have had no difficulty in finding the discrimination impermissible on less demanding standards than those advocated here. New Jersey Welfare Rights Org. v. Cahill, 411 U.S. 619 (1973); Richardson v. Davis, 409 U.S. 1069 (1972); Richardson v. Griffin, 409 U.S. 1069 (1972); Weber, supra; Levy v. Louisiana, 391 U.S. 68 (1968). And such irrationality in some classifications does not in itself demonstrate that other, possibly rational, distinctions made in part on the basis of legitimacy are inherently untenable. Moreover, while the law has long *506 placed the illegitimate child in an inferior position relative to the legitimate in certain circumstances, particularly in regard to obligations of support or other aspects of family law, see generally, e. g., H. Krause, Illegitimacy: Law and Social Policy 21-42 (1971); Gray & Rudovsky, The Court Acknowledges the Illegitimate: Levy v. Louisiana and Glona v. American Guarantee & Liability Insurance Co., 118 U. Pa. L. Rev. 1, 19-38 (1969), perhaps in part because the roots of the discrimination rest in the conduct of the parents rather than the child,[12] and perhaps in part because illegitimacy does not carry an obvious badge, as race or sex do, this discrimination against illegitimates has never approached the severity or pervasiveness of the historic legal and political discrimination against women and Negroes. See Frontiero v. Richardson, 411 U.S. 677, 684-686 (1973) (plurality opinion).
We therefore adhere to our earlier view, see Labine v. Vincent, 401 U.S. 532 (1971), that the Act's discrimination between individuals on the basis of their legitimacy does not "command extraordinary protection from the majoritarian political process," San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 28 (1973), which our most exacting scrutiny would entail.[13] See Jimenez, 417 U. S., at 631-634, 636; Weber, 406 U. S., at 173, 175-176.
*507 Relying on Weber, the Court, in Gomez v. Perez, 409 U.S. 535, 538 (1973), held that "once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother." The same principle, which we adhere to now, applies when the judicially enforceable right to needed support lies against the Government rather than a natural father. See New Jersey Welfare Rights Org. v. Cahill, supra.
Consistent with our decisions, the Secretary explains the design of the statutory scheme assailed here as a program to provide for all children of deceased insureds who can demonstrate their "need" in terms of dependency at the times of the insureds' deaths. Cf. Jimenez, 417 U. S., at 634. He authenticates this description by reference to the explicit language of the Act specifying that the applicant child's classification as legitimate, or acknowledged, etc., is ultimately relevant only to the determination of dependency, and by reference to legislative history indicating that the statute was not a general welfare provision for legitimate or otherwise "approved" children of deceased insureds, but was intended just "to replace the support lost by a child when his father . . . dies . . . ." S. Rep. No. 404, 89th Cong., 1st Sess., 110 (1965).
Taking this explanation at face value, we think it clear that conditioning entitlement upon dependency at the time of death is not impermissibly discriminatory in providing only for those children for whom the loss of the parent is an immediate source of the need. Cf. Geduldig v. Aiello, 417 U.S. 484, 492-497 (1974); Jefferson v. Hackney, 406 U.S. 535 (1972); Richardson v. Belcher, *508 404 U.S. 78 (1971). See also Weber, 406 U. S., at 174-175.
But appellees contend that the actual design of the statute belies the Secretary's description, and that the statute was intended to provide support for insured decedents' children generally, if they had a "legitimate" claim to support, without regard to actual dependency at death; in any case, they assert, the statute's matrix of classifications bears no adequate relationship to actual dependency at death. Since such dependency does not justify the statute's discriminations, appellees argue, those classifications must fall under Gomez v. Perez, supra. These assertions are in effect one and the same.[14] The basis for appellees' argument is the obvious fact that *509 each of the presumptions of dependency renders the class of benefit-recipients incrementally overinclusive, in the sense that some children within each class of presumptive dependents are automatically entitled to benefits under the statute although they could not in fact prove their economic dependence upon insured wage earners at the time of death. We conclude that the statutory classifications are permissible, however, because they are reasonably related to the likelihood of dependency at death.
A
Congress' purpose in adopting the statutory presumptions of dependency was obviously to serve administrative convenience. While Congress was unwilling to assume that every child of a deceased insured was dependent at the time of death, by presuming dependency on the basis of relatively readily documented facts, such as legitimate birth, or existence of a support order or paternity decree, which could be relied upon to indicate the likelihood of continued actual dependency, Congress was able to avoid the burden and expense of specific case-by-case determination in the large number of cases where dependency is objectively probable. Such presumptions in aid of administrative functions, though they may approximate, rather than precisely mirror, the results that case-by-case adjudication would show, are permissible under the Fifth Amendment, so long as that lack of precise equivalence does not exceed the bounds of substantiality tolerated by the applicable level of scrutiny. See Weinberger v. Salfi, 422 U.S. 749, 772 (1975).[15]
In cases of strictest scrutiny, such approximations must be supported at least by a showing that the Government's *510 dollar "lost" to overincluded benefit recipients is returned by a dollar "saved" in administrative expense avoided. Frontiero v. Richardson, 411 U. S., at 689 (plurality opinion). Under the standard of review appropriate here, however, the materiality of the relation between the statutory classifications and the likelihood of dependency they assertedly reflect need not be " `scientifically substantiated.' " James v. Strange, 407 U.S. 128, 133 (1972), quoting Roth v. United States, 354 U.S. 476, 501 (1957) (opinion of Harlan, J.). Nor, in any case, do we believe that Congress is required in this realm of less than strictest scrutiny to weigh the burdens of administrative inquiry solely in terms of dollars ultimately "spent," ignoring the relative amounts devoted to administrative rather than welfare uses. Cf. Weinberger v. Salfi, 422 U. S., at 784. Finally, while the scrutiny by which their showing is to be judged is not a toothless one, e. g., Jimenez v. Weinberger, 417 U.S. 628 (1974); Frontiero v. Richardson, 411 U. S., at 691 (STEWART, J., concurring in judgment, POWELL, J., concurring in judgment); Reed v. Reed, 404 U.S. 71 (1971), the burden remains upon the appellees to demonstrate the insubstantiality of that relation. See Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79 (1911); cf. United States v. Gainey, 380 U.S. 63, 67 (1965).
B
Applying these principles, we think that the statutory classifications challenged here are justified as reasonable empirical judgments that are consistent with a design to qualify entitlement to benefits upon a child's dependency at the time of the parent's death. To begin with, we note that the statutory scheme is significantly different from the provisions confronted in cases in which the *511 Court has invalidated legislative discriminations among children on the basis of legitimacy. See Gomez v. Perez, 409 U.S. 535 (1973); New Jersey Welfare Rights Org. v. Cahill, 411 U.S. 619 (1973); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972); Levy v. Louisiana, 391 U.S. 68 (1968). These differences render those cases of little assistance to appellees. It could not have been fairly argued, with respect to any of the statutes struck down in those cases, that the legitimacy of the child was simply taken as an indication of dependency, or of some other valid ground of qualification. Under all but one of the statutes, not only was the legitimate child automatically entitled to benefits, but an illegitimate child was denied benefits solely and finally on the basis of illegitimacy, and regardless of any demonstration of dependency or other legitimate factor. See also Griffin v. Richardson, 346 F. Supp. 1226 (Md.), summarily aff'd, 409 U.S. 1069 (1972); Davis v. Richardson, 342 F. Supp. 588 (Conn.), summarily aff'd, 409 U.S. 1069 (1972). In Weber v. Aetna Casualty & Surety Co., supra, the sole partial exception, the statutory scheme provided for a child's equal recovery under a workmen's compensation plan in the event of the death of the father, not only if the child was dependent, but also only if the dependent child was legitimate. 406 U.S., at 173-174, and n. 12. Jimenez v. Weinberger, supra, invalidating discrimination among afterborn illegitimate children as to entitlement to a child's disability benefits under the Social Security Act, is similarly distinguishable. Under the somewhat related statutory matrix considered there, legitimate children and those capable of inheriting personal property under state intestacy law, and those illegitimate solely on account of a nonobvious defect in their parents' marriage, were eligible for benefits, even if they were born after the onset of the father's disability. *512 Other (illegitimate) afterborn children were conclusively denied any benefits, regardless of any showing of dependency. The Court held the discrimination among illegitimate afterborn children impermissible, rejecting the Secretary's claim that the classification was based upon considerations regarding trustworthy proof of dependency, because it could not accept the assertion:
"[T]he blanket and conclusive exclusion of appellants' subclass of illegitimates is reasonably related to the prevention of spurious claims [of dependency]. Assuming that the appellants are in fact dependent on the claimant [father], it would not serve the purposes of the Act to conclusively deny them an opportunity to establish their dependency and their right to insurance benefits." 417 U.S., at 636.
Hence, it was held that
"to conclusively deny one subclass benefits presumptively available to the other denies the former the equal protection of the laws guaranteed by the due process provision of the Fifth Amendment." Id., at 637.
See also Weinberger v. Wiesenfeld, 420 U.S. 636, 645 (1975); cf. Labine v. Vincent, 401 U. S., at 539. But this conclusiveness in denying benefits to some classes of afterborn illegitimate children, which belied the asserted legislative reliance on dependency in Jimenez, is absent here, for, as we have noted, any otherwise eligible child may qualify for survivorship benefits by showing contribution to support, or cohabitation, at the time of death. Cf. Vlandis v. Kline, 412 U.S. 441, 452-453, n. 9 (1973), distinguishing Starns v. Malkerson, 326 F. Supp. 234 (Minn. 1970), summarily aff'd, 401 U.S. 985 (1971).
It is, of course, not enough simply that any child of a deceased insured is eligible for benefits upon some showing *513 of dependency. In Frontiero v. Richardson, supra, we found it impermissible to qualify the entitlement to dependent's benefits of a married woman in the uniformed services upon an individualized showing of her husband's actual dependence upon her for more than half his income, when no such showing of actual dependency was required of a married man in the uniformed services to obtain dependent's benefits on account of his wife. The invalidity of that gender-based discrimination rested upon the "overbroad" assumption, Schlesinger v. Ballard, 419 U.S. 498, 508 (1975), underlying the discrimination "that male workers' earnings are vital to the support of their families, while the earnings of female wage earners do not significantly contribute to their families' support." Weinberger v. Wiesenfeld, 420 U. S., at 643; see Frontiero, 411 U. S., at 689 n. 23. Here, by contrast, the statute does not broadly discriminate between legitimates and illegitimates without more, but is carefully tuned to alternative considerations. The presumption of dependency is withheld only in the absence of any significant indication of the likelihood of actual dependency. Moreover, we cannot say that the factors that give rise to a presumption of dependency lack any substantial relation to the likelihood of actual dependency. Rather, we agree with the assessment of the three-judge court as it originally ruled in Norton v. Weinberger, 364 F. Supp. 1117, 1128 (Md. 1973):[16]
"[I]t is clearly rational to presume the overwhelming number of legitimate children are actually dependent upon their parents for support. Likewise. . . the children of an invalid marriage . . . *514 would typically live in the wage earner's home or be supported by him. . . . When an order of support is entered by a court, it is reasonable to assume compliance occurred. A paternity decree, while not necessarily ordering support, would almost as strongly suggest support was subsequently obtained. Conceding that a written acknowledgment lacks the imprimatur of a judicial proceeding, it too establishes the basis for a rational presumption. Men do not customarily affirm in writing their responsibility for an illegitimate child unless the child is theirs and a man who has acknowledged a child is more likely to provide it support than one who does not."
Similarly, we think, where state intestacy law provides that a child may take personal property from a father's estate, it may reasonably be thought that the child will more likely be dependent during the parent's life and at his death.[17] For in its embodiment of the popular *515 view within the jurisdiction of how a parent would have his property devolve among his children in the event of death, without specific directions, such legislation also reflects to some degree the popular conception within the jurisdiction of the felt parental obligation to such an "illegitimate" child in other circumstances, and thus something of the likelihood of actual parental support during, as well as after, life.[18] Accord, Watts v. Veneman, 155 U. S. App. D. C. 84, 88, 476 F.2d 529, 533 (1973).
To be sure, none of these statutory criteria compels the extension of a presumption of dependency. But the constitutional question is not whether such a presumption is required, but whether it is permitted. Nor, in ratifying these statutory classifications, is our role to hypothesize independently on the desirability or feasibility of any possible alternative basis for presumption. These matters of practical judgment and empirical calculation are for Congress. Drawing upon its own practical experience, *516 Congress has tailored statutory classifications in accord with its calculations of the likelihood of actual support suggested by a narrow set of objective and apparently reasonable indicators. Our role is simply to determine whether Congress' assumptions are so inconsistent or insubstantial as not to be reasonably supportive of its conclusions that individualized factual inquiry in order to isolate each nondependent child in a given class of cases is unwarranted as an administrative exercise. In the end, the precise accuracy of Congress' calculations is not a matter of specialized judicial competence; and we have no basis to question their detail beyond the evident consistency and substantiality. Cf. United States v. Gainey, 380 U. S., at 67. We cannot say that these expectations are unfounded, or so indiscriminate as to render the statute's classifications baseless. We conclude, in short, that, in failing to extend any presumption of dependency to appellees and others like them, the Act does not impermissibly discriminate against them as compared with legitimate children or those illegitimate children who are statutorily deemed dependent.
Reversed.
MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN and MR. | This case presents the issue of the constitutionality, under the Due Process Clause of the Fifth Amendment, of those provisions of the Social Security Act that condition the eligibility of certain illegitimate children for a surviving child's insurance benefits upon a showing that the deceased wage earner was the claimant child's parent and, at the time of his death, was living with the child or was contributing to his support. I Robert Cuffee, now deceased, lived with Belmira Lucas during the years 1948 through 1966, but they were never married. Two children were born to them during these years: Ruby M. Lucas, in 1953, and Darin E. Lucas, in 1960. In 1966 Cuffee and Lucas separated. Cuffee died in Providence, R. I., his home, in 1968. He died without ever having acknowledged in writing his paternity of either Ruby or Darin, and it was never determined in any judicial proceeding during his lifetime that he was the father of either child. After Cuffee's death, Mrs. Lucas filed an application on behalf of Ruby and Darin for surviving children's benefits under 202 (d) (1) of the Social Security Act, as amended, 42 U.S. C. 402 (d) (1) (1970 ed. and Supp. IV), based upon Cuffee's earnings record. II In operative terms, the Act provides that an unmarried son or daughter of an individual, who died fully or currently insured under the Act, may apply for and be *498 entitled to a survivor's benefit, if the applicant is under 18 years of age at the time of application (or is a full-time student and under 22 years of age) and was dependent, within the meaning of the statute, at the time of the parent's death.[1] A child is considered dependent for this purpose if the insured father was living with or contributing to the child's support at the time of death. Certain children, however, are relieved of the burden of such individualized proof of dependency. Unless the child has been adopted by some other individual, a child *499 who is legitimate, or a child who would be entitled to inherit personal property from the insured parent's estate under the applicable state intestacy law, is considered to have been dependent at the time of the parent's death.[2] Even lacking this relationship under state law, a child, unless adopted by some other individual, is entitled to a presumption of dependency if the decedent, before death, (a) had gone through a marriage ceremony with the other parent, resulting in a purported marriage between them which, but for a nonobvious legal defect, would have been valid, or (b) in writing had acknowledged the child to be his, or (c) had been decreed by a court to be the child's father, or (d) had been ordered by a court to support the child because the child was his.[3] *500 An Examiner of the Social Security Administration, after hearings, determined that while Cuffee's paternity was established, the children had failed to demonstrate their dependency by proof that Cuffee either lived with them or was contributing to their support at the time * of his death, or by any of the statutory presumptions of dependency, and thus that they were not entitled to survivorship benefits under the Act. The Appeals Council of the Social Security Administration affirmed these rulings, and they became the final decision of the Secretary of Health, Education, and Welfare. Lucas then timely filed this action, pursuant to 205 (g) of the Act, 42 U.S. C. 405 (g), in the United States District Court for the District of Rhode Island on behalf of the two children (hereinafter sometimes called the appellees) for review of the Secretary's decision. The District Court ultimately affirmed each of the factual findings of the administrative agency: that Robert Cuffee was the children's father; that he never acknowledged his paternity in writing; that his paternity or support obligations had not been the subject of a judicial proceeding during his lifetime; that no common-law marriage had ever been contracted between Cuffee and Lucas, so that the children could not inherit Cuffee's personal property under the intestacy law of Rhode Island; and that, at the time of his death, he was neither living with the children nor contributing to their support. None of these factual matters is at issue here.[4] *502 A motion for summary judgment, filed by the appellees, relied on It was urged that denial of benefits in this case, where paternity was clear, violated the Fifth Amendment's Due Process Clause, as that provision comprehends the principle of equal protection of the laws,[5] because other children, including all legitimate children, are statutorily entitled, as the Lucas children are not, to survivorship benefits regardless of actual dependency. Addressing this issue, the District Court ruled that the statutory classifications were constitutionally impermissible.[6] -1321. Recognizing that the web of statutory provisions regarding presumptive dependency was overinclusive because it entitled some children, who were not actually dependent, to survivorship benefits under the Actalthough not underinclusive, since no otherwise eligible child who could establish actual dependency at the time of death was denied such benefits the court concluded that the Act was not intended merely to replace actual support that a child lost through the death of the insured parent. Rather, the court characterized the statute as one designed to replace obligations of support or potential *503 support lost through death, where the obligation was perceived by Congress, on the basis of the responsibility of the relation between the child's parents, to be a valid one. Thus, the court concluded: "[The Act] conditions eligibility on the basis of Congress' views as to who is entitled to support and reflects society's view that legitimate and `legitimated' children are more entitled to support by or through a parent than are illegitimate children. But this is not a legitimate governmental interest, and thus cannot support the challenged classification. ]." (Emphasis in original.) With this conclusion, the District Court reversed the administrative decision and ordered the Secretary to pay benefits for both children. Jurisdictional Statement a. The Secretary appealed directly to this Court. U.S. C. 1252. We noted probable jurisdiction and set the case for argument with III The Secretary does not disagree that the Lucas children and others similarly circumstanced are treated differently, as a class, from those childrenlegitimate and illegitimatewho are relieved by statutory presumption of any requirement of proving actual dependency at the time of death through cohabitation or contribution: for children in the advantaged classes may be statutorily entitled to benefits even if they have never been dependent upon the father through whom they claim.[7] Statutory *504 classifications, of course, are not per se unconstitutional; the matter depends upon the character of the discrimination and its relation to legitimate legislative aims. "The essential inquiry is inevitably a dual one: What legitimate [governmental] interest does the classification promote? What fundamental personal rights might the classification endanger?" Although the District Court concluded that close judicial scrutiny of the statute's classifications was not necessary to its conclusion invalidating those classifications, it also concluded that legislation treating legitimate and illegitimate offspring differently is constitutionally suspect,[8] -1319, and requires the judicial scrutiny traditionally devoted to cases involving discrimination along lines of race[9] or national origin.[10] Appellees echo this approach. We disagree.[11] *505 It is true, of course, that the legal status of illegitimacy, however defined, is, like race or national origin, a characteristic determined by causes not within the control of the illegitimate individual, and it bears no relation to the individual's ability to participate in and contribute to society. The Court recognized in that visiting condemnation upon the child in order to express society's disapproval of the parents' liaisons "is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectualas well as an unjustway of deterring the parent." (Footnote omitted.) But where the law is arbitrary in such a way, we have had no difficulty in finding the discrimination impermissible on less demanding standards than those advocated here. New Jersey Welfare Rights ; ; ; And such irrationality in some classifications does not in itself demonstrate that other, possibly rational, distinctions made in part on the basis of legitimacy are inherently untenable. Moreover, while the law has long *506 placed the illegitimate child in an inferior position relative to the legitimate in certain circumstances, particularly in regard to obligations of support or other aspects of family law, see generally, e. g., H. Krause, Illegitimacy: Law and Social Policy 21-42 ; Gray & Rudovsky, The Court Acknowledges the Illegitimate: and Glona v. American Guarantee & Liability Insurance perhaps in part because the roots of the discrimination rest in the conduct of the parents rather than the child,[12] and perhaps in part because illegitimacy does not carry an obvious badge, as race or sex do, this discrimination against illegitimates has never approached the severity or pervasiveness of the historic legal and political discrimination against women and Negroes. See We therefore adhere to our earlier view, see that the Act's discrimination between individuals on the basis of their legitimacy does not "command extraordinary protection from the majoritarian political process," San Antonio School which our most exacting scrutiny would entail.[13] See -634, 636; 406 U. S., at 175-176. *507 Relying on the Court, in held that "once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother." The same principle, which we adhere to now, applies when the judicially enforceable right to needed support lies against the Government rather than a natural father. See New Jersey Welfare Rights Consistent with our decisions, the Secretary explains the design of the statutory scheme assailed here as a program to provide for all children of deceased insureds who can demonstrate their "need" in terms of dependency at the times of the insureds' deaths. Cf. He authenticates this description by reference to the explicit language of the Act specifying that the applicant child's classification as legitimate, or acknowledged, etc., is ultimately relevant only to the determination of dependency, and by reference to legislative history indicating that the statute was not a general welfare provision for legitimate or otherwise "approved" children of deceased insureds, but was intended just "to replace the support lost by a child when his father dies" S. Rep. No. 404, 89th Cong., 1st Sess., 110 Taking this explanation at face value, we think it clear that conditioning entitlement upon dependency at the time of death is not impermissibly discriminatory in providing only for those children for whom the loss of the parent is an immediate source of the need. Cf. ; ; See also -175. But appellees contend that the actual design of the statute belies the Secretary's description, and that the statute was intended to provide support for insured decedents' children generally, if they had a "legitimate" claim to support, without regard to actual dependency at death; in any case, they assert, the statute's matrix of classifications bears no adequate relationship to actual dependency at death. Since such dependency does not justify the statute's discriminations, appellees argue, those classifications must fall under These assertions are in effect one and the same.[14] The basis for appellees' argument is the obvious fact that *509 each of the presumptions of dependency renders the class of benefit-recipients incrementally overinclusive, in the sense that some children within each class of presumptive dependents are automatically entitled to benefits under the statute although they could not in fact prove their economic dependence upon insured wage earners at the time of death. We conclude that the statutory classifications are permissible, however, because they are reasonably related to the likelihood of dependency at death. A Congress' purpose in adopting the statutory presumptions of dependency was obviously to serve administrative convenience. While Congress was unwilling to assume that every child of a deceased insured was dependent at the time of death, by presuming dependency on the basis of relatively readily documented facts, such as legitimate birth, or existence of a support order or paternity decree, which could be relied upon to indicate the likelihood of continued actual dependency, Congress was able to avoid the burden and expense of specific case-by-case determination in the large number of cases where dependency is objectively probable. Such presumptions in aid of administrative functions, though they may approximate, rather than precisely mirror, the results that case-by-case adjudication would show, are permissible under the Fifth Amendment, so long as that lack of precise equivalence does not exceed the bounds of substantiality tolerated by the applicable level of scrutiny. See[15] In cases of strictest scrutiny, such approximations must be supported at least by a showing that the Government's *510 dollar "lost" to overincluded benefit recipients is returned by a dollar "saved" in administrative expense avoided. Under the standard of review appropriate here, however, the materiality of the relation between the statutory classifications and the likelihood of dependency they assertedly reflect need not be " `scientifically substantiated.' " 407 U.S. 1, quoting Nor, in any case, do we believe that Congress is required in this realm of less than strictest scrutiny to weigh the burdens of administrative inquiry solely in terms of dollars ultimately "spent," ignoring the relative amounts devoted to administrative rather than welfare uses. Cf. Finally, while the scrutiny by which their showing is to be judged is not a toothless one, e. g., ; ; the burden remains upon the appellees to demonstrate the insubstantiality of that relation. See ; cf. United B Applying these principles, we think that the statutory classifications challenged here are justified as reasonable empirical judgments that are consistent with a design to qualify entitlement to benefits upon a child's dependency at the time of the parent's death. To begin with, we note that the statutory scheme is significantly different from the provisions confronted in cases in which the *511 Court has invalidated legislative discriminations among children on the basis of legitimacy. See ; New Jersey Welfare Rights ; ; These differences render those cases of little assistance to appellees. It could not have been fairly argued, with respect to any of the statutes struck down in those cases, that the legitimacy of the child was simply taken as an indication of dependency, or of some other valid ground of qualification. Under all but one of the statutes, not only was the legitimate child automatically entitled to benefits, but an illegitimate child was denied benefits solely and finally on the basis of illegitimacy, and regardless of any demonstration of dependency or other legitimate factor. See also Griffin v. (Md.), summarily aff'd, ; Davis v. (Conn.), summarily aff'd, In the sole partial exception, the statutory scheme provided for a child's equal recovery under a workmen's compensation plan in the event of the death of the father, not only if the child was dependent, but also only if the dependent child was 406 U.S., at -174, and n. 12. invalidating discrimination among afterborn illegitimate children as to entitlement to a child's disability benefits under the Social Security Act, is similarly distinguishable. Under the somewhat related statutory matrix considered there, legitimate children and those capable of inheriting personal property under state intestacy law, and those illegitimate solely on account of a nonobvious defect in their parents' marriage, were eligible for benefits, even if they were born after the onset of the father's disability. *512 Other (illegitimate) afterborn children were conclusively denied any benefits, regardless of any showing of dependency. The Court held the discrimination among illegitimate afterborn children impermissible, rejecting the Secretary's claim that the classification was based upon considerations regarding trustworthy proof of dependency, because it could not accept the assertion: "[T]he blanket and conclusive exclusion of appellants' subclass of illegitimates is reasonably related to the prevention of spurious claims [of dependency]. Assuming that the appellants are in fact dependent on the claimant [father], it would not serve the purposes of the Act to conclusively deny them an opportunity to establish their dependency and their right to insurance benefits." Hence, it was held that "to conclusively deny one subclass benefits presumptively available to the other denies the former the equal protection of the laws guaranteed by the due process provision of the Fifth Amendment." See also v. ; cf. But this conclusiveness in denying benefits to some classes of afterborn illegitimate children, which belied the asserted legislative reliance on dependency in is absent here, for, as we have noted, any otherwise eligible child may qualify for survivorship benefits by showing contribution to support, or cohabitation, at the time of death. Cf. distinguishing summarily aff'd, It is, of course, not enough simply that any child of a deceased insured is eligible for benefits upon some showing *513 of dependency. In we found it impermissible to qualify the entitlement to dependent's benefits of a married woman in the uniformed services upon an individualized showing of her husband's actual dependence upon her for more than half his income, when no such showing of actual dependency was required of a married man in the uniformed services to obtain dependent's benefits on account of his wife. The invalidity of that gender-based discrimination rested upon the "overbroad" assumption, underlying the discrimination "that male workers' earnings are vital to the support of their families, while the earnings of female wage earners do not significantly contribute to their families' support." v. ; see n. 23. Here, by contrast, the statute does not broadly discriminate between legitimates and illegitimates without more, but is carefully tuned to alternative considerations. The presumption of dependency is withheld only in the absence of any significant indication of the likelihood of actual dependency. Moreover, we cannot say that the factors that give rise to a presumption of dependency lack any substantial relation to the likelihood of actual dependency. Rather, we agree with the assessment of the three-judge court as it originally ruled in Norton v. 11 :[16] "[I]t is clearly rational to presume the overwhelming number of legitimate children are actually dependent upon their parents for support. Likewise. the children of an invalid marriage *514 would typically live in the wage earner's home or be supported by him. When an order of support is entered by a court, it is reasonable to assume compliance occurred. A paternity decree, while not necessarily ordering support, would almost as strongly suggest support was subsequently obtained. Conceding that a written acknowledgment lacks the imprimatur of a judicial proceeding, it too establishes the basis for a rational presumption. Men do not customarily affirm in writing their responsibility for an illegitimate child unless the child is theirs and a man who has acknowledged a child is more likely to provide it support than one who does not." Similarly, we think, where state intestacy law provides that a child may take personal property from a father's estate, it may reasonably be thought that the child will more likely be dependent during the parent's life and at his death.[17] For in its embodiment of the popular *515 view within the jurisdiction of how a parent would have his property devolve among his children in the event of death, without specific directions, such legislation also reflects to some degree the popular conception within the jurisdiction of the felt parental obligation to such an "illegitimate" child in other circumstances, and thus something of the likelihood of actual parental support during, as well as after, life.[18] Accord, To be sure, none of these statutory criteria compels the extension of a presumption of dependency. But the constitutional question is not whether such a presumption is required, but whether it is permitted. Nor, in ratifying these statutory classifications, is our role to hypothesize independently on the desirability or feasibility of any possible alternative basis for presumption. These matters of practical judgment and empirical calculation are for Congress. Drawing upon its own practical experience, *516 Congress has tailored statutory classifications in accord with its calculations of the likelihood of actual support suggested by a narrow set of objective and apparently reasonable indicators. Our role is simply to determine whether Congress' assumptions are so inconsistent or insubstantial as not to be reasonably supportive of its conclusions that individualized factual inquiry in order to isolate each nondependent child in a given class of cases is unwarranted as an administrative exercise. In the end, the precise accuracy of Congress' calculations is not a matter of specialized judicial competence; and we have no basis to question their detail beyond the evident consistency and substantiality. Cf. United 380 U. S., at We cannot say that these expectations are unfounded, or so indiscriminate as to render the statute's classifications baseless. We conclude, in short, that, in failing to extend any presumption of dependency to appellees and others like them, the Act does not impermissibly discriminate against them as compared with legitimate children or those illegitimate children who are statutorily deemed dependent. Reversed. MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN and MR. |
Justice Alito | majority | false | Hawaii v. Office of Hawaiian Affairs | 2009-03-31T00:00:00 | null | https://www.courtlistener.com/opinion/145894/hawaii-v-office-of-hawaiian-affairs/ | https://www.courtlistener.com/api/rest/v3/clusters/145894/ | 2,009 | 2008-037 | 3 | 9 | 0 | This case presents the question whether Congress
stripped the State of Hawaii of its authority to alienate its
sovereign territory by passing a joint resolution to apolo
gize for the role that the United States played in over
throwing the Hawaiian monarchy in the late 19th century.
Relying on Congress’ joint resolution, the Supreme Court
of Hawaii permanently enjoined the State from alienating
certain of its lands, pending resolution of native Hawai
ians’ land claims that the court described as “unrelin
quished.” We reverse.
I
A
In 1893, “[a] so-called Committee of Safety, a group of
professionals and businessmen, with the active assistance
of John Stevens, the United States Minister to Hawaii,
acting with the United States Armed Forces, replaced the
[Hawaiian] monarchy with a provisional government.”
Rice v. Cayetano, 528 U.S. 495, 504–505 (2000). “That
government sought annexation by the United States,” id.,
at 505, which the United States granted, see Joint Resolu
tion to Provide for Annexing the Hawaiian Islands to the
2 HAWAII v. OFFICE OF HAWAIIAN AFFAIRS
Opinion of the Court
United States, No. 55, 30 Stat. 750 (hereinafter Newlands
Resolution). Pursuant to the Newlands Resolution, the
Republic of Hawaii “cede[d] absolutely and without re
serve to the United States of America all rights of sover
eignty of whatsoever kind” and further “cede[d] and trans
fer[red] to the United States the absolute fee and
ownership of all public, Government, or Crown lands,
public buildings or edifices, ports, harbors, military
equipment, and all other public property of every kind and
description belonging to the Government of the Hawaiian
Islands, together with every right and appurtenance
thereunto appertaining” (hereinafter ceded lands).1 Ibid.
The Newlands Resolution further provided that all “prop
erty and rights” in the ceded lands “are vested in the
United States of America.” Ibid.
Two years later, Congress established a government for
the Territory of Hawaii. See Act of Apr. 30, 1900, ch. 339,
31 Stat. 141 (hereinafter Organic Act). The Organic Act
reiterated the Newlands Resolution and made clear that
the new Territory consisted of the land that the United
States acquired in “absolute fee” under that resolution.
See §2, ibid. The Organic Act further provided:
“[T]he portion of the public domain heretofore known
as Crown land is hereby declared to have been, on [the
effective date of the Newlands Resolution], and prior
thereto, the property of the Hawaiian government,
and to be free and clear from any trust of or concern
ing the same, and from all claim of any nature what
soever, upon the rents, issues, and profits thereof. It
shall be subject to alienation and other uses as may be
provided by law.” §99, id., at 161; see also §91, id., at
159.
——————
1 “Crown lands” were lands formerly held by the Hawaiian monarchy.
“Public” and “Government” lands were other lands held by the Hawai
ian government.
Cite as: 556 U. S. ____ (2009) 3
Opinion of the Court
In 1959, Congress admitted Hawaii to the Union. See
Pub. L. 86–3, 73 Stat. 4 (hereinafter Admission Act).
Under the Admission Act, with exceptions not relevant
here, “the United States grant[ed] to the State of Hawaii,
effective upon its admission into the Union, the United
States’ title to all the public lands and other public prop
erty within the boundaries of the State of Hawaii, title to
which is held by the United States immediately prior to its
admission into the Union.” §5(b), id., at 5. These lands,
“together with the proceeds from the sale or other disposi
tion of [these] lands and the income therefrom, shall be
held by [the] State as a public trust” to promote various
public purposes, including supporting public education,
bettering conditions of Native Hawaiians, developing
home ownership, making public improvements, and pro
viding lands for public use. §5(f), id., at 6. Hawaii state
law also authorizes the State to use or sell the ceded
lands, provided that the proceeds are held in trust for the
benefit of the citizens of Hawaii. See, e.g., Haw. Rev. Stat.
§§171–45, 171–18 (1993).
In 1993, Congress enacted a joint resolution “to ac
knowledge the historic significance of the illegal overthrow
of the Kingdom of Hawaii, to express its deep regret to the
Native Hawaiian people, and to support the reconciliation
efforts of the State of Hawaii and the United Church of
Christ with Native Hawaiians.” Joint Resolution to Ac
knowledge the 100th Anniversary of the January 17, 1893
Overthrow of the Kingdom of Hawaii, Pub. L. 103–150,
107 Stat. 1510, 1513 (hereinafter Apology Resolution). In
a series of the preambular “whereas” clauses, Congress
made various observations about Hawaii’s history. For
example, the Apology Resolution states that “the indige
nous Hawaiian people never directly relinquished their
claims . . . over their national lands to the United States”
and that “the health and well-being of the Native Hawai
ian people is intrinsically tied to their deep feelings and
4 HAWAII v. OFFICE OF HAWAIIAN AFFAIRS
Opinion of the Court
attachment to the land.” Id., at 1512. In the same vein,
the resolution’s only substantive section—entitled “Ac
knowledgement and Apology”—states that Congress:
“(1) . . . acknowledges the historical significance of
this event which resulted in the suppression of the in
herent sovereignty of the Native Hawaiian people;
“(2) recognizes and commends efforts of reconcilia
tion initiated by the State of Hawaii and the United
Church of Christ with Native Hawaiians;
“(3) apologizes to Native Hawaiians on behalf of the
people of the United States for the overthrow of the
Kingdom of Hawaii on January 17, 1893 with the par
ticipation of agents and citizens of the United States,
and the deprivation of the rights of Native Hawaiians
to self-determination;
“(4) expresses its commitment to acknowledge the
ramifications of the overthrow of the Kingdom of Ha
waii, in order to provide a proper foundation for rec
onciliation between the United States and the Native
Hawaiian people; and
“(5) urges the President of the United States to also
acknowledge the ramifications of the overthrow of the
Kingdom of Hawaii and to support reconciliation ef
forts between the United States and the Native Ha
waiian people.” Id., at 1513.
Finally, §3 of the Apology Resolution states that “Nothing
in this Joint Resolution is intended to serve as a settle
ment of any claims against the United States.” Id., at
1514.
B
This suit involves a tract of former crown land on Maui,
now known as the “Leiali’i parcel,” that was ceded in
“absolute fee” to the United States at annexation and has
been held by the State since 1959 as part of the trust
Cite as: 556 U. S. ____ (2009) 5
Opinion of the Court
established by §5(f) of the Admission Act. The Housing
Finance and Development Corporation (HFDC)—Hawaii’s
affordable housing agency—received approval to remove
the Leiali’i parcel from the §5(f) trust and redevelop it. In
order to transfer the Leiali’i parcel out of the public trust,
HFDC was required to compensate respondent Office of
Hawaiian Affairs (OHA), which was established to receive
and manage funds from the use or sale of the ceded lands
for the benefit of native Hawaiians. Haw. Const., Art. XII,
§§4–6.
In this case, however, OHA demanded more than mone
tary compensation. Relying on the Apology Resolution,
respondent OHA demanded that HFDC include a dis
claimer preserving any native Hawaiian claims to owner
ship of lands transferred from the public trust for redevel
opment. HFDC declined to include the requested
disclaimer because “to do so would place a cloud on title,
rendering title insurance unavailable.” App. to Pet. for
Cert. 207a.
Again relying on the Apology Resolution, respondents
then sued the State, its Governor, HFDC (since renamed),
and its officials. Respondents sought “to enjoin the defen
dants from selling or otherwise transferring the Leiali’i
parcel to third parties and selling or otherwise transfer
ring to third parties any of the ceded lands in general until
a determination of the native Hawaiians’ claims to the
ceded lands is made.” Office of Hawaiian Affairs v. Hous
ing and Community Development Corp. of Hawaii, 117
Haw. 174, 189, 177 P.3d 884, 899 (2008). Respondents
“alleged that an injunction was proper because, in light of
the Apology Resolution, any transfer of ceded lands by the
State to third-parties would amount to a breach of trust
. . . .” Id., at 188, 177 P. 3d, at 898.
The state trial court entered judgment against respon
dents, but the Supreme Court of Hawaii vacated the lower
court’s ruling. Relying on a “plain reading of the Apology
6 HAWAII v. OFFICE OF HAWAIIAN AFFAIRS
Opinion of the Court
Resolution,” which “dictate[d]” its conclusion, id., at 212,
177 P. 3d, at 988, the State Supreme Court ordered “an
injunction against the defendants from selling or other
wise transferring to third parties (1) the Leiali’i parcel and
(2) any other ceded lands from the public lands trust until
the claims of the native Hawaiians to the ceded lands have
been resolved,” id., at 218, 177 P. 3d, at 928. In doing so,
the court rejected petitioners’ argument that “the State
has the undoubted and explicit power to sell ceded lands
pursuant to the terms of the Admission Act and pursuant
to state law.” Id., at 211, 177 P. 3d, at 920 (internal quo
tation marks and alterations omitted). We granted certio
rari. 555 U. S. ___ (2008).
II
Before turning to the merits, we first must address our
jurisdiction. According to respondents, the Supreme Court
of Hawaii “merely held that, in light of the ongoing recon
ciliation process, the sale of ceded lands would constitute a
breach of the State’s fiduciary duty to Native Hawaiians
under state law.” Brief for Respondents 17. Because
respondents believe that this case does not raise a federal
question, they urge us to dismiss for lack of jurisdiction.
Although respondents dwell at length on that argument,
see id., at 19–34, we need not tarry long to reject it. This
Court has jurisdiction whenever “a state court decision
fairly appears to rest primarily on federal law, or to be
interwoven with the federal law, and when the adequacy
and independence of any possible state law ground is not
clear from the face of the opinion.” Michigan v. Long, 463
U.S. 1032, 1040–1041 (1983). Far from providing a “plain
statement” that its decision rested on state law, id., at
1041, the State Supreme Court plainly held that its deci
sion was “dictate[d]” by federal law—in particular, the
Apology Resolution, see 117 Haw., at 212, 177 P. 3d, at
922. Indeed, the court explained that the Apology Resolu
Cite as: 556 U. S. ____ (2009) 7
Opinion of the Court
tion lies “[a]t the heart of [respondents’] claims,” that
respondents’ “current claim for injunctive relief is . . .
based largely upon the Apology Resolution,” and that
respondents’ arguments presuppose that the Apology
Resolution “changed the legal landscape and restructured
the rights and obligations of the State.” Id., at 189–190,
177 P. 3d, at 899–900 (internal quotation marks omitted).
The court noted that “[t]he primary question before this
court on appeal is whether, in light of the Apology Resolu
tion, this court should issue an injunction” against sale of
the trust lands, id., at 210, 177 P. 3d, at 920, and it con
cluded, “[b]ased on a plain reading” of the Apology Resolu
tion, that “Congress has clearly recognized that the native
Hawaiian people have unrelinquished claims over the
ceded lands,” id., at 191, 177 P. 3d, at 901.
Based on these and the remainder of the State Supreme
Court’s 77 references to the Apology Resolution, we have
no doubt that the decision below rested on federal law.2
We are therefore satisfied that this Court has jurisdiction.
See 28 U.S. C. §1257.
III
Turning to the merits, we must decide whether the
Apology Resolution “strips Hawaii of its sovereign author
ity to sell, exchange, or transfer” (Pet. for Cert. i) the lands
——————
2 Respondents argue that the Supreme Court of Hawaii relied on the
Apology Resolution “simply to support its factual determination that
Native Hawaiians have unresolved claims to the ceded lands.” Brief for
Respondents 21. Regardless of its factual determinations, however, the
lower court’s legal conclusions were, at the very least, “interwoven with
the federal law.” Michigan v. Long, 463 U.S. 1032, 1040 (1983). See
Office of Hawaiian Affairs v. Housing and Community Development
Corp. of Hawaii, 117 Haw. 174, 217, 218, 177 P.3d 884, 927, 928 (2008)
(“hold[ing]” that respondents’ legal claim “arose” only when “the Apol
ogy Resolution was signed into law on November 23, 1993”); id., at 211,
n. 25, 177 P.3d, at 921, n. 25 (emphasizing that “our holding is
grounded in Hawai‘i and federal law”). See also n. 4, infra.
8 HAWAII v. OFFICE OF HAWAIIAN AFFAIRS
Opinion of the Court
that the United States held in “absolute fee” (30 Stat. 750)
and “grant[ed] to the State of Hawaii, effective upon its
admission into the Union” (73 Stat. 5). We conclude that
the Apology Resolution has no such effect.
A
“We begin, as always, with the text of the statute.”
Permanent Mission of India to United Nations v. City of
New York, 551 U.S. 193, 197 (2007). The Apology Resolu
tion contains two substantive provisions. See 107 Stat.
1513–1514. Neither justifies the judgment below.
The resolution’s first substantive provision uses six
verbs, all of which are conciliatory or precatory. Specifi
cally, Congress “acknowledge[d] the historical signifi
cance” of the Hawaiian monarchy’s overthrow, “recog
nize[d] and commend[ed] efforts of reconciliation” with
native Hawaiians, “apologize[d] to [n]ative Hawaiians” for
the monarchy’s overthrow, “expresse[d] [Congress’s] com
mitment to acknowledge the ramifications of the over
throw,” and “urge[d] the President of the United States to
also acknowledge the ramifications of the overthrow . . . .”
§1. Such terms are not the kind that Congress uses to
create substantive rights—especially those that are en
forceable against the cosovereign States. See, e.g., Penn
hurst State School and Hospital v. Halderman, 451 U.S.
1, 17–18 (1981).3
——————
3 TheApology Resolution’s operative provisions thus stand in sharp
contrast with those of other “apologies,” which Congress intended to
have substantive effect. See, e.g., Civil Liberties Act of 1988, 102 Stat.
903, 50 U.S. C. App. §1989 (2000 ed.) (acknowledging and apologizing
“for the evacuation, relocation and internment” of Japanese citizens
during World War II and providing $20,000 in restitution to each
eligible individual); Radiation Exposure Compensation Act, 104 Stat.
920, notes following 42 U.S. C. §2210 (2000 ed. and Supp. V) (“apolo
giz[ing] on behalf of the Nation . . . for the hardships” endured by those
exposed to radiation from above-ground nuclear testing facilities and
providing $100,000 in compensation to each eligible individual).
Cite as: 556 U. S. ____ (2009) 9
Opinion of the Court
The Apology Resolution’s second and final substantive
provision is a disclaimer, which provides: “Nothing in this
Joint Resolution is intended to serve as a settlement of
any claims against the United States.” §3. By its terms,
§3 speaks only to those who may or may not have “claims
against the United States.” The court below, however,
held that the only way to save §3 from superfluity is to
construe it as a congressional recognition—and preserva
tion—of claims against Hawaii and as “the foundation (or
starting point) for reconciliation” between the State and
native Hawaiians. 117 Haw., at 192, 177 P. 3d, at 902.
“We must have regard to all the words used by Con
gress, and as far as possible give effect to them,” Louisville
& Nashville R. Co. v. Mottley, 219 U.S. 467, 475 (1911),
but that maxim is not a judicial license to turn an irrele
vant statutory provision into a relevant one. And we know
of no justification for turning an express disclaimer of
claims against one sovereign into an affirmative recogni
tion of claims against another.4 Cf. Pacific Bell Telephone
Co. v. linkLine Communications, Inc., 555 U. S. ___, ___
——————
4 The court below held that respondents “prevailed on the merits” by
showing that “Congress has clearly recognized that the native Hawai
ian people have unrelinquished claims over the ceded lands, which
were taken without consent or compensation and which the native
Hawaiian people are determined to preserve, develop, and transmit to
future generations.” 117 Haw., at 212, 177 P.3d, at 922. And it
further held that petitioners failed to show that the State has the
“power to sell ceded lands pursuant to the terms of the Admission Act.”
Id., at 211, 177 P. 3d, at 921 (internal quotation marks and alterations
omitted). Respondents now insist, however, that their claims are
“nonjusticiable” to the extent that they are grounded on “broader moral
and political” bases. Brief for Respondents 18. No matter how respon
dents characterize their claims, it is undeniable that they have asserted
title to the ceded lands throughout this litigation, see id., at 40, n. 15
(conceding the point), and it is undeniable that the Supreme Court of
Hawaii relied on those claims in issuing an injunction, which is a legal
(and hence justiciable) remedy—not a moral, political, or nonjusticiable
one.
10 HAWAII v. OFFICE OF HAWAIIAN AFFAIRS
Opinion of the Court
(2009) (slip op., at 17) (“Two wrong claims do not make one
that is right”). The Supreme Court of Hawaii erred in
reading §3 as recognizing claims inconsistent with the title
held in “absolute fee” by the United States (30 Stat. 750)
and conveyed to the State of Hawaii at statehood. See
supra, at 2–3.
B
Rather than focusing on the operative words of the law,
the court below directed its attention to the 37 “whereas”
clauses that preface the Apology Resolution. See 107 Stat.
1510–1513. “Based on a plain reading of” the “whereas”
clauses, the Supreme Court of Hawaii held that “Congress
has clearly recognized that the native Hawaiian people
have unrelinquished claims over the ceded lands.” 117
Haw., at 191, 177 P.3d, at 901. That conclusion is wrong
for at least three reasons.
First, “whereas” clauses like those in the Apology Reso
lution cannot bear the weight that the lower court placed
on them. As we recently explained in a different context,
“where the text of a clause itself indicates that it does not
have operative effect, such as ‘whereas’ clauses in federal
legislation . . . , a court has no license to make it do what it
was not designed to do.” District of Columbia v. Heller,
554 U. S. ___, ___, n. 3 (2008) (slip op., at 4, n. 3). See also
Yazoo & Mississippi Valley R. Co. v. Thomas, 132 U.S.
174, 188 (1889) (“[A]s the preamble is no part of the act,
and cannot enlarge or confer powers, nor control the words
of the act, unless they are doubtful or ambiguous, the
necessity of resorting to it to assist in ascertaining the
true intent and meaning of the legislature is in itself fatal
to the claim set up”).
Second, even if the “whereas” clauses had some legal
effect, they did not “chang[e] the legal landscape and
restructur[e] the rights and obligations of the State.” 117
Haw., at 190, 177 P. 3d, at 900. As we have emphasized,
Cite as: 556 U. S. ____ (2009) 11
Opinion of the Court
“repeals by implication are not favored and will not be
presumed unless the intention of the legislature to repeal
[is] clear and manifest.” National Assn. of Home Builders
v. Defenders of Wildlife, 551 U.S. 644, 662 (2007) (internal
quotation marks omitted). The Apology Resolution reveals
no indication—much less a “clear and manifest” one—that
Congress intended to amend or repeal the State’s rights
and obligations under Admission Act (or any other federal
law); nor does the Apology Resolution reveal any evidence
that Congress intended sub silentio to “cloud” the title that
the United States held in “absolute fee” and transferred to
the State in 1959. On that score, we find it telling that
even respondent OHA has now abandoned its argument,
made below, that “Congress . . . enacted the Apology Reso
lution and thus . . . change[d]” the Admission Act. App.
114a; see also Tr. of Oral Arg. 31, 37–38.
Third, the Apology Resolution would raise grave consti
tutional concerns if it purported to “cloud” Hawaii’s title to
its sovereign lands more than three decades after the
State’s admission to the Union. We have emphasized that
“Congress cannot, after statehood, reserve or convey sub
merged lands that have already been bestowed upon a
State.” Idaho v. United States, 533 U.S. 262, 280, n. 9
(2001) (internal quotation marks and alteration omitted);
see also id., at 284 (Rehnquist, C. J., dissenting) (“[T]he
consequences of admission are instantaneous, and it ig
nores the uniquely sovereign character of that event . . . to
suggest that subsequent events somehow can diminish
what has already been bestowed”). And that proposition
applies a fortiori where virtually all of the State’s public
lands—not just its submerged ones—are at stake. In light
of those concerns, we must not read the Apology Resolu
tion’s nonsubstantive “whereas” clauses to create a retro
active “cloud” on the title that Congress granted to the
State of Hawaii in 1959. See, e.g., Clark v. Martinez, 543
U.S. 371, 381–382 (2005) (the canon of constitutional
12 HAWAII v. OFFICE OF HAWAIIAN AFFAIRS
Opinion of the Court
avoidance “is a tool for choosing between competing plau
sible interpretations of a statutory text, resting on the
reasonable presumption that Congress did not intend the
alternative which raises serious constitutional doubts”).
* * *
When a state supreme court incorrectly bases a decision
on federal law, the court’s decision improperly prevents
the citizens of the State from addressing the issue in
question through the processes provided by the State’s
constitution. Here, the State Supreme Court incorrectly
held that Congress, by adopting the Apology Resolution,
took away from the citizens of Hawaii the authority to
resolve an issue that is of great importance to the people of
the State. Respondents defend that decision by arguing
that they have both state-law property rights in the land
in question and “broader moral and political claims for
compensation for the wrongs of the past.” Brief for Re
spondents 18. But we have no authority to decide ques
tions of Hawaiian law or to provide redress for past
wrongs except as provided for by federal law. The judg
ment of the Supreme Court of Hawaii is reversed, and the
case is remanded for further proceedings not inconsistent
with this opinion.
It is so ordered | This case presents the question whether Congress stripped the State of Hawaii of its authority to alienate its sovereign territory by passing a joint resolution to apolo gize for the role that the United States played in over throwing the Hawaiian monarchy in the late 19th century. Relying on Congress’ joint resolution, the Supreme Court of Hawaii permanently enjoined the State from alienating certain of its lands, pending resolution of native Hawai ians’ land claims that the court described as “unrelin quished.” We reverse. I A In 1893, “[a] so-called Committee of Safety, a group of professionals and businessmen, with the active assistance of John Stevens, the United States Minister to Hawaii, acting with the United States Armed Forces, replaced the [Hawaiian] monarchy with a provisional government.” “That government sought annexation by the United States,” 05, which the United States granted, see Joint Resolu tion to Provide for Annexing the Hawaiian Islands to the 2 HAWAII v. OFFICE OF HAWAIIAN AFFAIRS Opinion of the Court United States, No. 55, (hereinafter Newlands Resolution). Pursuant to the Newlands Resolution, the Republic of Hawaii “cede[d] absolutely and without re serve to the United States of America all rights of sover eignty of whatsoever kind” and further “cede[d] and trans fer[red] to the United States the absolute fee and ownership of all public, Government, or Crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the Government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining” (hereinafter ceded lands).1 The Newlands Resolution further provided that all “prop erty and rights” in the ceded lands “are vested in the United States of America.” Two years later, Congress established a government for the Territory of Hawaii. See Act of Apr. 30, 0, ch. 339, The Organic Act reiterated the Newlands Resolution and made clear that the new Territory consisted of the land that the United States acquired in “absolute fee” under that resolution. See The Organic Act further provided: “[T]he portion of the public domain heretofore known as Crown land is hereby declared to have been, on [the effective date of the Newlands Resolution], and prior thereto, the property of the Hawaiian government, and to be free and clear from any trust of or concern ing the same, and from all claim of any nature what soever, upon the rents, issues, and profits thereof. It shall be subject to alienation and other uses as may be provided by law.” ; see also at 159. —————— 1 “Crown lands” were lands formerly held by the Hawaiian monarchy. “Public” and “Government” lands were other lands held by the Hawai ian government. Cite as: 556 U. S. (2009) 3 Opinion of the Court In 1959, Congress admitted Hawaii to the Union. See Pub. L. 86–3, Under the Admission Act, with exceptions not relevant here, “the United States grant[ed] to the State of Hawaii, effective upon its admission into the Union, the United States’ title to all the public lands and other public prop erty within the boundaries of the State of Hawaii, title to which is held by the United States immediately prior to its admission into the Union.” These lands, “together with the proceeds from the sale or other disposi tion of [these] lands and the income therefrom, shall be held by [the] State as a public trust” to promote various public purposes, including supporting public education, bettering conditions of Native Hawaiians, developing home ownership, making public improvements, and pro viding lands for public use. Hawaii state law also authorizes the State to use or sell the ceded lands, provided that the proceeds are held in trust for the benefit of the citizens of Hawaii. See, e.g., Haw. Rev. Stat. 171–18 (1993). In 1993, Congress enacted a joint resolution “to ac knowledge the historic significance of the illegal overthrow of the Kingdom of Hawaii, to express its deep regret to the Native Hawaiian people, and to support the reconciliation efforts of the State of Hawaii and the United Church of Christ with Native ” Joint Resolution to Ac knowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, Pub. L. 103–150, 1513 (hereinafter Apology Resolution). In a series of the preambular “whereas” clauses, Congress made various observations about Hawaii’s history. For example, the Apology Resolution states that “the indige nous Hawaiian people never directly relinquished their claims over their national lands to the United States” and that “the health and well-being of the Native Hawai ian people is intrinsically tied to their deep feelings and 4 HAWAII v. OFFICE OF HAWAIIAN AFFAIRS Opinion of the Court attachment to the land.” In the same vein, the resolution’s only substantive section—entitled “Ac knowledgement and Apology”—states that Congress: “(1) acknowledges the historical significance of this event which resulted in the suppression of the in herent sovereignty of the Native Hawaiian people; “(2) recognizes and commends efforts of reconcilia tion initiated by the State of Hawaii and the United Church of Christ with Native Hawaiians; “(3) apologizes to Native Hawaiians on behalf of the people of the United States for the overthrow of the Kingdom of Hawaii on January 17, 1893 with the par ticipation of agents and citizens of the United States, and the deprivation of the rights of Native Hawaiians to self-determination; “(4) expresses its commitment to acknowledge the ramifications of the overthrow of the Kingdom of Ha waii, in order to provide a proper foundation for rec onciliation between the United States and the Native Hawaiian people; and “(5) urges the President of the United States to also acknowledge the ramifications of the overthrow of the Kingdom of Hawaii and to support reconciliation ef forts between the United States and the Native Ha waiian people.” Finally, of the Apology Resolution states that “Nothing in this Joint Resolution is intended to serve as a settle ment of any claims against the United States.” at 1514. B This suit involves a tract of former crown land on Maui, now known as the “Leiali’i parcel,” that was ceded in “absolute fee” to the United States at annexation and has been held by the State since 1959 as part of the trust Cite as: 556 U. S. (2009) 5 Opinion of the Court established by of the Admission Act. The Housing Finance and Development Corporation (HFDC)—Hawaii’s affordable housing agency—received approval to remove the Leiali’i parcel from the trust and redevelop it. In order to transfer the Leiali’i parcel out of the public trust, HFDC was required to compensate respondent Office of Hawaiian Affairs (OHA), which was established to receive and manage funds from the use or sale of the ceded lands for the benefit of native Haw. Const., Art. XII, In this case, however, OHA demanded more than mone tary compensation. Relying on the Apology Resolution, respondent OHA demanded that HFDC include a dis claimer preserving any native Hawaiian claims to owner ship of lands transferred from the public trust for redevel opment. HFDC declined to include the requested disclaimer because “to do so would place a cloud on title, rendering title insurance unavailable.” App. to Pet. for Cert. 207a. Again relying on the Apology Resolution, respondents then sued the State, its Governor, HFDC (since renamed), and its officials. Respondents sought “to enjoin the defen dants from selling or otherwise transferring the Leiali’i parcel to third parties and selling or otherwise transfer ring to third parties any of the ceded lands in general until a determination of the native Hawaiians’ claims to the ceded lands is made.” Office of Hawaiian Respondents “alleged that an injunction was proper because, in light of the Apology Resolution, any transfer of ceded lands by the State to third-parties would amount to a breach of trust” The state trial court entered judgment against respon dents, but the Supreme Court of Hawaii vacated the lower court’s ruling. Relying on a “plain reading of the Apology 6 HAWAII v. OFFICE OF HAWAIIAN AFFAIRS Opinion of the Court Resolution,” which “dictate[d]” its conclusion, the State Supreme Court ordered “an injunction against the defendants from selling or other wise transferring to third parties (1) the Leiali’i parcel and (2) any other ceded lands from the public lands trust until the claims of the native Hawaiians to the ceded lands have been resolved,” In doing so, the court rejected petitioners’ argument that “the State has the undoubted and explicit power to sell ceded lands pursuant to the terms of the Admission Act and pursuant to state law.” (internal quo tation marks and alterations omitted). We granted certio rari. 555 U. S. II Before turning to the merits, we first must address our jurisdiction. According to respondents, the Supreme Court of Hawaii “merely held that, in light of the ongoing recon ciliation process, the sale of ceded lands would constitute a breach of the State’s fiduciary duty to Native Hawaiians under state law.” Brief for Respondents 17. Because respondents believe that this case does not raise a federal question, they urge us to dismiss for lack of jurisdiction. Although respondents dwell at length on that argument, see at 19–34, we need not tarry long to reject it. This Court has jurisdiction whenever “a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.” 463 U.S. 1032, –1041 Far from providing a “plain statement” that its decision rested on state law, at 1041, the State Supreme Court plainly held that its deci sion was “dictate[d]” by federal law—in particular, the Apology Resolution, see 117 Haw., 177 P. 3d, at 922. Indeed, the court explained that the Apology Resolu Cite as: 556 U. S. (2009) 7 Opinion of the Court tion lies “[a]t the heart of [respondents’] claims,” that respondents’ “current claim for injunctive relief is based largely upon the Apology Resolution,” and that respondents’ arguments presuppose that the Apology Resolution “changed the legal landscape and restructured the rights and obligations of the State.” at 189–, 177 P. 3d, at –900 (internal quotation marks omitted). The court noted that “[t]he primary question before this court on appeal is whether, in light of the Apology Resolu tion, this court should issue an injunction” against sale of the trust lands, and it con cluded, “[b]ased on a plain reading” of the Apology Resolu tion, that “Congress has clearly recognized that the native Hawaiian people have unrelinquished claims over the ceded lands,” Based on these and the remainder of the State Supreme Court’s 77 references to the Apology Resolution, we have no doubt that the decision below rested on federal law.2 We are therefore satisfied that this Court has jurisdiction. See 28 U.S. C. III Turning to the merits, we must decide whether the Apology Resolution “strips Hawaii of its sovereign author ity to sell, exchange, or transfer” (Pet. for Cert. i) the lands —————— 2 Respondents argue that the Supreme Court of Hawaii relied on the Apology Resolution “simply to support its factual determination that Native Hawaiians have unresolved claims to the ceded lands.” Brief for Respondents 21. Regardless of its factual determinations, however, the lower court’s legal conclusions were, at the very least, “interwoven with the federal law.” See Office of Hawaiian 217, (“hold[ing]” that respondents’ legal claim “arose” only when “the Apol ogy Resolution was signed into law on November 23, 1993”); n. n. (emphasizing that “our holding is grounded in Hawai‘i and federal law”). See also n. 4, infra. 8 HAWAII v. OFFICE OF HAWAIIAN AFFAIRS Opinion of the Court that the United States held in “absolute fee” () and “grant[ed] to the State of Hawaii, effective upon its admission into the Union” (). We conclude that the Apology Resolution has no such effect. A “We begin, as always, with the text of the statute.” Permanent Mission of India to United The Apology Resolu tion contains two substantive provisions. See 107 Stat. 1513–1514. Neither justifies the judgment below. The resolution’s first substantive provision uses six verbs, all of which are conciliatory or precatory. Specifi cally, Congress “acknowledge[d] the historical signifi cance” of the Hawaiian monarchy’s overthrow, “recog nize[d] and commend[ed] efforts of reconciliation” with native Hawaiians, “apologize[d] to [n]ative Hawaiians” for the monarchy’s overthrow, “expresse[d] [Congress’s] com mitment to acknowledge the ramifications of the over throw,” and “urge[d] the President of the United States to also acknowledge the ramifications of the overthrow” Such terms are not the kind that Congress uses to create substantive rights—especially those that are en forceable against the cosovereign States. See, e.g., Penn hurst State School and Hospital v. Halderman, 451 U.S. 1, 17–18 (1981).3 —————— 3 TheApology Resolution’s operative provisions thus stand in sharp contrast with those of other “apologies,” which Congress intended to have substantive effect. See, e.g., Civil Liberties Act of 1988, 102 Stat. 903, 50 U.S. C. App. (2000 ed.) (acknowledging and apologizing “for the evacuation, relocation and internment” of Japanese citizens during World War II and providing $20,000 in restitution to each eligible individual); Radiation Exposure Compensation Act, 104 Stat. 920, notes following 42 U.S. C. §2 (2000 ed. and Supp. V) (“apolo giz[ing] on behalf of the Nation for the hardships” endured by those exposed to radiation from above-ground nuclear testing facilities and providing $100,000 in compensation to each eligible individual). Cite as: 556 U. S. (2009) 9 Opinion of the Court The Apology Resolution’s second and final substantive provision is a disclaimer, which provides: “Nothing in this Joint Resolution is intended to serve as a settlement of any claims against the United States.” By its terms, speaks only to those who may or may not have “claims against the United States.” The court below, however, held that the only way to save from superfluity is to construe it as a congressional recognition—and preserva tion—of claims against Hawaii and as “the foundation (or starting point) for reconciliation” between the State and native “We must have regard to all the words used by Con gress, and as far as possible give effect to them,” Louisville & Nashville R. (1), but that maxim is not a judicial license to turn an irrele vant statutory provision into a relevant one. And we know of no justification for turning an express disclaimer of claims against one sovereign into an affirmative recogni tion of claims against another.4 Cf. Pacific Bell Telephone Co. v. linkLine Communications, Inc., 555 U. S. —————— 4 The court below held that respondents “prevailed on the merits” by showing that “Congress has clearly recognized that the native Hawai ian people have unrelinquished claims over the ceded lands, which were taken without consent or compensation and which the native Hawaiian people are determined to preserve, develop, and transmit to future generations.” 117 Haw., And it further held that petitioners failed to show that the State has the “power to sell ceded lands pursuant to the terms of the Admission Act.” (internal quotation marks and alterations omitted). Respondents now insist, however, that their claims are “nonjusticiable” to the extent that they are grounded on “broader moral and political” bases. Brief for Respondents 18. No matter how respon dents characterize their claims, it is undeniable that they have asserted title to the ceded lands throughout this litigation, see (conceding the point), and it is undeniable that the Supreme Court of Hawaii relied on those claims in issuing an injunction, which is a legal (and hence justiciable) remedy—not a moral, political, or nonjusticiable one. 10 HAWAII v. OFFICE OF HAWAIIAN AFFAIRS Opinion of the Court (2009) (slip op., at 17) (“Two wrong claims do not make one that is right”). The Supreme Court of Hawaii erred in reading as recognizing claims inconsistent with the title held in “absolute fee” by the United States () and conveyed to the State of Hawaii at statehood. See at 2–3. B Rather than focusing on the operative words of the law, the court below directed its attention to the 37 “whereas” clauses that preface the Apology Resolution. See 107 Stat. 1510–1513. “Based on a plain reading of” the “whereas” clauses, the Supreme Court of Hawaii held that “Congress has clearly recognized that the native Hawaiian people have unrelinquished claims over the ceded lands.” 117 Haw., That conclusion is wrong for at least three reasons. First, “whereas” clauses like those in the Apology Reso lution cannot bear the weight that the lower court placed on them. As we recently explained in a different context, “where the text of a clause itself indicates that it does not have operative effect, such as ‘whereas’ clauses in federal legislation a court has no license to make it do what it was not designed to do.” District of Columbia v. Heller, 554 U. S. n. 3 (slip op., at 4, n. 3). See also Yazoo & Mississippi Valley R. Co. v. Thomas, 132 U.S. 174, (9) (“[A]s the preamble is no part of the act, and cannot enlarge or confer powers, nor control the words of the act, unless they are doubtful or ambiguous, the necessity of resorting to it to assist in ascertaining the true intent and meaning of the legislature is in itself fatal to the claim set up”). Second, even if the “whereas” clauses had some legal effect, they did not “chang[e] the legal landscape and restructur[e] the rights and obligations of the State.” 117 Haw., at As we have emphasized, Cite as: 556 U. S. (2009) 11 Opinion of the Court “repeals by implication are not favored and will not be presumed unless the intention of the legislature to repeal [is] clear and manifest.” National Assn. of Home Builders v. Defenders of Wildlife, (internal quotation marks omitted). The Apology Resolution reveals no indication—much less a “clear and manifest” one—that Congress intended to amend or repeal the State’s rights and obligations under Admission Act (or any other federal law); nor does the Apology Resolution reveal any evidence that Congress intended sub silentio to “cloud” the title that the United States held in “absolute fee” and transferred to the State in 1959. On that score, we find it telling that even respondent OHA has now abandoned its argument, made below, that “Congress enacted the Apology Reso lution and thus change[d]” the Admission Act. App. 114a; see also Tr. of Oral Arg. 31, 37–38. Third, the Apology Resolution would raise grave consti tutional concerns if it purported to “cloud” Hawaii’s title to its sovereign lands more than three decades after the State’s admission to the Union. We have emphasized that “Congress cannot, after statehood, reserve or convey sub merged lands that have already been bestowed upon a State.” (2001) (internal quotation marks and alteration omitted); see also (“[T]he consequences of admission are instantaneous, and it ig nores the uniquely sovereign character of that event to suggest that subsequent events somehow can diminish what has already been bestowed”). And that proposition applies a fortiori where virtually all of the State’s public lands—not just its submerged ones—are at stake. In light of those concerns, we must not read the Apology Resolu tion’s nonsubstantive “whereas” clauses to create a retro active “cloud” on the title that Congress granted to the State of Hawaii in 1959. See, e.g., Clark v. Martinez, 543 U.S. 371, 381–382 (2005) (the canon of constitutional 12 HAWAII v. OFFICE OF HAWAIIAN AFFAIRS Opinion of the Court avoidance “is a tool for choosing between competing plau sible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts”). * * * When a state supreme court incorrectly bases a decision on federal law, the court’s decision improperly prevents the citizens of the State from addressing the issue in question through the processes provided by the State’s constitution. Here, the State Supreme Court incorrectly held that Congress, by adopting the Apology Resolution, took away from the citizens of Hawaii the authority to resolve an issue that is of great importance to the people of the State. Respondents defend that decision by arguing that they have both state-law property rights in the land in question and “broader moral and political claims for compensation for the wrongs of the past.” Brief for Re spondents 18. But we have no authority to decide ques tions of Hawaiian law or to provide redress for past wrongs except as provided for by federal law. The judg ment of the Supreme Court of Hawaii is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered |
Justice Douglas | dissenting | false | United States v. Armour & Co. | 1971-06-01T00:00:00 | null | https://www.courtlistener.com/opinion/108351/united-states-v-armour-co/ | https://www.courtlistener.com/api/rest/v3/clusters/108351/ | 1,971 | 1970-116 | 1 | 4 | 3 | The antitrust decree before us last Term in United States v. Armour & Co., 398 U.S. 268, is here again in a new posture. Under the original decree of 1920 the defendants were required to abandon their interests in a wide variety of food and nonfood lines. They were required to divest themselves of any interest in the businesses of "manufacturing, jobbing, selling, transporting. . . distributing, or otherwise dealing in" some 114 specified food products and some 30 other products. *684 They were enjoined from "owning, either directly or indirectly . . . any capital stock or other interests whatsoever in any corporation . . . which is in the business, in the United States, of manufacturing, jobbing, selling, transporting . . . distributing, or otherwise dealing in any" of the prohibited products. Under the decree the District Court retained jurisdiction "for the purpose of taking such other action or adding to the foot of this decree such other relief, if any, as may become necessary or appropriate for the carrying out and enforcement of this decree."
Armour, one of the parties to the decree, is now the second largest meatpacker in the United States with total assets of almost $700 million and total sales in 1967 of approximately $2,150,000,000. In addition to meatpacking, Armour manufactures, processes, and sells various nonprohibited products. In early 1969 the Government filed a petition in Federal District Court to make General Host Corp., a company engaged in the manufacture and sale of numerous food products, a party to the decree and forbid it from acquiring control of Armour. The District Court held that the decree prohibited Armour from holding any interest in a company handling any of the prohibited products but did not prohibit such a company from acquiring Armour. The Government appealed the decision arguing that acquisition by General Host of a majority of Armour's stock would be in violation of the decree and General Host should have been made a party to the decree so that an injunction could issue. We noted probable jurisdiction. 396 U.S. 811.
In the interim, General Host entered into an agreement to sell its controlling stock interest in Armour to Greyhound, a regulated motor carrier. The Interstate Commerce Commission approved the acquisition. Following *685 Greyhound's acquisition, the Court dismissed the case as moot. 398 U.S. 268.
The Government then filed a new petition in the District Court alleging (as it had against General Host) that Greyhound is engaged in businesses forbidden to Armour, or any firm in which Armour has a direct or indirect interest, and therefore Greyhound's acquisition violates the decree. The petition prayed that Greyhound be brought before the Court under § 5 of the Sherman Act and that an order supplemental to the original decree be entered enjoining Greyhound from acquiring any additional stock or exercising control over or influencing the business affairs of Armour, and requiring Greyhound to divest itself of the Armour stock. The District Court dismissed the Government's complaint, ruling that since Greyhound was not a party to the original decree, Greyhound may not be enjoined from "committing any acts on the ground that they are prohibited by the decree." The court also rejected the Government's argument that acquisition of the Armour stock placed the two companies in a "corporate relationship" which was prohibited by the decree. The court stated "the decree does not speak in terms of corporate relationships; it speaks in terms of the defendants dealing in the specified lines of commerce. . . ." The Government appealed.
The Sherman Act (15 U.S. C. § 5) provides:
"Whenever it shall appear to the court before which any proceeding under section 4 of this title may be pending, that the ends of justice require that other parties should be brought before the court, the court may cause them to be summoned, whether they reside in the district in which the court is held or not; and subpoenas to that end may be served in any district by the marshal thereof."
*686 Under § 5 and the All Writs Act (28 U.S. C. § 1651 (a)) the District Court has ample power to prevent frustration of the original decree.
Greyhound may well have devised a plan which would render the original decree nugatory.
Under the decree, none of the meatpackers could own a chain of grocery stores. Yet under the interpretation of the District Court a chain of grocery stores could acquire a meatpacking company. I do not view the decree so narrowly. The evil at which the decree is aimed is combining meatpackers with companies in other food product areas.
The authorities support the proposition that judges who construe, interpret, and enforce consent decrees look at the evil which the decree was designed to rectify. See Note, Flexibility and Finality in Antitrust Consent Decrees, 80 Harv. L. Rev. 1303, 1315.[*] My interpretation of the evil at which this decree was aimed is the same as that of Mr. Justice Cardozo, writing for this Court in United States v. Swift & Co., 286 U.S. 106. As we stated in Chrysler Corp. v. United States, 316 U.S. 556, 562, the test for reviewing modifications is "whether the change served to effectuate or to thwart the basic purpose of the original consent decree."
Neither Hughes v. United States, 342 U.S. 353, nor United States v. Atlantic Refining Co., 360 U.S. 19, relied on by the Court, is to the contrary. Hughes involved a Government attempt to require the trustee to sell stock in a voting trust where the consent decree expressly allowed Hughes a choice of selling the stock himself or placing the stock in a voting trust "until Howard R. Hughes shall have sold his holdings of stock." Atlantic *687 Refining was a case where for 16 years, right until the eve of the litigation, both parties had construed the decree in one way. Then the Government changed its interpretation not because it would effectuate the purposes of the decree but because it "would more nearly effectuate `the basic purpose of the Elkins and Interstate Commerce Acts.' " 360 U.S., at 23.
The evil at which the present decree is aimedcombining meatpackers with companies in other food product areasis present whether Armour purchases a company dealing in the various prohibited food lines or whether that company purchases Armour. When any company purchases Armour it acquires not only Armour's assets and liabilities, but also Armour's legal disabilities. And one of Armour's legal disabilities is that Armour cannot be combined with a company in the various food lines set out in the decree.
I read the decree to prohibit any combination of the meatpacking company defendants with companies dealing in various food lines.
In the District Court the Government offered an affidavit which showed that Greyhound deals in food products through its divisions and wholly owned subsidiaries, which provide industrial catering services, and operates restaurants, cafeterias, and other eating facilities. The affidavit states that in 1969 Greyhound had revenues of about $124 million from food operations which accounted for over 16% of Greyhound's total revenues that year. Greyhound has contended that it operates no grocery business and only buys raw foodstuffs and sells prepared meals. Thus, Greyhound argues, it can acquire Armour even if it is made a party to the decree because the decree does not prohibit meatpackers from entering the restaurant business. I do not pass on this contention. Rather, *688 I would reverse the judgment of the District Court and remand the case to that court for any further proceedings which are necessary to determine if Greyhound's acquisition of Armour violates the decree. If it does, then the District Court should make Greyhound a party to that decree.
| The antitrust decree before us last Term in United is here again in a new posture. Under the original decree of 1920 the defendants were required to abandon their interests in a wide variety of food and nonfood lines. They were required to divest themselves of any interest in the businesses of "manufacturing, jobbing, selling, transporting. distributing, or otherwise dealing in" some 114 specified food products and some 30 other products. *684 They were enjoined from "owning, either directly or indirectly any capital stock or other interests whatsoever in any corporation which is in the business, in the United States, of manufacturing, jobbing, selling, transporting distributing, or otherwise dealing in any" of the prohibited products. Under the decree the District Court retained jurisdiction "for the purpose of taking such other action or adding to the foot of this decree such other relief, if any, as may become necessary or appropriate for the carrying out and enforcement of this decree." Armour, one of the parties to the decree, is now the second largest meatpacker in the United States with total assets of almost $700 million and total sales in 1967 of approximately $2,150,000,000. In addition to meatpacking, Armour manufactures, processes, and sells various nonprohibited products. In early 1969 the Government filed a petition in Federal District Court to make General Host Corp., a company engaged in the manufacture and sale of numerous food products, a party to the decree and forbid it from acquiring control of Armour. The District Court held that the decree prohibited Armour from holding any interest in a company handling any of the prohibited products but did not prohibit such a company from acquiring Armour. The Government appealed the decision arguing that acquisition by General Host of a majority of Armour's stock would be in violation of the decree and General Host should have been made a party to the decree so that an injunction could issue. We noted probable jurisdiction. In the interim, General Host entered into an agreement to sell its controlling stock interest in Armour to Greyhound, a regulated motor carrier. The Interstate Commerce Commission approved the acquisition. Following *685 Greyhound's acquisition, the Court dismissed the case as moot. The Government then filed a new petition in the District Court alleging (as it had against General Host) that Greyhound is engaged in businesses forbidden to Armour, or any firm in which Armour has a direct or indirect interest, and therefore Greyhound's acquisition violates the decree. The petition prayed that Greyhound be brought before the Court under 5 of the Sherman Act and that an order supplemental to the original decree be entered enjoining Greyhound from acquiring any additional stock or exercising control over or influencing the business affairs of Armour, and requiring Greyhound to divest itself of the Armour stock. The District Court dismissed the Government's complaint, ruling that since Greyhound was not a party to the original decree, Greyhound may not be enjoined from "committing any acts on the ground that they are prohibited by the decree." The court also rejected the Government's argument that acquisition of the Armour stock placed the two companies in a "corporate relationship" which was prohibited by the decree. The court stated "the decree does not speak in terms of corporate relationships; it speaks in terms of the defendants dealing in the specified lines of commerce." The Government appealed. The Sherman Act (15 U.S. C. 5) provides: "Whenever it shall appear to the court before which any proceeding under section 4 of this title may be pending, that the ends of justice require that other parties should be brought before the court, the court may cause them to be summoned, whether they reside in the district in which the court is held or not; and subpoenas to that end may be served in any district by the marshal thereof." *686 Under 5 and the All Writs Act (28 U.S. C. 1651 (a)) the District Court has ample power to prevent frustration of the original decree. Greyhound may well have devised a plan which would render the original decree nugatory. Under the decree, none of the meatpackers could own a chain of grocery stores. Yet under the interpretation of the District Court a chain of grocery stores could acquire a meatpacking company. I do not view the decree so narrowly. The evil at which the decree is aimed is combining meatpackers with companies in other food product areas. The authorities support the proposition that judges who construe, interpret, and enforce consent decrees look at the evil which the decree was designed to rectify. See Note, Flexibility and Finality in Antitrust Consent Decrees,[*] My interpretation of the evil at which this decree was aimed is the same as that of Mr. Justice Cardozo, writing for this Court in United As we stated in Chrysler the test for reviewing modifications is "whether the change served to effectuate or to thwart the basic purpose of the original consent decree." Neither nor United relied on by the Court, is to the contrary. Hughes involved a Government attempt to require the trustee to sell stock in a voting trust where the consent decree expressly allowed Hughes a choice of selling the stock himself or placing the stock in a voting trust "until Howard R. Hughes shall have sold his holdings of stock." Atlantic *687 Refining was a case where for 16 years, right until the eve of the litigation, both parties had construed the decree in one way. Then the Government changed its interpretation not because it would effectuate the purposes of the decree but because it "would more nearly effectuate `the basic purpose of the Elkins and Interstate Commerce Acts.' " The evil at which the present decree is aimedcombining meatpackers with companies in other food product areasis present whether Armour purchases a company dealing in the various prohibited food lines or whether that company purchases Armour. When any company purchases Armour it acquires not only Armour's assets and liabilities, but also Armour's legal disabilities. And one of Armour's legal disabilities is that Armour cannot be combined with a company in the various food lines set out in the decree. I read the decree to prohibit any combination of the meatpacking company defendants with companies dealing in various food lines. In the District Court the Government offered an affidavit which showed that Greyhound deals in food products through its divisions and wholly owned subsidiaries, which provide industrial catering services, and operates restaurants, cafeterias, and other eating facilities. The affidavit states that in 1969 Greyhound had revenues of about $124 million from food operations which accounted for over 16% of Greyhound's total revenues that year. Greyhound has contended that it operates no grocery business and only buys raw foodstuffs and sells prepared meals. Thus, Greyhound argues, it can acquire Armour even if it is made a party to the decree because the decree does not prohibit meatpackers from entering the restaurant business. I do not pass on this contention. Rather, *688 I would reverse the judgment of the District Court and remand the case to that court for any further proceedings which are necessary to determine if Greyhound's acquisition of Armour violates the decree. If it does, then the District Court should make Greyhound a party to that decree. |
per_curiam | per_curiam | true | Lee v. Thornton | 1975-02-18T00:00:00 | null | https://www.courtlistener.com/opinion/109189/lee-v-thornton/ | https://www.courtlistener.com/api/rest/v3/clusters/109189/ | 1,975 | 1974-040 | 1 | 7 | 0 | Appellants brought actions in the District Court for the District of Vermont that challenged the constitutionality, facially and as applied, of various provisions of the customs laws, 46 Stat. 717 and 757, as amended, 19 U.S. C. §§ 1460 and 1618, that mandate procedures to effect forfeiture and remission or mitigation of penalties imposed after Border Patrol agents apprehended them and seized their vehicles when they crossed the border from Canada without passing through a customs station. The complaints sought (1) declaratory judgments that the challenged provisions were unconstitutional, (2) injunctions against their enforcement, (3) mandamus relief requiring the return of moneys paid as mitigated forfeitures or penalties based on violations of the customs laws, and (4) damages. A three-judge court was convened. The court held that it had jurisdiction *140 under the Tucker Act, 28 U.S. C. § 1346 (a) (2), rejected appellants' constitutional claims, enjoined appellees from applying the customs laws except as construed by the court, declined to remit appellants' fines, and returned to the single-judge District Court the question of damages.
The District Court held that it had jurisdiction of the complaints under the Tucker Act, and did not address other alternative bases of jurisdiction asserted in the complaints. The jurisdiction of the district courts under the Tucker Act over "[a]ny . . . civil action or claim against the United States . . . founded either upon the Constitution, or any Act of Congress . . ." does not include jurisdiction over appellants' claims to enjoin enforcement of the challenged provisions of the customs laws. The Tucker Act empowers district courts to award damages but not to grant injunctive or declaratory relief. Richardson v. Morris, 409 U.S. 464 (1973); United States v. King, 395 U.S. 1 (1969); United States v. Sherwood, 312 U.S. 584, 589-591 (1941). It follows that the three-judge court was improperly convened, and this Court therefore has no jurisdiction to entertain the appeal based on the District Court's refusal to grant injunctive relief founded on appellants' additional constitutional claims. Appellants' motion for leave to proceed in forma pauperis is granted, the judgment of the District Court is vacated, and the case is remanded for consideration of appellants' other asserted bases of jurisdiction.
So ordered.
MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL took no part in the consideration or decision of this case | Appellants brought actions in the District Court for the District of Vermont that challenged the constitutionality, facially and as applied, of various provisions of the customs laws, and 757, as amended, 19 U.S. C. 1460 and 1618, that mandate procedures to effect forfeiture and remission or mitigation of penalties imposed after Border Patrol agents apprehended them and seized their vehicles when they crossed the border from Canada without passing through a customs station. The complaints sought (1) declaratory judgments that the challenged provisions were unconstitutional, (2) injunctions against their enforcement, (3) mandamus relief requiring the return of moneys paid as mitigated forfeitures or penalties based on violations of the customs laws, and (4) damages. A three-judge court was convened. The court held that it had jurisdiction *140 under the Tucker Act, 28 U.S. C. 1346 (a) (2), rejected appellants' constitutional claims, enjoined appellees from applying the customs laws except as construed by the court, declined to remit appellants' fines, and returned to the single-judge District Court the question of damages. The District Court held that it had jurisdiction of the complaints under the Tucker Act, and did not address other alternative bases of jurisdiction asserted in the complaints. The jurisdiction of the district courts under the Tucker Act over "[a]ny civil action or claim against the United States founded either upon the Constitution, or any Act of Congress" does not include jurisdiction over appellants' claims to enjoin enforcement of the challenged provisions of the customs laws. The Tucker Act empowers district courts to award damages but not to grant injunctive or declaratory relief. ; United ; United It follows that the three-judge court was improperly convened, and this Court therefore has no jurisdiction to entertain the appeal based on the District Court's refusal to grant injunctive relief founded on appellants' additional constitutional claims. Appellants' motion for leave to proceed in forma pauperis is granted, the judgment of the District Court is vacated, and the case is remanded for consideration of appellants' other asserted bases of jurisdiction. So ordered. MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL took no part in the consideration or decision of this case |
Justice Breyer | majority | false | Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc. | 2015-01-20T00:00:00 | null | https://www.courtlistener.com/opinion/2771248/teva-pharmaceuticals-usa-inc-v-sandoz-inc/ | https://www.courtlistener.com/api/rest/v3/clusters/2771248/ | 2,015 | 2014-009 | 1 | 7 | 2 | In Markman v. Westview Instruments, Inc., 517 U.S.
370 (1996), we explained that a patent claim is that “por
tion of the patent document that defines the scope of the
patentee’s rights.” Id., at 372. We held that “the con
struction of a patent, including terms of art within its
claim,” is not for a jury but “exclusively” for “the court” to
determine. Ibid. That is so even where the construction
of a term of art has “evidentiary underpinnings.” Id., at
390.
Today’s case involves claim construction with “eviden
tiary underpinnings.” See Part III, infra. And, it requires
us to determine what standard the Court of Appeals
should use when it reviews a trial judge’s resolution of an
underlying factual dispute. Should the Court of Appeals
review the district court’s factfinding de novo as it would
review a question of law? Or, should it review that fact-
finding as it would review a trial judge’s factfinding in
other cases, namely by taking them as correct “unless
clearly erroneous?” See Fed. Rule Civ. Proc. 52(a)(6). We
hold that the appellate court must apply a “clear error,”
2 TEVA PHARMACEUTICALS USA, INC. v. SANDOZ, INC.
Opinion of the Court
not a de novo, standard of review.
I
The basic dispute in this case concerns the meaning of
the words “molecular weight” as those words appear in a
patent claim. The petitioners, Teva Pharmaceuticals
(along with related firms), own the relevant patent. The
patent covers a manufacturing method for Copaxone, a
drug used to treat multiple sclerosis. The drug’s active
ingredient, called “copolymer-1,” is made up of molecules
of varying sizes. App. 1143a. And the relevant claim
describes that ingredient as having “a molecular weight of
5 to 9 kilodaltons.” Id., at 1145a.
The respondents, Sandoz, Inc. (and several other firms),
tried to market a generic version of Copaxone. Teva sued
Sandoz for patent infringement. 810 F. Supp. 2d 578, 581
(SDNY 2011). Sandoz defended the suit by arguing that
the patent was invalid. Ibid. The Patent Act requires
that a claim “particularly poin[t] out and distinctly clai[m]
the subject matter which the applicant regards as his
invention.” 35 U.S. C. §112 ¶2 (2006 ed.); see Nautilus,
Inc. v. Biosig Instruments, Inc., 572 U. S. ___, ___, n. 1
(2014) (slip op., at 3, n. 1)). The phrase “molecular weight
of 5 to 9 kilodaltons,” said Sandoz, did not satisfy this
requirement.
The reason that the phrase is fatally indefinite, Sandoz
argued, is that, in the context of this patent claim, the
term “molecular weight” might mean any one of three
different things. The phrase might refer (1) to molecular
weight as calculated by the weight of the molecule that is
most prevalent in the mix that makes up copolymer-1.
(The scientific term for molecular weight so calculated is,
we are told, “peak average molecular weight.”) The phrase
might refer (2) to molecular weight as calculated by taking
all the different-sized molecules in the mix that makes up
copolymer-1 and calculating the average weight, i.e.,
Cite as: 574 U. S. ____ (2015) 3
Opinion of the Court
adding up the weight of each molecule and dividing by the
number of molecules. (The scientific term for molecular
weight so calculated is, we are told, “number average
molecular weight.”) Or, the phrase might refer (3) to
molecular weight as calculated by taking all the different-
sized molecules in the mix that makes up copolymer-1 and
calculating their average weight while giving heavier
molecules a weight-related bonus when doing so. (The
scientific term for molecular weight so calculated, we are
told, is “weight average molecular weight.”) See 723 F.3d
1363, 1367 (CA Fed. 2013); App. 124a. In Sandoz’s view,
since Teva’s patent claim does not say which method of
calculation should be used, the claim’s phrase “molecular
weight” is indefinite, and the claim fails to satisfy the
critical patent law requirement.
The District Court, after taking evidence from experts,
concluded that the patent claim was sufficiently definite.
Among other things, it found that in context a skilled
artisan would understand that the term “molecular
weight” referred to molecular weight as calculated by the
first method, i.e., “peak average molecular weight.” 810
F. Supp. 2d, at 596; see Nautilus, supra, at ___ (slip op., at
12) (“[T]he definiteness inquiry trains on the understand
ing of a skilled artisan at the time of the patent applica
tion”). In part for this reason, the District Court held the
patent valid. 810 F. Supp. 2d, at 596.
On appeal, the Federal Circuit held to the contrary. It
found that the term “molecular weight” was indefinite.
And it consequently held the patent invalid. 723 F.3d, at
1369. In reaching this conclusion, the Federal Circuit
reviewed de novo all aspects of the District Court’s claim
construction, including the District Court’s determination
of subsidiary facts. Id., at 1369, 1373; see also Light-
ing Ballast Control LLC v. Philips Electronics North
Am. Corp., 744 F.3d 1272, 1276–1277 (CA Fed. 2014) (en
banc) (reaffirming de novo review of district court claim
4 TEVA PHARMACEUTICALS USA, INC. v. SANDOZ, INC.
Opinion of the Court
construction).
Teva filed a petition for certiorari. And we granted that
petition. The Federal Circuit reviews the claim construc
tion decisions of federal district courts throughout the
Nation, and we consequently believe it important to clarify
the standard of review that it must apply when doing so.
II
A
Federal Rule of Civil Procedure 52(a)(6) states that a
court of appeals “must not . . . set aside” a district court’s
“[f ]indings of fact” unless they are “clearly erroneous.” In
our view, this rule and the standard it sets forth must
apply when a court of appeals reviews a district court’s
resolution of subsidiary factual matters made in the
course of its construction of a patent claim. We have made
clear that the Rule sets forth a “clear command.” Ander-
son v. Bessemer City, 470 U.S. 564, 574 (1985). “It does
not make exceptions or purport to exclude certain catego
ries of factual findings from the obligation of a court of
appeals to accept a district court’s findings unless clearly
erroneous.” Pullman-Standard v. Swint, 456 U.S. 273,
287 (1982). Accordingly, the Rule applies to both subsidi
ary and ultimate facts. Ibid. And we have said that,
when reviewing the findings of a “ ‘district court sitting
without a jury, appellate courts must constantly have in
mind that their function is not to decide factual issues
de novo.’ ” Anderson, supra, at 573 (quoting Zenith Radio
Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123
(1969)).
Even if exceptions to the Rule were permissible, we
cannot find any convincing ground for creating an excep
tion to that Rule here. The Rules Advisory Committee
pointed out that, in general, exceptions “would tend to
undermine the legitimacy of the district courts . . . , multi
ply appeals . . . , and needlessly reallocate judicial author
Cite as: 574 U. S. ____ (2015) 5
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ity.” Advisory Committee’s 1985 Note on subd. (a) of Fed.
Rule Civ. Proc. 52, 28 U.S. C. App., pp. 908–909; see also
Anderson, supra, at 574–575 (de novo review of fac-
tual findings “would very likely contribute only negligibly”
to accuracy “at a huge cost in diversion of judicial
resources”).
Our opinion in Markman neither created, nor argued
for, an exception to Rule 52(a). The question presented in
that case was a Seventh Amendment question: Should a
jury or a judge construe patent claims? 517 U.S., at 372.
We pointed out that history provides no clear answer. Id.,
at 388. The task primarily involves the construction of
written instruments. Id., at 386, 388, 389. And that task
is better matched to a judge’s skills. Id., at 388 (“The
construction of written instruments is one of those things
that judges often do and are likely to do better than jurors
unburdened by training in exegesis”). We consequently
held that claim construction falls “exclusively within the
province of the court,” not that of the jury. Id., at 372.
When describing claim construction we concluded that it
was proper to treat the ultimate question of the proper
construction of the patent as a question of law in the way
that we treat document construction as a question of law.
Id., at 388–391. But this does not imply an exception to
Rule 52(a) for underlying factual disputes. We used the
term “question of law” while pointing out that a judge, in
construing a patent claim, is engaged in much the same
task as the judge would be in construing other written
instruments, such as deeds, contracts, or tariffs. Id., at
384, 386, 388, 389; see also Motion Picture Patents Co. v.
Universal Film Mfg. Co., 243 U.S. 502, 510 (1917) (patent
claims are “aptly likened to the description in a deed,
which sets the bounds to the grant which it contains”);
Goodyear Dental Vulcanite Co. v. Davis, 102 U.S. 222, 227
(1880) (analogizing patent construction to the construction
of other written instruments like contracts). Construction
6 TEVA PHARMACEUTICALS USA, INC. v. SANDOZ, INC.
Opinion of the Court
of written instruments often presents a “question solely of
law,” at least when the words in those instruments are
“used in their ordinary meaning.” Great Northern R. Co.
v. Merchants Elevator Co., 259 U.S. 285, 291 (1922). But
sometimes, say when a written instrument uses “technical
words or phrases not commonly understood,” id., at 292,
those words may give rise to a factual dispute. If so, ex
trinsic evidence may help to “establish a usage of trade or
locality.” Ibid. And in that circumstance, the “determina
tion of the matter of fact” will “preced[e]” the “function of
construction.” Ibid.; see also 12 R. Lord, Williston on
Contracts §§34:1, p. 2, 34:19, p. 174 (4th ed. 2012) (In
contract interpretation, the existence of a “usage”—a
“practice or method” in the relevant industry—“is a ques
tion of fact” (internal quotation marks omitted)). This
factual determination, like all other factual determina
tions, must be reviewed for clear error. See Pullman-
Standard, supra at 287 (The Rule does not “exclude cer
tain categories of factual findings” and applies to both
“subsidiary” and “ultimate” facts (internal quotation
marks omitted)).
Accordingly, when we held in Markman that the ulti
mate question of claim construction is for the judge and
not the jury, we did not create an exception from the ordi
nary rule governing appellate review of factual matters.
Markman no more creates an exception to Rule 52(a) than
would a holding that judges, not juries, determine equit
able claims, such as requests for injunctions. A conclusion
that an issue is for the judge does not indicate that Rule
52(a) is inapplicable. See Fed. Rule Civ. Proc. 52 (setting
the standard of review for “[Factual] Findings and Conclu
sions by the Court” (emphasis added)).
While we held in Markman that the ultimate issue of
the proper construction of a claim should be treated as a
question of law, we also recognized that in patent con
struction, subsidiary factfinding is sometimes necessary.
Cite as: 574 U. S. ____ (2015) 7
Opinion of the Court
Indeed, we referred to claim construction as a practice
with “evidentiary underpinnings,” a practice that “falls
somewhere between a pristine legal standard and a simple
historical fact.” 517 U.S., at 378, 388, 390. We added
that sometimes courts may have to make “credibility
judgments” about witnesses. Id., at 389. In other words,
we recognized that courts may have to resolve subsidiary
factual disputes. And, as explained above, the Rule re
quires appellate courts to review all such subsidiary fac
tual findings under the “clearly erroneous” standard.
Precedent further supports application of the “clearly
erroneous” standard. Before the creation of the Federal
Circuit, the Second Circuit explained that in claim con
struction, the subsidiary “question . . . of how the art un-
derstood the term . . . was plainly a question of fact; and
unless the [district court’s] finding was ‘clearly erroneous,’
we are to take” it “as controlling.” Harries v. Air King
Products, Co., 183 F.2d 158, 164 (CA2 1950) (L. Hand,
C. J.). We have said the same as to subsidiary factual
findings concerning other patent law inquiries, including
“obviousness.” Dennison Mfg. Co. v. Panduit Corp., 475
U.S. 809, 811 (1986) (per curiam) (“subsidiary determina
tions of the District Court” subject to Rule 52(a)’s clear
error standard).
Finally, practical considerations favor clear error re
view. We have previously pointed out that clear error
review is “particularly” important where patent law is at
issue because patent law is “a field where so much de
pends upon familiarity with specific scientific problems
and principles not usually contained in the general store
house of knowledge and experience.” Graver Tank & Mfg.
Co. v. Linde Air Products Co., 339 U.S. 605, 610 (1950). A
district court judge who has presided over, and listened to,
the entirety of a proceeding has a comparatively greater
opportunity to gain that familiarity than an appeals court
judge who must read a written transcript or perhaps just
8 TEVA PHARMACEUTICALS USA, INC. v. SANDOZ, INC.
Opinion of the Court
those portions to which the parties have referred. Cf.
Lighting Ballast, 744 F.3d, at 1311 (O’Malley, J., dissent
ing) (Federal Circuit judges “lack the tools that district
courts have available to resolve factual disputes fairly and
accurately,” such as questioning the experts, examining
the invention in operation, or appointing a court-appointed
expert); Anderson, 470 U.S., at 574 (“The trial judge’s
major role is the determination of fact, and with experi
ence in fulfilling that role comes expertise”).
B
Sandoz argues that claim construction mostly consists of
construing a set of written documents that do not give rise
to subsidiary factual disputes. Tr. of Oral Arg. 39. It adds
that separating “factual” from “legal” questions is often
difficult. And Sandoz, like the Federal Circuit itself,
argues that it is simpler for that appellate court to review
the entirety of the district court’s claim construction de
novo rather than to apply two separate standards. Id., at
38; see also Lighting Ballast, supra, at 1284 (criticizing
clear error review in part because of the purportedly diffi
cult task of “disentangling” fact from law).
But even were we free to ignore the Federal Rule (which
we are not), we would not find this argument convincing.
Courts of appeals have long found it possible to separate
factual from legal matters. See, e.g., First Options of
Chicago, Inc. v. Kaplan, 514 U.S. 938, 947–948 (1995)
(review of factual findings for clear error and legal conclu
sions de novo is the “ordinary” standard for courts of ap
peals). At the same time, the Federal Circuit’s efforts to
treat factual findings and legal conclusions similarly have
brought with them their own complexities. See e.g., Cybor
Corp. v. FAS Technologies, Inc., 138 F.3d 1448, 1454 (CA
Fed. 1998) (en banc) (claim construction does not involve
“factual evidentiary findings” (citation and internal quota
tion marks omitted)); Lighting Ballast, supra, at 1284
Cite as: 574 U. S. ____ (2015) 9
Opinion of the Court
(claim construction has “arguably factual aspects”); Dow
Jones & Co. v. Ablaise Ltd., 606 F.3d 1338, 1344–1345
(CA Fed. 2010) (“[T]his court,” while reviewing claim
construction without deference, “takes into account the
views of the trial judge”); Nazomi Communications Inc., v.
Arm Holdings, PLC, 403 F.3d 1364, 1371 (CA Fed. 2005)
(“[C]ommon sense dictates that the trial judge’s view will
carry weight” (citation and internal quotation marks
omitted)); Lightning Ballast, supra, at 1294 (Lourie, J.,
concurring) (we should “rarely” overturn district court’s
true subsidiary factfinding; “we should, and do, give proper
informal deference to the work of judges of a subordinate
tribunal”); Cybor, supra, at 1480 (opinion of Newman, J.)
(“By continuing the fiction that there are no facts to be
found in claim interpretations, we confound rather than
ease the litigation process”); see also Anderson, supra, at
575 (the parties “have already been forced to concentrate
their energies and resources on persuading the trial judge
that their account of the facts is the correct one; requiring
them to persuade three more judges at the appellate level
is requiring too much”); Brief for Peter S. Menell et al. as
Amici Curiae 5 (Federal Circuit overturns district court
claim construction at unusually high rate).
Finally, the Circuit feared that “clear error” review
would bring about less uniformity. Lighting Ballast,
supra, at 1280. Neither the Circuit nor Sandoz, however,
has shown that (or explained why) divergent claim con
struction stemming from divergent findings of fact (on
subsidiary matters) should occur more than occasionally.
After all, the Federal Circuit will continue to review de
novo the district court’s ultimate interpretation of the
patent claims. And the attorneys will no doubt bring cases
construing the same claim to the attention of the trial
judge; those prior cases will sometimes be binding because
of issue preclusion, see Markman, 517 U.S., at 391, and
sometimes will serve as persuasive authority. Moreover,
10 TEVA PHARMACEUTICALS USA, INC. v. SANDOZ, INC.
Opinion of the Court
it is always possible to consolidate for discovery different
cases that involve construction of the same claims. And,
as we said in Markman, subsidiary factfinding is unlikely
to loom large in the universe of litigated claim construc
tion. Id., at 389–390.
C
The dissent argues that claim construction does not
involve any “factfinding,” or, if it does, claim construction
factfinding is akin to the factfinding that underlies our
interpretation of statutes. Post, at 1, 5–7 (opinion of
THOMAS, J.). Its first, broader contention runs contrary to
our recognition in Markman that claim construction has
“evidentiary underpinnings” and that courts construing
patent claims must sometimes make “credibility judg
ments” about witnesses. 517 U.S., at 389–390. Indeed, as
discussed in Part III, infra, this case provides a perfect
example of the factfinding that sometimes underlies claim
construction: The parties here presented the District
Court with competing fact-related claims by different
experts, and the District Court resolved the issues of fact
that divided those experts.
The dissent’s contention also runs contrary to Sandoz’s
concession at oral argument that claim construction will
sometimes require subsidiary factfinding. Tr. of Oral Arg.
33–34, 38–40. It is in tension with our interpretation of
related areas of patent law, such as the interpretation of
“obviousness,” which we have said involves subsidiary
factfinding subject to Rule 52(a)’s clear error review. See
Dennison, 475 U.S., at 811. And it fights the question
presented in this case, which assumes the existence of
such factfinding. See Pet. for Cert. i (whether “a district
court’s factual finding in support of its construction of a
patent claim term may be reviewed de novo, . . . or only
for clear error”).
Neither do we find factfinding in this context sufficiently
Cite as: 574 U. S. ____ (2015) 11
Opinion of the Court
similar to the factfinding that underlies statutory inter
pretation. Statutes, in general, address themselves to the
general public; patent claims concern a small portion of
that public. Statutes typically (though not always) rest
upon congressional consideration of general facts related
to a reasonably broad set of social circumstances; patents
typically (though not always) rest upon consideration by a
few private parties, experts, and administrators of more
narrowly circumscribed facts related to specific technical
matters. The public, and often an adversarial public,
typically considers and discusses the relevant general
facts before Congress enacts a statute; only private par
ties, experts, and administrators likely consider the rele
vant technical facts before the award of a patent. Given
these differences, it is not surprising that this Court has
never previously compared patent claim construction in
any here relevant way to statutory construction. As dis
cussed supra, at 5, however, the Court has repeatedly
compared patent claim construction to the construction of
other written instruments such as deeds and contracts.
See, e.g., Markman, supra, at 384, 386, 388, 389; Motion
Picture Patent Co., 243 U.S., at 510; Goodyear, 102 U.S.,
at 227.
D
Now that we have set forth why the Federal Circuit
must apply clear error review when reviewing subsidiary
factfinding in patent claim construction, it is necessary to
explain how the rule must be applied in that context. We
recognize that a district court’s construction of a patent
claim, like a district court’s interpretation of a written
instrument, often requires the judge only to examine and
to construe the document’s words without requiring the
judge to resolve any underlying factual disputes. As all
parties agree, when the district court reviews only evi
dence intrinsic to the patent (the patent claims and speci
12 TEVA PHARMACEUTICALS USA, INC. v. SANDOZ, INC.
Opinion of the Court
fications, along with the patent’s prosecution history), the
judge’s determination will amount solely to a determina
tion of law, and the Court of Appeals will review that
construction de novo. See Brief for Petitioners 27, Re-
ply Brief 16; Brief for Respondents 43; see also Brief for
United States as Amicus Curiae 12–13.
In some cases, however, the district court will need to
look beyond the patent’s intrinsic evidence and to consult
extrinsic evidence in order to understand, for example, the
background science or the meaning of a term in the rele
vant art during the relevant time period. See, e.g., Sey-
mour v. Osborne, 11 Wall. 516, 546 (1871) (a patent may
be “so interspersed with technical terms and terms of art
that the testimony of scientific witnesses is indispensable
to a correct understanding of its meaning”). In cases
where those subsidiary facts are in dispute, courts will
need to make subsidiary factual findings about that ex
trinsic evidence. These are the “evidentiary underpin
nings” of claim construction that we discussed in Mark-
man, and this subsidiary factfinding must be reviewed for
clear error on appeal.
For example, if a district court resolves a dispute be
tween experts and makes a factual finding that, in gen
eral, a certain term of art had a particular meaning to a
person of ordinary skill in the art at the time of the inven
tion, the district court must then conduct a legal analysis:
whether a skilled artisan would ascribe that same mean
ing to that term in the context of the specific patent claim
under review. That is because “[e]xperts may be examined
to explain terms of art, and the state of the art, at any
given time,” but they cannot be used to prove “the proper
or legal construction of any instrument of writing.”
Winans v. New York & Erie R. Co., 21 How. 88, 100–101
(1859); see also Markman, supra, at 388 (“ ‘Where tech
nical terms are used, or where the qualities of substances
. . . or any similar data necessary to the comprehension of
Cite as: 574 U. S. ____ (2015) 13
Opinion of the Court
the language of the patent are unknown to the judge, the
testimony of witnesses may be received upon these sub
jects, and any other means of information be employed.
But in the actual interpretation of the patent the court
proceeds upon its own responsibility, as an arbiter of the
law, giving to the patent its true and final character and
force’ ” (quoting 2 W. Robinson, Law of Patents §732, pp.
482–483 (1890); emphasis in original)).
Accordingly, the question we have answered here con
cerns review of the district court’s resolution of a subsidi
ary factual dispute that helps that court determine the
proper interpretation of the written patent claim. The
district judge, after deciding the factual dispute, will then
interpret the patent claim in light of the facts as he has
found them. This ultimate interpretation is a legal con
clusion. The appellate court can still review the district
court’s ultimate construction of the claim de novo. But, to
overturn the judge’s resolution of an underlying factual
dispute, the Court of Appeals must find that the judge, in
respect to those factual findings, has made a clear error.
Fed. Rule Civ. Proc. 52(a)(6).
In some instances, a factual finding will play only a
small role in a judge’s ultimate legal conclusion about the
meaning of the patent term. But in some instances, a
factual finding may be close to dispositive of the ultimate
legal question of the proper meaning of the term in the
context of the patent. Nonetheless, the ultimate question
of construction will remain a legal question. Simply be
cause a factual finding may be nearly dispositive does not
render the subsidiary question a legal one. “[A]n issue
does not lose its factual character merely because its
resolution is dispositive of the ultimate” legal question.
Miller v. Fenton, 474 U.S. 104, 113 (1985). It is analogous
to a judge (sitting without a jury) deciding whether a
defendant gave a confession voluntarily. The answer to
the legal question about the voluntariness of the confes
14 TEVA PHARMACEUTICALS USA, INC. v. SANDOZ, INC.
Opinion of the Court
sion may turn upon the answer to a subsidiary factual
question, say “whether in fact the police engaged in the
intimidation tactics alleged by the defendant.” Id., at 112.
An appellate court will review the trial judge’s factual
determination about the alleged intimidation deferentially
(though, after reviewing the factual findings, it will review
a judge’s ultimate determination of voluntariness de novo).
See id., at 112–118. An appellate court similarly should
review for clear error those factual findings that underlie
a district court’s claim construction.
III
We can illustrate our holding by considering an instance
in which Teva, with the support of the Solicitor General,
argues that the Federal Circuit wrongly reviewed the
District Court’s factual finding de novo. See Brief for
Petitioners 54–56; Brief for United States as Amicus
Curiae 31–32. Recall that Teva’s patent claim specifies an
active ingredient with a “molecular weight of about 5 to 9
kilodaltons.” Recall Sandoz’s basic argument, namely that
the term “molecular weight” is indefinite or ambiguous.
The term might refer to the weight of the most numerous
molecule, it might refer to weight as calculated by the
average weight of all molecules, or it might refer to weight
as calculated by an average in which heavier molecules
count for more. The claim, Sandoz argues, does not tell us
which way we should calculate weight. See Part I, supra.
To illustrate, imagine we have a sample of copolymer-1
(the active ingredient) made up of 10 molecules: 4 weigh 6
kilodaltons each, 3 weigh 8 kilodaltons each, and 3 weigh
9 kilodaltons each. Using the first method of calculation,
the “molecular weight” would be 6 kilodaltons, the weight
of the most prevalent molecule. Using the second method,
the molecular weight would be 7.5 (total weight, 75, di-
vided by the number of molecules, 10). Using the third
method, the molecular weight would be more than 8, depend-
Cite as: 574 U. S. ____ (2015) 15
Opinion of the Court
ing upon how much extra weight we gave to the heavier
molecules.
Teva argued in the District Court that the term “molec
ular weight” in the patent meant molecular weight calcu
lated in the first way (the weight of the most prevalent
molecule, or peak average molecular weight). Sandoz,
however, argued that figure 1 of the patent showed that
Teva could not be right. 810 F. Supp. 2d, at 590. (We
have set forth figure 1 in the Appendix, infra). That fig
ure, said Sandoz, helped to show that the patent term did
not refer to the first method of calculation. Figure 1 shows
how the weights of a sample’s molecules were distributed
in three different samples. The curves indicate the num
ber of molecules of each weight that were present in each
of the three. For example, the figure’s legend says that
the first sample’s “molecular weight” is 7.7. According to
Teva, that should mean that molecules weighing 7.7 kilo
daltons were the most prevalent molecules in the sample.
But, look at the curve, said Sandoz. It shows that the
most prevalent molecule weighed, not 7.7 kilodaltons, but
slightly less than 7.7 (about 6.8) kilodaltons. See App.
138a–139a. After all, the peak of the first molecular
weight distribution curve (the solid curve in the figure) is
not at precisely 7.7 kilodaltons, but at a point just before
7.7. Thus, argued Sandoz, the figure shows that the pa
tent claim term “molecular weight” did not mean molecu
lar weight calculated by the first method. It must mean
something else. It is indefinite. 810 F. Supp. 2d, at 590.
The District Court did not accept Sandoz’s argument.
Teva’s expert testified that a skilled artisan would under
stand that converting data from a chromatogram to mo
lecular weight distribution curves like those in figure 1
would cause the peak on each curve to shift slightly; this
could explain the difference between the value indicated
by the peak of the curve (about 6.8) and the value in the
figure’s legend (7.7). App. 138a–139a. Sandoz’s expert
16 TEVA PHARMACEUTICALS USA, INC. v. SANDOZ, INC.
Opinion of the Court
testified that no such shift would occur. App. 375a–376a.
The District Court credited Teva’s expert’s account, thereby
rejecting Sandoz’s expert’s explanation. 810 F. Supp. 2d,
at 589; Brief for Respondents 61. The District Court’s
finding about this matter was a factual finding—about
how a skilled artisan would understand the way in which
a curve created from chromatogram data reflects molecu
lar weights. Based on that factual finding, the District
Court reached the legal conclusion that figure 1 did not
undermine Teva’s argument that molecular weight re
ferred to the first method of calculation (peak average
molecular weight). 810 F. Supp. 2d, at 590–591.
When the Federal Circuit reviewed the District Court’s
decision, it recognized that the peak of the curve did not
match the 7.7 kilodaltons listed in the legend of figure 1.
723 F.3d, at 1369. But the Federal Circuit did not accept
Teva’s expert’s explanation as to how a skilled artisan
would expect the peaks of the curves to shift. And it failed
to accept that explanation without finding that the Dis
trict Court’s contrary determination was “clearly errone
ous.” See ibid. The Federal Circuit should have accepted
the District Court’s finding unless it was “clearly errone
ous.” Our holding today makes clear that, in failing to do
so, the Federal Circuit was wrong.
Teva claims that there are two additional instances in
which the Federal Circuit rejected the District Court’s
factual findings without concluding that they were clearly
erroneous. We leave these matters for the Federal Circuit
to consider on remand in light of today’s opinion.
We vacate the Federal Circuit’s judgment, and we re
mand the case for further proceedings consistent with this
opinion.
It is so ordered.
Cite as: 574 U. S. ____ (2015)
17
Opinion
Appendix of the of
to opinion Court
the Court
APPENDIX
FIG. 1 (with minor additions to emphasize that the peak of
the solid curve does not correspond precisely to 7.7kDa)
Cite as: 574 U. S. ____ (2015) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–854
_________________
TEVA PHARMACEUTICALS USA, INC., ET AL.,
PETITIONERS v. SANDOZ, INC., ET AL. | n v Westview nstruments, nc, 517 US 370 (1996), we explained that a patent claim is that “por tion of the patent document that defines the scope of the patentee’s rights” We held that “the con struction of a patent, including terms of art within its claim,” is not for a jury but “exclusively” for “the court” to determine That is so even where the construction of a term of art has “evidentiary underpinnings” at 390 Today’s case involves claim construction with “eviden tiary underpinnings” See Part infra And, it requires us to determine what standard the Court of Appeals should use when it reviews a trial judge’s resolution of an underlying factual dispute Should the Court of Appeals review the district court’s factfinding de novo as it would review a question of law? Or, should it review that fact- finding as it would review a trial judge’s factfinding in other cases, namely by taking them as correct “unless clearly erroneous?” See Fed Rule Civ Proc 52(a)(6) We hold that the appellate court must apply a “clear error,” 2 TEVA PHARMACEUTCALS USA, NC v SANDOZ, NC Opinion of the Court not a de novo, standard of review The basic dispute in this case concerns the meaning of the words “molecular weight” as those words appear in a patent claim The petitioners, Teva Pharmaceuticals (along with related firms), own the relevant patent The patent covers a manufacturing method for Copaxone, a drug used to treat multiple sclerosis The drug’s active ingredient, called “copolymer-1,” is made up of molecules of varying sizes App 1143a And the relevant claim describes that ingredient as having “a molecular weight of 5 to 9 kilodaltons” at 1145a The respondents, Sandoz, nc (and several other firms), tried to market a generic version of Copaxone Teva sued Sandoz for patent infringement (SDNY 2011) Sandoz defended the suit by arguing that the patent was in The Patent Act requires that a claim “particularly poin[t] out and distinctly clai[m] the subject matter which the applicant regards as his invention” 35 US C ¶2 (2006 ed); see nc v Biosig nstruments, nc, 572 U S n 1 (slip op, at 3, n 1)) The phrase “molecular weight of 5 to 9 kilodaltons,” said Sandoz, did not satisfy this requirement The reason that the phrase is fatally indefinite, Sandoz argued, is that, in the context of this patent claim, the term “molecular weight” might mean any one of three different things The phrase might refer (1) to molecular weight as calculated by the weight of the molecule that is most prevalent in the mix that makes up copolymer-1 (The scientific term for molecular weight so calculated is, we are told, “peak average molecular weight”) The phrase might refer (2) to molecular weight as calculated by taking all the different-sized molecules in the mix that makes up copolymer-1 and calculating the average weight, ie, Cite as: U S (2015) 3 Opinion of the Court adding up the weight of each molecule and dividing by the number of molecules (The scientific term for molecular weight so calculated is, we are told, “number average molecular weight”) Or, the phrase might refer (3) to molecular weight as calculated by taking all the different- sized molecules in the mix that makes up copolymer-1 and calculating their average weight while giving heavier molecules a weight-related bonus when doing so (The scientific term for molecular weight so calculated, we are told, is “weight average molecular weight”) See 723 F3d 1363, 1367 (CA Fed 2013); App 124a n Sandoz’s view, since Teva’s patent claim does not say which method of calculation should be used, the claim’s phrase “molecular weight” is indefinite, and the claim fails to satisfy the critical patent law requirement The District Court, after taking evidence from experts, concluded that the patent claim was sufficiently definite Among other things, it found that in context a skilled artisan would understand that the term “molecular weight” referred to molecular weight as calculated by the first method, ie, “peak average molecular weight” 810 F Supp 2d, 96; see at (slip op, at 12) (“[T]he definiteness inquiry trains on the understand ing of a skilled artisan at the time of the patent applica tion”) n part for this reason, the District Court held the patent On appeal, the Federal Circuit held to the contrary t found that the term “molecular weight” was And it consequently held the patent in 723 F3d, at 1369 n reaching this conclusion, the Federal Circuit reviewed de novo all aspects of the District Court’s claim construction, including the District Court’s determination of subsidiary facts ; see also Light- ing Control (en banc) (reaffirming de novo review of district court claim 4 TEVA PHARMACEUTCALS USA, NC v SANDOZ, NC Opinion of the Court construction) Teva filed a petition for certiorari And we granted that petition The Federal Circuit reviews the claim construc tion decisions of federal district courts throughout the Nation, and we consequently believe it important to clarify the standard of review that it must apply when doing so A Federal Rule of Civil Procedure 52(a)(6) states that a court of appeals “must not set aside” a district court’s “[f ]indings of fact” unless they are “clearly erroneous” n our view, this rule and the standard it sets forth must apply when a court of appeals reviews a district court’s resolution of subsidiary factual matters made in the course of its construction of a patent claim We have made clear that the Rule sets forth a “clear command” Ander- “t does not make exceptions or purport to exclude certain catego ries of factual findings from the obligation of a court of appeals to accept a district court’s findings unless clearly erroneous” 287 (1982) Accordingly, the Rule applies to both subsidi ary and ultimate facts And we have said that, when reviewing the findings of a “ ‘district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo’ ” (quoting Zenith Radio (1969)) Even if exceptions to the Rule were permissible, we cannot find any convincing ground for creating an excep tion to that Rule here The Rules Advisory Committee pointed out that, in general, exceptions “would tend to undermine the legitimacy of the district courts multi ply appeals and needlessly reallocate judicial author Cite as: U S (2015) 5 Opinion of the Court ity” Advisory Committee’s 1985 Note on subd (a) of Fed Rule Civ Proc 52, 28 US C App, pp 908–909; see also at –575 (de novo review of fac- tual findings “would very likely contribute only negligibly” to accuracy “at a huge cost in diversion of judicial resources”) Our opinion in neither created, nor argued for, an exception to Rule 52(a) The question presented in that case was a Seventh Amendment question: Should a jury or a judge construe patent claims? 517 US, We pointed out that history provides no clear answer The task primarily involves the construction of written instruments And that task is better matched to a judge’s skills (“The construction of written instruments is one of those things that judges often do and are likely to do better than jurors unburdened by training in exegesis”) We consequently held that claim construction falls “exclusively within the province of the court,” not that of the jury When describing claim construction we concluded that it was proper to treat the ultimate question of the proper construction of the patent as a question of law in the way that we treat document construction as a question of law –391 But this does not imply an exception to Rule 52(a) for underlying factual disputes We used the term “question of law” while pointing out that a judge, in construing a patent claim, is engaged in much the same task as the judge would be in construing other written instruments, such as deeds, contracts, or tariffs at 384, 386, 388, 389; see also Motion Picture Patents v Universal Film Mfg (patent claims are “aptly likened to the description in a deed, which sets the bounds to the grant which it contains”); Goodyear Dental Vulcanite (1880) (analogizing patent construction to the construction of other written instruments like contracts) Construction 6 TEVA PHARMACEUTCALS USA, NC v SANDOZ, NC Opinion of the Court of written instruments often presents a “question solely of law,” at least when the words in those instruments are “used in their ordinary meaning” Great Northern R v Merchants Elevator But sometimes, say when a written instrument uses “technical words or phrases not commonly understood,” those words may give rise to a factual dispute f so, ex trinsic evidence may help to “establish a usage of trade or locality” And in that circumstance, the “determina tion of the matter of fact” will “preced[e]” the “function of construction” ; see also 12 R Lord, Williston on Contracts p 2, 34:19, p 174 (4th ed 2012) (n contract interpretation, the existence of a “usage”—a “practice or method” in the relevant industry—“is a ques tion of fact” (internal quotation marks omitted)) This factual determination, like all other factual determina tions, must be reviewed for clear error See Pullman- (The Rule does not “exclude cer tain categories of factual findings” and applies to both “subsidiary” and “ultimate” facts (internal quotation marks omitted)) Accordingly, when we held in that the ulti mate question of claim construction is for the judge and not the jury, we did not create an exception from the ordi nary rule governing appellate review of factual matters no more creates an exception to Rule 52(a) than would a holding that judges, not juries, determine equit able claims, such as requests for injunctions A conclusion that an issue is for the judge does not indicate that Rule 52(a) is inapplicable See Fed Rule Civ Proc 52 (setting the standard of review for “[Factual] Findings and Conclu sions by the Court” (emphasis added)) While we held in that the ultimate issue of the proper construction of a claim should be treated as a question of law, we also recognized that in patent con struction, subsidiary factfinding is sometimes necessary Cite as: U S (2015) 7 Opinion of the Court ndeed, we referred to claim construction as a practice with “evidentiary underpinnings,” a practice that “falls somewhere between a pristine legal standard and a simple historical fact” 388, 390 We added that sometimes courts may have to make “credibility judgments” about n other words, we recognized that courts may have to resolve subsidiary factual disputes And, as explained above, the Rule re quires appellate courts to review all such subsidiary fac tual findings under the “clearly erroneous” standard Precedent further supports application of the “clearly erroneous” standard Before the creation of the Federal Circuit, the Second Circuit explained that in claim con struction, the subsidiary “question of how the art un- derstood the term was plainly a question of fact; and unless the [district court’s] finding was ‘clearly erroneous,’ we are to take” it “as controlling” (L Hand, C J) We have said the same as to subsidiary factual findings concerning other patent law inquiries, including “obviousness” Mfg v Panduit Corp, 475 US 809, 811 (1986) (per curiam) (“subsidiary determina tions of the District Court” subject to Rule 52(a)’s clear error standard) Finally, practical considerations favor clear error re view We have previously pointed out that clear error review is “particularly” important where patent law is at issue because patent law is “a field where so much de pends upon familiarity with specific scientific problems and principles not usually contained in the general store house of knowledge and experience” Graver Tank & Mfg A district court judge who has presided over, and listened to, the entirety of a proceeding has a comparatively greater opportunity to gain that familiarity than an appeals court judge who must read a written transcript or perhaps just 8 TEVA PHARMACEUTCALS USA, NC v SANDOZ, NC Opinion of the Court those portions to which the parties have referred Cf Lighting (O’Malley, J, dissent ing) (Federal Circuit judges “lack the tools that district courts have available to resolve factual disputes fairly and accurately,” such as questioning the experts, examining the invention in operation, or appointing a court-appointed expert); 470 US, at (“The trial judge’s major role is the determination of fact, and with experi ence in fulfilling that role comes expertise”) B Sandoz argues that claim construction mostly consists of construing a set of written documents that do not give rise to subsidiary factual disputes Tr of Oral Arg 39 t adds that separating “factual” from “legal” questions is often difficult And Sandoz, like the Federal Circuit itself, argues that it is simpler for that appellate court to review the entirety of the district court’s claim construction de novo rather than to apply two separate standards at 38; see also Lighting (criticizing clear error review in part because of the purportedly diffi cult task of “disentangling” fact from law) But even were we free to ignore the Federal Rule (which we are not), we would not find this argument convincing Courts of appeals have long found it possible to separate factual from legal matters See, eg, First Options of Chicago, (review of factual findings for clear error and legal conclu sions de novo is the “ordinary” standard for courts of ap peals) At the same time, the Federal Circuit’s efforts to treat factual findings and legal conclusions similarly have brought with them their own complexities See eg, (CA Fed 1998) (en banc) (claim construction does not involve “factual evidentiary findings” (citation and internal quota tion marks omitted)); Lighting Cite as: U S (2015) 9 Opinion of the Court (claim construction has “arguably factual aspects”); Dow Jones & 1344–1345 (CA Fed 2010) (“[T]his court,” while reviewing claim construction without deference, “takes into account the views of the trial judge”); Nazomi Communications nc, v Arm Holdings, PLC, (“[C]ommon sense dictates that the trial judge’s view will carry weight” (citation and internal quotation marks omitted)); Lightning (Lourie, J, concurring) (we should “rarely” overturn district court’s true subsidiary factfinding; “we should, and do, give proper informal deference to the work of judges of a subordinate tribunal”); (“By continuing the fiction that there are no facts to be found in claim interpretations, we confound rather than ease the litigation process”); see also at 575 (the parties “have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade three more judges at the appellate level is requiring too much”); Brief for Peter S Menell et al as Amici Curiae 5 (Federal Circuit overturns district court claim construction at unusually high rate) Finally, the Circuit feared that “clear error” review would bring about less uniformity Lighting Neither the Circuit nor Sandoz, however, has shown that (or explained why) divergent claim con struction stemming from divergent findings of fact (on subsidiary matters) should occur more than occasionally After all, the Federal Circuit will continue to review de novo the district court’s ultimate interpretation of the patent claims And the attorneys will no doubt bring cases construing the same claim to the attention of the trial judge; those prior cases will sometimes be binding because of issue preclusion, see and sometimes will serve as persuasive authority Moreover, 10 TEVA PHARMACEUTCALS USA, NC v SANDOZ, NC Opinion of the Court it is always possible to consolidate for discovery different cases that involve construction of the same claims And, as we said in subsidiary factfinding is unlikely to loom large in the universe of litigated claim construc tion –390 C The dissent argues that claim construction does not involve any “factfinding,” or, if it does, claim construction factfinding is akin to the factfinding that underlies our interpretation of statutes Post, at 1, 5–7 (opinion of THOMAS, J) ts first, broader contention runs contrary to our recognition in that claim construction has “evidentiary underpinnings” and that courts construing patent claims must sometimes make “credibility judg ments” about 517 US, –390 ndeed, as dis in Part infra, this case provides a perfect example of the factfinding that sometimes underlies claim construction: The parties here presented the District Court with competing fact-related claims by different experts, and the District Court resolved the issues of fact that divided those experts The dissent’s contention also runs contrary to Sandoz’s concession at oral argument that claim construction will sometimes require subsidiary factfinding Tr of Oral Arg 33–34, 38–40 t is in tension with our interpretation of related areas of patent law, such as the interpretation of “obviousness,” which we have said involves subsidiary factfinding subject to Rule 52(a)’s clear error review See And it fights the question presented in this case, which assumes the existence of such factfinding See Pet for Cert i (whether “a district court’s factual finding in support of its construction of a patent claim term may be reviewed de novo, or only for clear error”) Neither do we find factfinding in this context sufficiently Cite as: U S (2015) 11 Opinion of the Court similar to the factfinding that underlies statutory inter pretation Statutes, in general, address themselves to the general public; patent claims concern a small portion of that public Statutes typically (though not always) rest upon congressional consideration of general facts related to a reasonably broad set of social circumstances; patents typically (though not always) rest upon consideration by a few private parties, experts, and administrators of more narrowly circumscribed facts related to specific technical matters The public, and often an adversarial public, typically considers and discusses the relevant general facts before Congress enacts a statute; only private par ties, experts, and administrators likely consider the rele vant technical facts before the award of a patent Given these differences, it is not surprising that this Court has never previously compared patent claim construction in any here relevant way to statutory construction As dis however, the Court has repeatedly compared patent claim construction to the construction of other written instruments such as deeds and contracts See, eg, ; Motion Picture Patent 243 US, at ; Goodyear, 102 US, at D Now that we have set forth why the Federal Circuit must apply clear error review when reviewing subsidiary factfinding in patent claim construction, it is necessary to explain how the rule must be applied in that context We recognize that a district court’s construction of a patent claim, like a district court’s interpretation of a written instrument, often requires the judge only to examine and to construe the document’s words without requiring the judge to resolve any underlying factual disputes As all parties agree, when the district court reviews only evi dence intrinsic to the patent (the patent claims and speci 12 TEVA PHARMACEUTCALS USA, NC v SANDOZ, NC Opinion of the Court fications, along with the patent’s prosecution history), the judge’s determination will amount solely to a determina tion of law, and the Court of Appeals will review that construction de novo See Brief for Petitioners 27, Re- ply Brief 16; Brief for Respondents 43; see also Brief for United States as Amicus Curiae 12–13 n some cases, however, the district court will need to look beyond the patent’s intrinsic evidence and to consult extrinsic evidence in order to understand, for example, the background science or the meaning of a term in the rele vant art during the relevant time period See, eg, Sey- (a patent may be “so interspersed with technical terms and terms of art that the testimony of scientific witnesses is indispensable to a correct understanding of its meaning”) n cases where those subsidiary facts are in dispute, courts will need to make subsidiary factual findings about that ex trinsic evidence These are the “evidentiary underpin nings” of claim construction that we dis in Mark- man, and this subsidiary factfinding must be reviewed for clear error on appeal For example, if a district court resolves a dispute be tween experts and makes a factual finding that, in gen eral, a certain term of art had a particular meaning to a person of ordinary skill in the art at the time of the inven tion, the district court must then conduct a legal analysis: whether a skilled artisan would ascribe that same mean ing to that term in the context of the specific patent claim under review That is because “[e]xperts may be examined to explain terms of art, and the state of the art, at any given time,” but they cannot be used to prove “the proper or legal construction of any instrument of writing” Winans v New York & Erie R 100–101 (1859); see also (“ ‘Where tech nical terms are used, or where the qualities of substances or any similar data necessary to the comprehension of Cite as: U S (2015) 13 Opinion of the Court the language of the patent are unknown to the judge, the testimony of witnesses may be received upon these sub jects, and any other means of information be employed But in the actual interpretation of the patent the court proceeds upon its own responsibility, as an arbiter of the law, giving to the patent its true and final character and force’ ” (quoting 2 W Robinson, Law of Patents pp 482–483 (1890); emphasis in original)) Accordingly, the question we have answered here con cerns review of the district court’s resolution of a subsidi ary factual dispute that helps that court determine the proper interpretation of the written patent claim The district judge, after deciding the factual dispute, will then interpret the patent claim in light of the facts as he has found them This ultimate interpretation is a legal con clusion The appellate court can still review the district court’s ultimate construction of the claim de novo But, to overturn the judge’s resolution of an underlying factual dispute, the Court of Appeals must find that the judge, in respect to those factual findings, has made a clear error Fed Rule Civ Proc 52(a)(6) n some instances, a factual finding will play only a small role in a judge’s ultimate legal conclusion about the meaning of the patent term But in some instances, a factual finding may be close to dispositive of the ultimate legal question of the proper meaning of the term in the context of the patent Nonetheless, the ultimate question of construction will remain a legal question Simply be cause a factual finding may be nearly dispositive does not render the subsidiary question a legal one “[A]n issue does not lose its factual character merely because its resolution is dispositive of the ultimate” legal question t is analogous to a judge (sitting without a jury) deciding whether a defendant gave a confession voluntarily The answer to the legal question about the voluntariness of the confes 14 TEVA PHARMACEUTCALS USA, NC v SANDOZ, NC Opinion of the Court sion may turn upon the answer to a subsidiary factual question, say “whether in fact the police engaged in the intimidation tactics alleged by the defendant” An appellate court will review the trial judge’s factual determination about the alleged intimidation deferentially (though, after reviewing the factual findings, it will review a judge’s ultimate determination of voluntariness de novo) See –118 An appellate court similarly should review for clear error those factual findings that underlie a district court’s claim construction We can illustrate our holding by considering an instance in which Teva, with the support of the Solicitor General, argues that the Federal Circuit wrongly reviewed the District Court’s factual finding de novo See Brief for Petitioners 54–56; Brief for United States as Amicus Curiae 31–32 Recall that Teva’s patent claim specifies an active ingredient with a “molecular weight of about 5 to 9 kilodaltons” Recall Sandoz’s basic argument, namely that the term “molecular weight” is indefinite or ambiguous The term might refer to the weight of the most numerous molecule, it might refer to weight as calculated by the average weight of all molecules, or it might refer to weight as calculated by an average in which heavier molecules count for more The claim, Sandoz argues, does not tell us which way we should calculate weight See Part To illustrate, imagine we have a sample of copolymer-1 (the active ingredient) made up of 10 molecules: 4 weigh 6 kilodaltons each, 3 weigh 8 kilodaltons each, and 3 weigh 9 kilodaltons each Using the first method of calculation, the “molecular weight” would be 6 kilodaltons, the weight of the most prevalent molecule Using the second method, the molecular weight would be 75 (total weight, 75, di- vided by the number of molecules, 10) Using the third method, the molecular weight would be more than 8, depend- Cite as: U S (2015) 15 Opinion of the Court ing upon how much extra weight we gave to the heavier molecules Teva argued in the District Court that the term “molec ular weight” in the patent meant molecular weight calcu lated in the first way (the weight of the most prevalent molecule, or peak average molecular weight) Sandoz, however, argued that figure 1 of the patent showed that Teva could not be 810 F Supp 2d, 90 (We have set forth figure 1 in the Appendix, infra) That fig ure, said Sandoz, helped to show that the patent term did not refer to the first method of calculation Figure 1 shows how the weights of a sample’s molecules were distributed in three different samples The curves indicate the num ber of molecules of each weight that were present in each of the three For example, the figure’s legend says that the first sample’s “molecular weight” is 77 According to Teva, that should mean that molecules weighing 77 kilo daltons were the most prevalent molecules in the sample But, look at the curve, said Sandoz t shows that the most prevalent molecule weighed, not 77 kilodaltons, but slightly less than 77 (about 68) kilodaltons See App 138a–139a After all, the peak of the first molecular weight distribution curve (the solid curve in the figure) is not at precisely 77 kilodaltons, but at a point just before 77 Thus, argued Sandoz, the figure shows that the pa tent claim term “molecular weight” did not mean molecu lar weight calculated by the first method t must mean something else t is 810 F Supp 2d, 90 The District Court did not accept Sandoz’s argument Teva’s expert testified that a skilled artisan would under stand that converting data from a chromatogram to mo lecular weight distribution curves like those in figure 1 would cause the peak on each curve to shift slightly; this could explain the difference between the value indicated by the peak of the curve (about 68) and the value in the figure’s legend (77) App 138a–139a Sandoz’s expert 16 TEVA PHARMACEUTCALS USA, NC v SANDOZ, NC Opinion of the Court testified that no such shift would occur App 375a–376a The District Court credited Teva’s expert’s account, thereby rejecting Sandoz’s expert’s explanation 810 F Supp 2d, 89; Brief for Respondents 61 The District Court’s finding about this matter was a factual finding—about how a skilled artisan would understand the way in which a curve created from chromatogram data reflects molecu lar weights Based on that factual finding, the District Court reached the legal conclusion that figure 1 did not undermine Teva’s argument that molecular weight re ferred to the first method of calculation (peak average molecular weight) 810 F Supp 2d, 90–591 When the Federal Circuit reviewed the District Court’s decision, it recognized that the peak of the curve did not match the 77 kilodaltons listed in the legend of figure 1 723 F3d, at 1369 But the Federal Circuit did not accept Teva’s expert’s explanation as to how a skilled artisan would expect the peaks of the curves to shift And it failed to accept that explanation without finding that the Dis trict Court’s contrary determination was “clearly errone ous” See ibid The Federal Circuit should have accepted the District Court’s finding unless it was “clearly errone ous” Our holding today makes clear that, in failing to do so, the Federal Circuit was wrong Teva claims that there are two additional instances in which the Federal Circuit rejected the District Court’s factual findings without concluding that they were clearly erroneous We leave these matters for the Federal Circuit to consider on remand in light of today’s opinion We vacate the Federal Circuit’s judgment, and we re mand the case for further proceedings consistent with this opinion t is so ordered Cite as: U S (2015) 17 Opinion Appendix of the of to opinion Court the Court APPENDX FG 1 (with minor additions to emphasize that the peak of the solid curve does not correspond precisely to 77kDa) Cite as: U S (2015) 1 THOMAS, J, dissenting SUPREME COURT OF THE UNTED STATES No 13–854 TEVA PHARMACEUTCALS USA, NC, ET AL, PETTONERS v SANDOZ, NC, ET AL |
Justice Stevens | second_dissenting | false | Payne v. Tennessee | 1991-09-13T00:00:00 | null | https://www.courtlistener.com/opinion/112643/payne-v-tennessee/ | https://www.courtlistener.com/api/rest/v3/clusters/112643/ | 1,991 | 1990-125 | 1 | 6 | 3 | The novel rule that the Court announces today represents a dramatic departure from the principles that have governed our capital sentencing jurisprudence for decades. JUSTICE MARSHALL is properly concerned about the majority's trivialization of the doctrine of stare decisis. But even if Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S. 805 (1989), had not been decided, today's decision would represent a sharp break with past decisions. Our cases provide no support whatsoever for the majority's conclusion that the prosecutor may introduce evidence that sheds no light on the defendant's guilt or moral culpability, and thus serves no purpose other than to encourage jurors to decide in favor of death rather than life on the basis of their emotions rather than their reason.
Until today our capital punishment jurisprudence has required that any decision to impose the death penalty be based solely on evidence that tends to inform the jury about the character of the offense and the character of the defendant. Evidence that serves no purpose other than to appeal to the *857 sympathies or emotions of the jurors has never been considered admissible. Thus, if a defendant, who had murdered a convenience store clerk in cold blood in the course of an armed robbery, offered evidence unknown to him at the time of the crime about the immoral character of his victim, all would recognize immediately that the evidence was irrelevant and inadmissible. Evenhanded justice requires that the same constraint be imposed on the advocate of the death penalty.
I
In Williams v. New York, 337 U.S. 241 (1949), this Court considered the scope of the inquiry that should precede the imposition of a death sentence. Relying on practices that had developed "both before and since the American colonies became a nation," id., at 246, Justice Black described the wide latitude that had been accorded judges in considering the source and type of evidence that is relevant to the sentencing determination. Notably, that opinion refers not only to the relevance of evidence establishing the defendant's guilt, but also to the relevance of "the fullest information possible concerning the defendant's life and characteristics." Id., at 247. "Victim impact" evidence, however, was unheard of when Williams was decided. The relevant evidence of harm to society consisted of proof that the defendant was guilty of the offense charged in the indictment.
Almost 30 years after our decision in Williams, the Court reviewed the scope of evidence relevant in capital sentencing. See Lockett v. Ohio, 438 U.S. 586 (1978). In his plurality opinion, Chief Justice Burger concluded that in a capital case, the sentencer must not be prevented "from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Id., at 604 (emphasis deleted). As in Williams, the character of the offense and the character of the offender constituted *858 the entire category of relevant evidence. "Victim impact" evidence was still unheard of when Lockett was decided.
As the Court acknowledges today, the use of victim impact evidence "is of recent origin," ante, at 821. Insofar as the Court's jurisprudence is concerned, this type of evidence made its first appearance in 1987 in Booth v. Maryland, 482 U.S. 496. In his opinion for the Court, Justice Powell noted that our prior cases had stated that the question whether an individual defendant should be executed is to be determined on the basis of "`the character of the individual and the circumstances of the crime,'" id., at 502 (quoting Zant v. Stephens, 462 U.S. 862, 879 (1983)). See also Eddings v. Oklahoma, 455 U.S. 104, 112 (1982). Relying on those cases and on Enmund v. Florida, 458 U.S. 782, 801 (1982), the Court concluded that unless evidence has some bearing on the defendant's personal responsibility and moral guilt, its admission would create a risk that a death sentence might be based on considerations that are constitutionally impermissible or totally irrelevant to the sentencing process. 482 U.S., at 502. Evidence that served no purpose except to describe the personal characteristics of the victim and the emotional impact of the crime on the victim's family was therefore constitutionally irrelevant.
Our decision in Booth was entirely consistent with the practices that had been followed "both before and since the American colonies became a nation," Williams, 337 U. S., at 246. Our holding was mandated by our capital punishment jurisprudence, which requires any decision to impose the death penalty to be based on reason rather than caprice or emotion. See Gardner v. Florida, 430 U.S. 349, 362 (1977) (opinion of STEVENS, J.). The dissenting opinions in Booth and in Gathers can be searched in vain for any judicial precedent sanctioning the use of evidence unrelated to the character of the offense or the character of the offender in the sentencing process. Today, however, relying on nothing more than those dissenting opinions, the Court abandons *859 rules of relevance that are older than the Nation itself and ventures into uncharted seas of irrelevance.
II
Today's majority has obviously been moved by an argument that has strong political appeal but no proper place in a reasoned judicial opinion. Because our decision in Lockett, 438 U. S., at 604 (opinion of Burger, C. J.), recognizes the defendant's right to introduce all mitigating evidence that may inform the jury about his character, the Court suggests that fairness requires that the State be allowed to respond with similar evidence about the victim. See ante, at 825-826.[1] This argument is a classic non sequitur: The victim is not on trial; her character, whether good or bad, cannot therefore constitute either an aggravating or a mitigating circumstance.
*860 Even if introduction of evidence about the victim could be equated with introduction of evidence about the defendant, the argument would remain flawed in both its premise and its conclusion. The conclusion that exclusion of victim impact evidence results in a significantly imbalanced sentencing procedure is simply inaccurate. Just as the defendant is entitled to introduce any relevant mitigating evidence, so the State may rebut that evidence and may designate any relevant conduct to be an aggravating factor provided that the factor is sufficiently well defined and consistently applied to cabin the sentencer's discretion.
The premise that a criminal prosecution requires an even-handed balance between the State and the defendant is also incorrect. The Constitution grants certain rights to the criminal defendant and imposes special limitations on the State designed to protect the individual from overreaching by the disproportionately powerful State. Thus, the State must prove a defendant's guilt beyond a reasonable doubt. See In re Winship, 397 U.S. 358 (1970). Rules of evidence are also weighted in the defendant's favor. For example, the prosecution generally cannot introduce evidence of the defendant's character to prove his propensity to commit a crime, but the defendant can introduce such reputation evidence to show his law-abiding nature. See, e. g., Fed. Rule Evid. 404(a). Even if balance were required or desirable, today's decision, by permitting both the defendant and the State to introduce irrelevant evidence for the sentencer's consideration without any guidance, surely does nothing to enhance parity in the sentencing process.
III
Victim impact evidence, as used in this case, has two flaws, both related to the Eighth Amendment's command that the punishment of death may not be meted out arbitrarily or capriciously. First, aspects of the character of the victim unforeseeable to the defendant at the time of his crime are irrelevant *861 to the defendant's "personal responsibility and moral guilt" and therefore cannot justify a death sentence. See Enmund v. Florida, 458 U. S., at 801; see also id., at 825 (O'CONNOR, J., dissenting) ("[P]roportionality requires a nexus between the punishment imposed and the defendant's blameworthiness"); Tison v. Arizona, 481 U.S. 137, 149 (1987) ("The heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender"); California v. Brown, 479 U.S. 538, 545 (1987) (O'CONNOR, J., concurring).
Second, the quantity and quality of victim impact evidence sufficient to turn a verdict of life in prison into a verdict of death is not defined until after the crime has been committed and therefore cannot possibly be applied consistently in different cases. The sentencer's unguided consideration of victim impact evidence thus conflicts with the principle central to our capital punishment jurisprudence that, "where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Gregg v. Georgia, 428 U.S. 153, 189 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.). Open-ended reliance by a capital sentencer on victim impact evidence simply does not provide a "principled way to distinguish [cases], in which the death penalty [i]s imposed, from the many cases in which it [i]s not." Godfrey v. Georgia, 446 U.S. 420, 433 (1980) (opinion of Stewart, J.).
The majority attempts to justify the admission of victim impact evidence by arguing that "consideration of the harm caused by the crime has been an important factor in the exercise of [sentencing] discretion." Ante, at 820. This statement is misleading and inaccurate. It is misleading because it is not limited to harm that is foreseeable. It is inaccurate because it fails to differentiate between legislative determinations and judicial sentencing. It is true that an evaluation of *862 the harm caused by different kinds of wrongful conduct is a critical aspect in legislative definitions of offenses and determinations concerning sentencing guidelines. There is a rational correlation between moral culpability and the foreseeable harm caused by criminal conduct. Moreover, in the capital sentencing area, legislative identification of the special aggravating factors that may justify the imposition of the death penalty is entirely appropriate.[2] But the majority cites no authority for the suggestion that unforeseeable and indirect harms to a victim's family are properly considered as aggravating evidence on a case-by-case basis.
The dissents in Booth and Gathers and the majority today offer only the recent decision in Tison v. Arizona, 481 U.S. 137 (1987), and two legislative examples to support their contention that harm to the victim has traditionally influenced sentencing discretion. Tison held that the death penalty may be imposed on a felon who acts with reckless disregard for human life if a death occurs in the course of the felony, even though capital punishment cannot be imposed if no one dies as a result of the crime. The first legislative example is that attempted murder and murder are classified as two different offenses subject to different punishments. Ante, at 819. The second legislative example is that a person who drives while intoxicated is guilty of vehicular homicide if his actions result in a death but is not guilty of this offense if he has the good fortune to make it home without killing anyone. See Booth, 482 U. S., at 516 (WHITE, J., dissenting).
*863 These three scenarios, however, are fully consistent with the Eighth Amendment jurisprudence reflected in Booth and Gathers and do not demonstrate that harm to the victim may be considered by a capital sentencer in the ad hoc and post hoc manner authorized by today's majority. The majority's examples demonstrate only that harm to the victim may justify enhanced punishment if the harm is both foreseeable to the defendant and clearly identified in advance of the crime by the legislature as a class of harm that should in every case result in more severe punishment.
In each scenario, the defendants could reasonably foresee that their acts might result in loss of human life. In addition, in each, the decision that the defendants should be treated differently was made prior to the crime by the legislature, the decision of which is subject to scrutiny for basic rationality. Finally, in each scenario, every defendant who causes the well-defined harm of destroying a human life will be subject to the determination that his conduct should be punished more severely. The majority's scenarios therefore provide no support for its holding, which permits a jury to sentence a defendant to death because of harm to the victim and his family that the defendant could not foresee, which was not even identified until after the crime had been committed, and which may be deemed by the jury, without any rational explanation, to justify a death sentence in one case but not in another. Unlike the rule elucidated by the scenarios on which the majority relies, the majority's holding offends the Eighth Amendment because it permits the sentencer to rely on irrelevant evidence in an arbitrary and capricious manner.
The majority's argument that "the sentencing authority has always been free to consider a wide range of relevant material," ante, at 820-821 (emphasis added), thus cannot justify consideration of victim impact evidence that is irrelevant because it details harms that the defendant could not have foreseen. Nor does the majority's citation of Gregg v. Georgia *864 concerning the "wide scope of evidence and argument allowed at presentence hearings," 428 U.S., at 203 (joint opinion of Stewart, Powell, and STEVENS, JJ.), support today's holding. See ante, at 821. The Gregg joint opinion endorsed the sentencer's consideration of a wide range of evidence "[s]o long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant." 428 U.S., at 203-204. Irrelevant victim impact evidence that distracts the sentencer from the proper focus of sentencing and encourages reliance on emotion and other arbitrary factors necessarily prejudices the defendant.
The majority's apparent inability to understand this fact is highlighted by its misunderstanding of Justice Powell's argument in Booth that admission of victim impact evidence is undesirable because it risks shifting the focus of the sentencing hearing away from the defendant and the circumstances of the crime and creating a "`mini-trial' on the victim's character." 482 U.S., at 507. Booth found this risk insupportable not, as today's majority suggests, because it creates a "tactical" "dilemma" for the defendant, see ante, at 823, but because it allows the possibility that the jury will be so distracted by prejudicial and irrelevant considerations that it will base its life-or-death decision on whim or caprice. See 482 U.S., at 506-507.
IV
The majority thus does far more than validate a State's judgment that "the jury should see `a quick glimpse of the life petitioner chose to extinguish,' Mills v. Maryland, 486 U.S. 367, 397 (1988) (REHNQUIST, C. J., dissenting)." Ante, at 830-831 (O'CONNOR, J., concurring). Instead, it allows a jury to hold a defendant responsible for a whole array of harms that he could not foresee and for which he is therefore not blameworthy. JUSTICE SOUTER argues that these harms are sufficiently foreseeable to hold the defendant accountable because "[e]very defendant knows, if endowed with the mental competence for criminal responsibility, that *865 the life he will take by his homicidal behavior is that of a unique person, like himself, and that the person to be killed probably has close associates, `survivors,' who will suffer harms and deprivations from the victim's death." Ante, at 838 (SOUTER, J., concurring). But every juror and trial judge knows this much as well. Evidence about who those survivors are and what harms and deprivations they have suffered is therefore not necessary to apprise the sentencer of any information that was actually foreseeable to the defendant. Its only function can be to "divert the jury's attention away from the defendant's background and record, and the circumstances of the crime." See Booth, 482 U. S., at 505.
Arguing in the alternative, JUSTICE SOUTER correctly points out that victim impact evidence will sometimes come to the attention of the jury during the guilt phase of the trial. Ante, at 840. He reasons that the ideal of basing sentencing determinations entirely on the moral culpability of the defendant is therefore unattainable unless a different jury is empaneled for the sentencing hearing. Ante, at 841. Thus, to justify overruling Booth, he assumes that the decision must otherwise be extended far beyond its actual holding.
JUSTICE SOUTER'S assumption is entirely unwarranted. For as long as the contours of relevance at sentencing hearings have been limited to evidence concerning the character of the offense and the character of the offender, the law has also recognized that evidence that is admissible for a proper purpose may not be excluded because it is inadmissible for other purposes and may indirectly prejudice the jury. See 1 J. Wigmore, Evidence § 13 (P. Tillers rev. 1983). In the case before us today, much of what might be characterized as victim impact evidence was properly admitted during the guilt phase of the trial and, given the horrible character of this crime, may have been sufficient to justify the Tennessee Supreme Court's conclusion that the error was harmless because the jury would necessarily have imposed the death sentence even absent the error. The fact that a good deal of *866 such evidence is routinely and properly brought to the attention of the jury merely indicates that the rule of Booth may not affect the outcome of many cases.
In reaching our decision today, however, we should not be concerned with the cases in which victim impact evidence will not make a difference. We should be concerned instead with the cases in which it will make a difference. In those cases, defendants will be sentenced arbitrarily to death on the basis of evidence that would not otherwise be admissible because it is irrelevant to the defendants' moral culpability. The Constitution's proscription against the arbitrary imposition of the death penalty must necessarily proscribe the admission of evidence that serves no purpose other than to result in such arbitrary sentences.
V
The notion that the inability to produce an ideal system of justice in which every punishment is precisely married to the defendant's blameworthiness somehow justifies a rule that completely divorces some capital sentencing determinations from moral culpability is incomprehensible to me. Also incomprehensible is the argument that such a rule is required for the jury to take into account that each murder victim is a "unique" human being. See ante, at 823; ante, at 830-831 (O'CONNOR, J., concurring); ante, at 838 (SOUTER, J., concurring). The fact that each of us is unique is a proposition so obvious that it surely requires no evidentiary support. What is not obvious, however, is the way in which the character or reputation in one case may differ from that of other possible victims. Evidence offered to prove such differences can only be intended to identify some victims as more worthy of protection than others. Such proof risks decisions based on the same invidious motives as a prosecutor's decision to seek the death penalty if a victim is white but to accept a plea bargain if the victim is black. See McCleskey v. Kemp, 481 U.S. 279, 366 (1987) (STEVENS, J., dissenting).
*867 Given the current popularity of capital punishment in a crime-ridden society, the political appeal of arguments that assume that increasing the severity of sentences is the best cure for the cancer of crime, and the political strength of the "victims' rights" movement, I recognize that today's decision will be greeted with enthusiasm by a large number of concerned and thoughtful citizens. The great tragedy of the decision, however, is the danger that the "hydraulic pressure" of public opinion that Justice Holmes once described[3]and that properly influences the deliberations of democratic legislatures has played a role not only in the Court's decision to hear this case,[4] and in its decision to reach the constitutional question without pausing to consider affirming on the basis of the Tennessee Supreme Court's rationale,[5] but even in its resolution of the constitutional issue involved. Today is a sad day for a great institution.
| The novel rule that the Court announces today represents a dramatic departure from the principles that have governed our capital sentencing jurisprudence for decades. JUSTICE MARSHALL is properly concerned about the majority's trivialization of the doctrine of stare decisis. But even if and South had not been decided, today's decision would represent a sharp break with past decisions. Our cases provide no support whatsoever for the majority's conclusion that the prosecutor may introduce evidence that sheds no light on the defendant's guilt or moral culpability, and thus serves no purpose other than to encourage jurors to decide in favor of death rather than life on the basis of their emotions rather than their reason. Until today our capital punishment jurisprudence has required that any decision to impose the death penalty be based solely on evidence that tends to inform the jury about the character of the offense and the character of the defendant. Evidence that serves no purpose other than to appeal to the *857 sympathies or emotions of the jurors has never been considered admissible. Thus, if a defendant, who had murdered a convenience store clerk in cold blood in the course of an armed robbery, offered evidence unknown to him at the time of the crime about the immoral character of his victim, all would recognize immediately that the evidence was irrelevant and inadmissible. Evenhanded justice requires that the same constraint be imposed on the advocate of the death penalty. I In this Court considered the scope of the inquiry that should precede the imposition of a death sentence. Relying on practices that had developed "both before and since the American colonies became a nation," Justice Black described the wide latitude that had been accorded judges in considering the source and type of evidence that is relevant to the sentencing determination. Notably, that opinion refers not only to the relevance of evidence establishing the defendant's guilt, but also to the relevance of "the fullest information possible concerning the defendant's life and characteristics." "Victim impact" evidence, however, was unheard of when was decided. The relevant evidence of harm to society consisted of proof that the defendant was guilty of the offense charged in the indictment. Almost 30 years after our decision in the Court reviewed the scope of evidence relevant in capital sentencing. See In his plurality opinion, Chief Justice Burger concluded that in a capital case, the sentencer must not be prevented "from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." As in the character of the offense and the character of the offender constituted *858 the entire category of relevant evidence. "Victim impact" evidence was still unheard of when was decided. As the Court acknowledges today, the use of victim impact evidence "is of recent origin," ante, at 821. Insofar as the Court's jurisprudence is concerned, this type of evidence made its first appearance in 1987 in In his opinion for the Court, Justice Powell noted that our prior cases had stated that the question whether an individual defendant should be executed is to be determined on the basis of "`the character of the individual and the circumstances of the crime,'" ). See also Relying on those cases and on the Court concluded that unless evidence has some bearing on the defendant's personal responsibility and moral guilt, its admission would create a risk that a death sentence might be based on considerations that are constitutionally impermissible or totally irrelevant to the sentencing process. 482 U.S., Evidence that served no purpose except to describe the personal characteristics of the victim and the emotional impact of the crime on the victim's family was therefore constitutionally irrelevant. Our decision in was entirely consistent with the practices that had been followed "both before and since the American colonies became a nation," 337 U. S., Our holding was mandated by our capital punishment jurisprudence, which requires any decision to impose the death penalty to be based on reason rather than caprice or emotion. See The dissenting opinions in and in Gathers can be searched in vain for any judicial precedent sanctioning the use of evidence unrelated to the character of the offense or the character of the offender in the sentencing process. Today, however, relying on nothing more than those dissenting opinions, the Court abandons *859 rules of relevance that are older than the Nation itself and ventures into uncharted seas of irrelevance. II Today's majority has obviously been moved by an argument that has strong political appeal but no proper place in a reasoned judicial opinion. Because our decision in 438 U. S., recognizes the defendant's right to introduce all mitigating evidence that may inform the jury about his character, the Court suggests that fairness requires that the State be allowed to respond with similar evidence about the victim. See ante, -826.[1] This argument is a classic non sequitur: The victim is not on trial; her character, whether good or bad, cannot therefore constitute either an aggravating or a mitigating circumstance. *860 Even if introduction of evidence about the victim could be equated with introduction of evidence about the defendant, the argument would remain flawed in both its premise and its conclusion. The conclusion that exclusion of victim impact evidence results in a significantly imbalanced sentencing procedure is simply inaccurate. Just as the defendant is entitled to introduce any relevant mitigating evidence, so the State may rebut that evidence and may designate any relevant conduct to be an aggravating factor provided that the factor is sufficiently well defined and consistently applied to cabin the sentencer's discretion. The premise that a criminal prosecution requires an even-handed balance between the State and the defendant is also incorrect. The Constitution grants certain rights to the criminal defendant and imposes special limitations on the State designed to protect the individual from overreaching by the disproportionately powerful State. Thus, the State must prove a defendant's guilt beyond a reasonable doubt. See In re Winship, Rules of evidence are also weighted in the defendant's favor. For example, the prosecution generally cannot introduce evidence of the defendant's character to prove his propensity to commit a crime, but the defendant can introduce such reputation evidence to show his law-abiding nature. See, e. g., Fed. Rule Evid. 404(a). Even if balance were required or desirable, today's decision, by permitting both the defendant and the State to introduce irrelevant evidence for the sentencer's consideration without any guidance, surely does nothing to enhance parity in the sentencing process. III Victim impact evidence, as used in this case, has two flaws, both related to the Eighth Amendment's command that the punishment of death may not be meted out arbitrarily or capriciously. First, aspects of the character of the victim unforeseeable to the defendant at the time of his crime are irrelevant *861 to the defendant's "personal responsibility and moral guilt" and therefore cannot justify a death sentence. See 458 U. S., at ; see also ("[P]roportionality requires a nexus between the punishment imposed and the defendant's blameworthiness"); ; Second, the quantity and quality of victim impact evidence sufficient to turn a verdict of life in prison into a verdict of death is not defined until after the crime has been committed and therefore cannot possibly be applied consistently in different cases. The sentencer's unguided consideration of victim impact evidence thus conflicts with the principle central to our capital punishment jurisprudence that, "where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Open-ended reliance by a capital sentencer on victim impact evidence simply does not provide a "principled way to distinguish [cases], in which the death penalty [i]s imposed, from the many cases in which it [i]s not." The majority attempts to justify the admission of victim impact evidence by arguing that "consideration of the harm caused by the crime has been an important factor in the exercise of [sentencing] discretion." Ante, at 820. This statement is misleading and inaccurate. It is misleading because it is not limited to harm that is foreseeable. It is inaccurate because it fails to differentiate between legislative determinations and judicial sentencing. It is true that an evaluation of *862 the harm caused by different kinds of wrongful conduct is a critical aspect in legislative definitions of offenses and determinations concerning sentencing guidelines. There is a rational correlation between moral culpability and the foreseeable harm caused by criminal conduct. Moreover, in the capital sentencing area, legislative identification of the special aggravating factors that may justify the imposition of the death penalty is entirely appropriate.[2] But the majority cites no authority for the suggestion that unforeseeable and indirect harms to a victim's family are properly considered as aggravating evidence on a case-by-case basis. The dissents in and Gathers and the majority today offer only the recent decision in and two legislative examples to support their contention that harm to the victim has traditionally influenced sentencing discretion. Tison held that the death penalty may be imposed on a felon who acts with reckless disregard for human life if a death occurs in the course of the felony, even though capital punishment cannot be imposed if no one dies as a result of the crime. The first legislative example is that attempted murder and murder are classified as two different offenses subject to different punishments. Ante, at 819. The second legislative example is that a person who drives while intoxicated is guilty of vehicular homicide if his actions result in a death but is not guilty of this offense if he has the good fortune to make it home without killing anyone. See *863 These three scenarios, however, are fully consistent with the Eighth Amendment jurisprudence reflected in and Gathers and do not demonstrate that harm to the victim may be considered by a capital sentencer in the ad hoc and post hoc manner authorized by today's majority. The majority's examples demonstrate only that harm to the victim may justify enhanced punishment if the harm is both foreseeable to the defendant and clearly identified in advance of the crime by the legislature as a class of harm that should in every case result in more severe punishment. In each scenario, the defendants could reasonably foresee that their acts might result in loss of human life. In addition, in each, the decision that the defendants should be treated differently was made prior to the crime by the legislature, the decision of which is subject to scrutiny for basic rationality. Finally, in each scenario, every defendant who causes the well-defined harm of destroying a human life will be subject to the determination that his conduct should be punished more severely. The majority's scenarios therefore provide no support for its holding, which permits a jury to sentence a defendant to death because of harm to the victim and his family that the defendant could not foresee, which was not even identified until after the crime had been committed, and which may be deemed by the jury, without any rational explanation, to justify a death sentence in one case but not in another. Unlike the rule elucidated by the scenarios on which the majority relies, the majority's holding offends the Eighth Amendment because it permits the sentencer to rely on irrelevant evidence in an arbitrary and capricious manner. The majority's argument that "the sentencing authority has always been free to consider a wide range of relevant material," ante, at 820-821 (emphasis added), thus cannot justify consideration of victim impact evidence that is irrelevant because it details harms that the defendant could not have foreseen. Nor does the majority's citation of *864 concerning the "wide scope of evidence and argument allowed at presentence hearings," support today's holding. See ante, at 821. The Gregg joint opinion endorsed the sentencer's consideration of a wide range of evidence "[s]o long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant." -204. Irrelevant victim impact evidence that distracts the sentencer from the proper focus of sentencing and encourages reliance on emotion and other arbitrary factors necessarily prejudices the defendant. The majority's apparent inability to understand this fact is highlighted by its misunderstanding of Justice Powell's argument in that admission of victim impact evidence is undesirable because it risks shifting the focus of the sentencing hearing away from the defendant and the circumstances of the crime and creating a "`mini-trial' on the victim's character." found this risk insupportable not, as today's majority suggests, because it creates a "tactical" "dilemma" for the defendant, see ante, at 823, but because it allows the possibility that the jury will be so distracted by prejudicial and irrelevant considerations that it will base its life-or-death decision on whim or caprice. See -507. IV The majority thus does far more than validate a State's judgment that "the jury should see `a quick glimpse of the life petitioner chose to extinguish,'" Ante, at 830-831 Instead, it allows a jury to hold a defendant responsible for a whole array of harms that he could not foresee and for which he is therefore not blameworthy. JUSTICE SOUTER argues that these harms are sufficiently foreseeable to hold the defendant accountable because "[e]very defendant knows, if endowed with the mental competence for criminal responsibility, that *865 the life he will take by his homicidal behavior is that of a unique person, like himself, and that the person to be killed probably has close associates, `survivors,' who will suffer harms and deprivations from the victim's death." Ante, at 838 (SOUTER, J., concurring). But every juror and trial judge knows this much as well. Evidence about who those survivors are and what harms and deprivations they have suffered is therefore not necessary to apprise the sentencer of any information that was actually foreseeable to the defendant. Its only function can be to "divert the jury's attention away from the defendant's background and record, and the circumstances of the crime." See Arguing in the alternative, JUSTICE SOUTER correctly points out that victim impact evidence will sometimes come to the attention of the jury during the guilt phase of the trial. Ante, at 840. He reasons that the ideal of basing sentencing determinations entirely on the moral culpability of the defendant is therefore unattainable unless a different jury is empaneled for the sentencing hearing. Ante, at 841. Thus, to justify overruling he assumes that the decision must otherwise be extended far beyond its actual holding. JUSTICE SOUTER'S assumption is entirely unwarranted. For as long as the contours of relevance at sentencing hearings have been limited to evidence concerning the character of the offense and the character of the offender, the law has also recognized that evidence that is admissible for a proper purpose may not be excluded because it is inadmissible for other purposes and may indirectly prejudice the jury. See 1 J. Wigmore, Evidence 13 In the case before us today, much of what might be characterized as victim impact evidence was properly admitted during the guilt phase of the trial and, given the horrible character of this crime, may have been sufficient to justify the Tennessee Supreme Court's conclusion that the error was harmless because the jury would necessarily have imposed the death sentence even absent the error. The fact that a good deal of *866 such evidence is routinely and properly brought to the attention of the jury merely indicates that the rule of may not affect the outcome of many cases. In reaching our decision today, however, we should not be concerned with the cases in which victim impact evidence will not make a difference. We should be concerned instead with the cases in which it will make a difference. In those cases, defendants will be sentenced arbitrarily to death on the basis of evidence that would not otherwise be admissible because it is irrelevant to the defendants' moral culpability. The Constitution's proscription against the arbitrary imposition of the death penalty must necessarily proscribe the admission of evidence that serves no purpose other than to result in such arbitrary sentences. V The notion that the inability to produce an ideal system of justice in which every punishment is precisely married to the defendant's blameworthiness somehow justifies a rule that completely divorces some capital sentencing determinations from moral culpability is incomprehensible to me. Also incomprehensible is the argument that such a rule is required for the jury to take into account that each murder victim is a "unique" human being. See ante, at 823; ante, at 830-831 ; ante, at 838 (SOUTER, J., concurring). The fact that each of us is unique is a proposition so obvious that it surely requires no evidentiary support. What is not obvious, however, is the way in which the character or reputation in one case may differ from that of other possible victims. Evidence offered to prove such differences can only be intended to identify some victims as more worthy of protection than others. Such proof risks decisions based on the same invidious motives as a prosecutor's decision to seek the death penalty if a victim is white but to accept a plea bargain if the victim is black. See *867 Given the current popularity of capital punishment in a crime-ridden society, the political appeal of arguments that assume that increasing the severity of sentences is the best cure for the cancer of crime, and the political strength of the "victims' rights" movement, I recognize that today's decision will be greeted with enthusiasm by a large number of concerned and thoughtful citizens. The great tragedy of the decision, however, is the danger that the "hydraulic pressure" of public opinion that Justice Holmes once described[3]and that properly influences the deliberations of democratic legislatures has played a role not only in the Court's decision to hear this case,[4] and in its decision to reach the constitutional question without pausing to consider affirming on the basis of the Tennessee Supreme Court's rationale,[5] but even in its resolution of the constitutional issue involved. Today is a sad day for a great institution. |
Justice O'Connor | majority | false | Texas Teachers Assn. v. Garland School Dist. | 1989-03-28T00:00:00 | null | https://www.courtlistener.com/opinion/112225/texas-teachers-assn-v-garland-school-dist/ | https://www.courtlistener.com/api/rest/v3/clusters/112225/ | 1,989 | 1988-060 | 2 | 9 | 0 | We must decide today the proper standard for determining whether a party has "prevailed" in an action brought under certain civil rights statutes such that the party is eligible for an award of attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, 42 U.S. C. § 1988. This is an issue which has divided the Courts of Appeals both before and after our decision in Hensley v. Eckerhart, 461 U.S. 424 (1983). The Courts of Appeals for the Fifth and Eleventh Circuits require that a party succeed on the "central issue" in the litigation and achieve the "primary relief sought" to be eligible for an award of attorney's fees under § 1988. See, e. g., Simien v. San Antonio, 809 F.2d 255, 258 (CA5 1987); Martin v. Heckler, 773 F.2d 1145, 1149 (CA11 1985) (en banc). Most of the other Federal Courts of Appeals have applied a less demanding standard, requiring only that a party succeed on a significant issue and receive some of the relief sought in the lawsuit to qualify for a fee award. See, e. g., Gingras v. Lloyd, 740 F.2d 210, 212 (CA2 1984); Lampher v. Zagel, 755 F.2d 99, 102 (CA7 1985); Fast v. School Dist. of Ladue, 728 F.2d 1030, 1032-1033 (CA8 1984) (en banc); Lummi Indian Tribe v. Oltman, 720 F.2d 1124, 1125 (CA9 1983); Nephew v. Aurora, 766 F.2d 1464, 1466 (CA10 1985). In this case, the Court of Appeals for the Fifth Circuit applied the "central issue" test and concluded that petitioners here were not prevailing parties under § 1988. Because of the conflicting views in the Courts of Appeals, and because of the importance of the definition of the term "prevailing party" to the application of § 1988 and other federal fee shifting statutes, we granted certiorari. 488 U.S. 815 (1988).
*785 I
On March 31, 1981, petitioners, the Texas State Teachers Association, its local affiliate the Garland Education Association, and several individual members and employees of both organizations brought suit under 42 U.S. C. § 1983 against respondent Garland Independent School District and various school district officials. Petitioners' complaint alleged that the school district's policy of prohibiting communications by or with teachers during the schoolday concerning employee organizations violated petitioners' First and Fourteenth Amendment rights. In particular, petitioners focused their attack on the school district's Administrative Regulation 412, which prohibits employee organizations access to school facilities during school hours and proscribes the use of school mail and internal communications systems by employee organizations. The school district's regulations do permit employee organizations to meet with, or recruit, teachers on school premises before or after the schoolday "upon request and approval by the local school principal." Brief for Respondents 4-5.
On cross motions for summary judgment, the District Court rejected petitioners' claims in almost all respects. The court found that under Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983), the prohibitions on union access to teachers themselves and to internal communication media during school hours were constitutional. App. to Pet. for Cert. 55a-57a. The District Court also rejected petitioners' claim that the school district's policies were unconstitutional in that they prohibited teachers' discussion or promotion of employee organizations among themselves during school hours. Id., at 46a, n. 13. As to teacher discussion of employee organizations, the court found that even if some school officials interpreted the regulations to prohibit such speech, there had been no attempt to enforce such an interpretation. As to teacher-to-teacher speech promoting employee organizations, the court found that the record indicated that the school district did prohibit such speech, but *786 concluded that this prohibition was constitutional. Ibid. The District Court did find for petitioners on one issue: it held that the requirement of school principal approval of teacher meetings with union representatives after school hours was unconstitutionally vague in that no guidelines limited the discretion of the principal's decision to grant or deny access to the campus. Id., at 58a. The District Court found that this issue was of "minor significance," since there was no evidence in the record to indicate that school officials had ever denied employee organizations the use of school premises during nonschool hours. Id., at 58a, 60a, n. 26.
On appeal, the Court of Appeals for the Fifth Circuit affirmed in part, reversed in part, and remanded. Texas State Teachers Assn. v. Garland Independent School Dist., 777 F.2d 1046 (1985). The Court of Appeals agreed with the District Court that petitioners' claim that the First Amendment required the school district to allow union representatives access to school facilities during school hours was foreclosed by our decision in Perry. The Court of Appeals affirmed the entry of summary judgment for the school district on this claim. Id., at 1050-1053. The Court of Appeals, however, disagreed with the District Court's analysis of petitioners' claims relating to teacher-to-teacher discussion of employee organizations during the schoolday. It found that the prohibition of teacher speech promoting union activity during school hours was unconstitutional. Id., at 1054. It also found that there was a distinct possibility that the school district would discipline teachers who engaged in any discussion of employee organizations during the schoolday, and that such a policy had a chilling effect on teachers' First Amendment rights. Finally, the Court of Appeals held that the prohibition on teacher use of internal mail and billboard facilities to discuss employee organizations was unconstitutional. The school district allowed teachers to use these facilities for personal messages of all kinds, and the school district had not shown that the discussion of union activity in these *787 media would be disruptive of its educative mission. Id., at 1055. As to these claims, the Court of Appeals granted petitioners' motion for summary judgment. Respondents filed an appeal in this Court, and we summarily affirmed the judgment of the Court of Appeals. See Garland Independent School Dist. v. Texas State Teachers Assn., 479 U.S. 801 (1986).
Petitioners then filed the instant application for an award of attorney's fees pursuant to 42 U.S. C. § 1988. The District Court found that under Fifth Circuit precedent petitioners here were not "prevailing parties" within the meaning of § 1988 and thus were ineligible for any fee award. App. to Pet. for Cert. 16a-20a. The court recognized that petitioners had achieved "partial success," but indicated that "[i]n this circuit the test for prevailing party status is whether the plaintiff prevailed on the central issue by acquiring the primary relief sought." Id., at 17a, quoting Simien v. San Antonio, 809 F. 2d, at 258. Looking to "the background of the lawsuit" and the claims presented in petitioners' complaint, the District Court concluded that the central issue in this litigation was the constitutionality of the school district's policy of limiting employee organizations' access to teachers and school facilities during school hours. App. to Pet. for Cert. 19a. Because petitioners did not prevail on this issue, they had not carried the "central issue" in the lawsuit nor achieved "the primary relief sought" and were therefore precluded from recovering attorney's fees.
A divided panel of the Court of Appeals for the Fifth Circuit affirmed the District Court's judgment denying petitioners prevailing party status under § 1988. 837 F.2d 190 (1988). The majority noted that the Fifth Circuit's "definition of `prevailing party' is narrower than some of the other Federal appellate courts." Id., at 192. Applying that definition here, the majority found that while petitioners "did succeed on significant secondary issues," the "main thrust" of their lawsuit was nonetheless the desire to gain access to *788 school campuses during school hours for outside representatives of employee organizations. Id., at 192-193. Thus, under the "central issue" test, the District Court had correctly concluded that petitioners were not prevailing parties eligible for a fee award under § 1988. Judge Goldberg dissented. He argued that the "central issue" test for determining prevailing party status was inconsistent with the congressional purpose in enacting § 1988 and contrary to the decisions of this Court. Id., at 193-197. We now reverse the judgment of the Court of Appeals.
II
As amended, 42 U.S. C. § 1988, provides in pertinent part:
"In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs."
In Hensley v. Eckerhart, 461 U.S. 424 (1983), we dealt with the application of the attorney's fee provision of § 1988 to a situation much like the one before us today. Respondents in Hensley were patients involuntarily confined in a state mental hospital who brought a broad based challenge to the constitutionality of a number of the institution's rules and practices. In five of the six general areas where respondents challenged the institution's practices, the District Court found that conditions fell below those required by the Constitution and granted respondents relief. Respondents then requested a fee award pursuant to § 1988, and the District Court "determined that respondents were prevailing parties under 42 U.S. C. § 1988 even though they had not succeeded on every claim." Id., at 428. With one exception, the District Court awarded the respondents in Hensley the entire "lodestar" figure, that is, the hours expended in litigation *789 multiplied by a reasonable hourly rate. The Court of Appeals affirmed the fee award.
In Hensley this Court sought to clarify "the proper standard for setting a fee award where the plaintiff has achieved only limited success." Id., at 431. At the outset we noted that no fee award is permissible until the plaintiff has crossed the "statutory threshold" of prevailing party status. In this regard, the Court indicated that "[a] typical formulation is that `plaintiffs may be considered "prevailing parties" for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit.' " Id., at 433, quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (CA1 1978). The Court then went on to establish certain principles to guide the discretion of the lower courts in setting fee awards in cases where plaintiffs have not achieved complete success. Where the plaintiff's claims are based on different facts and legal theories, and the plaintiff has prevailed on only some of those claims, we indicated that "[t]he congressional intent to limit [fee] awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim." Hensley, supra, at 435. In the more typical situation, where the plaintiff's claims arise out of a common core of facts, and involve related legal theories, the inquiry is more complex. In such a case, we indicated that "the most critical factor is the degree of success obtained." 461 U.S., at 436. We noted that in complex civil rights litigation, "the plaintiff often may succeed in identifying some unlawful practices or conditions," but that "the range of possible success is vast," and the achievement of prevailing party status alone "may say little about whether the expenditure of counsel's time was reasonable in relation to the success achieved." Ibid. We indicated that the district courts should exercise their equitable discretion in such cases to arrive at a reasonable fee award, either by attempting *790 to identify specific hours that should be eliminated or by simply reducing the award to account for the limited success of the plaintiff. Id., at 437. See also Blanchard v. Bergeron, 489 U.S. 87, 96 (1989).
We think it clear that the "central issue" test applied by the lower courts here is directly contrary to the thrust of our decision in Hensley. Although respondents are correct in pointing out that Hensley did not adopt one particular standard for determining prevailing party status, Hensley does indicate that the degree of the plaintiff's success in relation to the other goals of the lawsuit is a factor critical to the determination of the size of a reasonable fee, not to eligibility for a fee award at all.
Our decision in Hensley is consistent with congressional intent in this regard. Congress clearly contemplated that interim fee awards would be available "where a party has prevailed on an important matter in the course of litigation, even when he ultimately does not prevail on all issues." S. Rep. No. 94-1011, p. 5 (1976); see also H. R. Rep. No. 94-1558, p. 8 (1976). In discussing the availability of fees pendente lite under § 1988, we have indicated that such awards are proper where a party "has established his entitlement to some relief on the merits of his claims, either in the trial court or on appeal." Hanrahan v. Hampton, 446 U.S. 754, 757 (1980). The incongruence of the "central issue" test in light of the clear congressional intent that interim fee awards be available to partially prevailing civil rights plaintiffs is readily apparent. In this case, our summary affirmance of the Court of Appeals' judgment for respondents on the union access issues and for petitioners on the teacher-to-teacher communication issues effectively ended the litigation. Because the Court of Appeals found that petitioners had not succeeded on what it viewed as the central issue in the suit, no fees were awarded. Yet, if petitioners' victory on the teacher-to-teacher communication issue had been only an interim one, with other issues remanded for further proceedings *791 in the District Court, petitioners would have been entitled to some fee award for their successful claims under § 1988. Congress cannot have meant "prevailing party" status to depend entirely on the timing of a request for fees: A prevailing party must be one who has succeeded on any significant claim affording it some of the relief sought, either pendente lite or at the conclusion of the litigation.
Nor does the central issue test have much to recommend it from the viewpoint of judicial administration of § 1988 and other fee shifting provisions. By focusing on the subjective importance of an issue to the litigants, it asks a question which is almost impossible to answer. Is the "primary relief sought" in a disparate treatment action under Title VII reinstatement, backpay, or injunctive relief? This question, the answer to which appears to depend largely on the mental state of the parties, is wholly irrelevant to the purposes behind the fee shifting provisions, and promises to mire district courts entertaining fee applications in an inquiry which two commentators have described as "excruciating." See M. Schwartz & J. Kirklin, Section 1983 Litigation: Claims, Defenses, and Fees § 15.11, p. 348 (1986). Creating such an unstable threshold to fee eligibility is sure to provoke prolonged litigation, thus deterring settlement of fee disputes and ensuring that the fee application will spawn a second litigation of significant dimension. In sum, the search for the "central" and "tangential" issues in the lawsuit, or for the "primary," as opposed to the "secondary," relief sought, much like the search for the golden fleece, distracts the district court from the primary purposes behind § 1988 and is essentially unhelpful in defining the term "prevailing party."
We think the language of Nadeau v. Helgemoe, quoted in our opinion in Hensley, adequately captures the inquiry which should be made in determining whether a civil rights plaintiff is a prevailing party within the meaning of § 1988. If the plaintiff has succeeded on "any significant issue in litigation which achieve[d] some of the benefit the parties *792 sought in bringing suit," the plaintiff has crossed the threshold to a fee award of some kind. Nadeau, 581 F. 2d, at 278-279. The floor in this regard is provided by our decision in Hewitt v. Helms, 482 U.S. 755 (1987). As we noted there, "[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail." Id., at 760. Thus, at a minimum, to be considered a prevailing party within the meaning of § 1988, the plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant. Id., at 760-761; Rhodes v. Stewart, 488 U.S. 1, 3-4 (1988). Beyond this absolute limitation, a technical victory may be so insignificant, and may be so near the situations addressed in Hewitt and Rhodes, as to be insufficient to support prevailing party status. For example, in the context of this litigation, the District Court found that the requirement that nonschool hour meetings be conducted only with prior approval from the local school principal was unconstitutionally vague. App. to Pet. for Cert. 58a. The District Court characterized this issue as "of minor significance" and noted that there was "no evidence that the plaintiffs were ever refused permission to use school premises during non-school hours." Id., at 60a, n. 26. If this had been petitioners' only success in the litigation, we think it clear that this alone would not have rendered them "prevailing parties" within the meaning of § 1988. Where the plaintiff's success on a legal claim can be characterized as purely technical or de minimis, a district court would be justified in concluding that even the "generous formulation" we adopt today has not been satisfied. See Nadeau, 581 F. 2d, at 279, n. 3; New York City Unemployed and Welfare Council v. Brezenoff, 742 F.2d 718, 724, n. 4 (CA2 1984); Chicano Police Officer's Assn. v. Stover, 624 F.2d 127, 131 (CA10 1980) ("Nuisance settlements, of course, should not give rise to a `prevailing' plaintiff"). The touchstone of the prevailing party inquiry must be the material alteration of the legal relationship *793 of the parties in a manner which Congress sought to promote in the fee statute. Where such a change has occurred, the degree of the plaintiff's overall success goes to the reasonableness of the award under Hensley, not to the availability of a fee award vel non.
III
Application of the principles enunciated above to the case at hand is not difficult. Petitioners here obtained a judgment vindicating the First Amendment rights of public employees in the workplace. Their success has materially altered the school district's policy limiting the rights of teachers to communicate with each other concerning employee organizations and union activities. Petitioners have thus served the "private attorney general" role which Congress meant to promote in enacting § 1988. They prevailed on a significant issue in the litigation and have obtained some of the relief they sought and are thus "prevailing parties" within the meaning of § 1988. We therefore reverse the judgment of the Court of Appeals and remand this case for a determination of a reasonable attorney's fee consistent with the principles established by our decision in Hensley v. Eckerhart.
It is so ordered | We must decide today the proper standard for determining whether a party has "prevailed" in an action brought under certain civil rights statutes such that the party is eligible for an award of attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S. C. This is an issue which has divided the Courts of Appeals both before and after our decision in The Courts of Appeals for the Fifth and Eleventh Circuits require that a party succeed on the "central issue" in the litigation and achieve the "primary relief sought" to be eligible for an award of attorney's fees under See, e. g., ; Most of the other Federal Courts of Appeals have applied a less demanding standard, requiring only that a party succeed on a significant issue and receive some of the relief sought in the lawsuit to qualify for a fee award. See, e. g., ; ; ; Lummi Indian ; In this case, the Court of Appeals for the Fifth Circuit applied the "central issue" test and concluded that petitioners here were not prevailing parties under Because of the conflicting views in the Courts of Appeals, and because of the importance of the definition of the term "prevailing party" to the application of and other federal fee shifting statutes, we granted certiorari. *785 I On March 31, 1981, petitioners, the Texas State Teachers Association, its local affiliate the Garland Education Association, and several individual members and employees of both organizations brought suit under 42 U.S. C. against respondent Garland Independent School District and various school district officials. Petitioners' complaint alleged that the school district's policy of prohibiting communications by or with teachers during the schoolday concerning employee organizations violated petitioners' First and Fourteenth Amendment rights. In particular, petitioners focused their attack on the school district's Administrative Regulation 412, which prohibits employee organizations access to school facilities during school hours and proscribes the use of school mail and internal communications systems by employee organizations. The school district's regulations do permit employee organizations to meet with, or recruit, teachers on school premises before or after the schoolday "upon request and approval by the local school principal." Brief for Respondents 4-5. On cross motions for summary judgment, the District Court rejected petitioners' claims in almost all respects. The court found that under Perry Education the prohibitions on union access to teachers themselves and to internal communication media during school hours were constitutional. App. to Pet. for Cert. 55a-57a. The District Court also rejected petitioners' claim that the school district's policies were unconstitutional in that they prohibited teachers' discussion or promotion of employee organizations among themselves during school hours. at 46a, n. 13. As to teacher discussion of employee organizations, the court found that even if some school officials interpreted the regulations to prohibit such speech, there had been no attempt to enforce such an interpretation. As to teacher-to-teacher speech promoting employee organizations, the court found that the record indicated that the school district did prohibit such speech, but *786 concluded that this prohibition was constitutional. The District Court did find for petitioners on one issue: it held that the requirement of school principal approval of teacher meetings with union representatives after school hours was unconstitutionally vague in that no guidelines limited the discretion of the principal's decision to grant or deny access to the campus. at 58a. The District Court found that this issue was of "minor significance," since there was no evidence in the record to indicate that school officials had ever denied employee organizations the use of school premises during nonschool hours. at 58a, 60a, n. 26. On appeal, the Court of Appeals for the Fifth Circuit affirmed in part, reversed in part, and remanded. Texas State Teachers The Court of Appeals agreed with the District Court that petitioners' claim that the First Amendment required the school district to allow union representatives access to school facilities during school hours was foreclosed by our decision in Perry. The Court of Appeals affirmed the entry of summary judgment for the school district on this claim. The Court of Appeals, however, disagreed with the District Court's analysis of petitioners' claims relating to teacher-to-teacher discussion of employee organizations during the schoolday. It found that the prohibition of teacher speech promoting union activity during school hours was unconstitutional. It also found that there was a distinct possibility that the school district would discipline teachers who engaged in any discussion of employee organizations during the schoolday, and that such a policy had a chilling effect on teachers' First Amendment rights. Finally, the Court of Appeals held that the prohibition on teacher use of internal mail and billboard facilities to discuss employee organizations was unconstitutional. The school district allowed teachers to use these facilities for personal messages of all kinds, and the school district had not shown that the discussion of union activity in these *787 media would be disruptive of its educative mission. As to these claims, the Court of Appeals granted petitioners' motion for summary judgment. Respondents filed an appeal in this Court, and we summarily affirmed the judgment of the Court of Appeals. See Garland Independent School Petitioners then filed the instant application for an award of attorney's fees pursuant to 42 U.S. C. The District Court found that under Fifth Circuit precedent petitioners here were not "prevailing parties" within the meaning of and thus were ineligible for any fee award. App. to Pet. for Cert. 16a-20a. The court recognized that petitioners had achieved "partial success," but indicated that "[i]n this circuit the test for prevailing party status is whether the plaintiff prevailed on the central issue by acquiring the primary relief sought." at 17a, quoting 809 F. 2d, at Looking to "the background of the lawsuit" and the claims presented in petitioners' complaint, the District Court concluded that the central issue in this litigation was the constitutionality of the school district's policy of limiting employee organizations' access to teachers and school facilities during school hours. App. to Pet. for Cert. 19a. Because petitioners did not prevail on this issue, they had not carried the "central issue" in the lawsuit nor achieved "the primary relief sought" and were therefore precluded from recovering attorney's fees. A divided panel of the Court of Appeals for the Fifth Circuit affirmed the District Court's judgment denying petitioners prevailing party status under The majority noted that the Fifth Circuit's "definition of `prevailing party' is narrower than some of the other Federal appellate courts." Applying that definition here, the majority found that while petitioners "did succeed on significant secondary issues," the "main thrust" of their lawsuit was nonetheless the desire to gain access to *788 school campuses during school hours for outside representatives of employee organizations. -193. Thus, under the "central issue" test, the District Court had correctly concluded that petitioners were not prevailing parties eligible for a fee award under Judge Goldberg dissented. He argued that the "central issue" test for determining prevailing party status was inconsistent with the congressional purpose in enacting and contrary to the decisions of this Court. We now reverse the judgment of the Court of Appeals. II As amended, 42 U.S. C. provides in pertinent part: "In any action or proceeding to enforce a provision of sections 1981, 1982, and 1986 of this title, title IX of or title VI of the Civil Rights Act of 14, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." In we dealt with the application of the attorney's fee provision of to a situation much like the one before us today. Respondents in were patients involuntarily confined in a state mental hospital who brought a broad based challenge to the constitutionality of a number of the institution's rules and practices. In five of the six general areas where respondents challenged the institution's practices, the District Court found that conditions fell below those required by the Constitution and granted respondents relief. Respondents then requested a fee award pursuant to and the District Court "determined that respondents were prevailing parties under 42 U.S. C. even though they had not succeeded on every claim." With one exception, the District Court awarded the respondents in the entire "lodestar" figure, that is, the hours expended in litigation *789 multiplied by a reasonable hourly rate. The Court of Appeals affirmed the fee award. In this Court sought to clarify "the proper standard for setting a fee award where the plaintiff has achieved only limited success." At the outset we noted that no fee award is permissible until the plaintiff has crossed the "statutory threshold" of prevailing party status. In this regard, the Court indicated that "[a] typical formulation is that `plaintiffs may be considered "prevailing parties" for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit.' " quoting The Court then went on to establish certain principles to guide the discretion of the lower courts in setting fee awards in cases where plaintiffs have not achieved complete success. Where the plaintiff's claims are based on different facts and legal theories, and the plaintiff has prevailed on only some of those claims, we indicated that "[t]he congressional intent to limit [fee] awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim." In the more typical situation, where the plaintiff's claims arise out of a common core of facts, and involve related legal theories, the inquiry is more complex. In such a case, we indicated that "the most critical factor is the degree of success obtained." We noted that in complex civil rights litigation, "the plaintiff often may succeed in identifying some unlawful practices or conditions," but that "the range of possible success is vast," and the achievement of prevailing party status alone "may say little about whether the expenditure of counsel's time was reasonable in relation to the success achieved." We indicated that the district courts should exercise their equitable discretion in such cases to arrive at a reasonable fee award, either by attempting *790 to identify specific hours that should be eliminated or by simply reducing the award to account for the limited success of the plaintiff. See also We think it clear that the "central issue" test applied by the lower courts here is directly contrary to the thrust of our decision in Although respondents are correct in pointing out that did not adopt one particular standard for determining prevailing party status, does indicate that the degree of the plaintiff's success in relation to the other goals of the lawsuit is a factor critical to the determination of the size of a reasonable fee, not to eligibility for a fee award at all. Our decision in is consistent with congressional intent in this regard. Congress clearly contemplated that interim fee awards would be available "where a party has prevailed on an important matter in the course of litigation, even when he ultimately does not prevail on all issues." S. Rep. No. 94-1011, p. 5 (1976); see also H. R. Rep. No. 94-1558, p. 8 (1976). In discussing the availability of fees pendente lite under we have indicated that such awards are proper where a party "has established his entitlement to some relief on the merits of his claims, either in the trial court or on appeal." The incongruence of the "central issue" test in light of the clear congressional intent that interim fee awards be available to partially prevailing civil rights plaintiffs is readily apparent. In this case, our summary affirmance of the Court of Appeals' judgment for respondents on the union access issues and for petitioners on the teacher-to-teacher communication issues effectively ended the litigation. Because the Court of Appeals found that petitioners had not succeeded on what it viewed as the central issue in the suit, no fees were awarded. Yet, if petitioners' victory on the teacher-to-teacher communication issue had been only an interim one, with other issues remanded for further proceedings *791 in the District Court, petitioners would have been entitled to some fee award for their successful claims under Congress cannot have meant "prevailing party" status to depend entirely on the timing of a request for fees: A prevailing party must be one who has succeeded on any significant claim affording it some of the relief sought, either pendente lite or at the conclusion of the litigation. Nor does the central issue test have much to recommend it from the viewpoint of judicial administration of and other fee shifting provisions. By focusing on the subjective importance of an issue to the litigants, it asks a question which is almost impossible to answer. Is the "primary relief sought" in a disparate treatment action under Title VII reinstatement, backpay, or injunctive relief? This question, the answer to which appears to depend largely on the mental state of the parties, is wholly irrelevant to the purposes behind the fee shifting provisions, and promises to mire district courts entertaining fee applications in an inquiry which two commentators have described as "excruciating." See M. Schwartz & J. Kirklin, Section Litigation: Claims, Defenses, and Fees 15.11, p. 348 Creating such an unstable threshold to fee eligibility is sure to provoke prolonged litigation, thus deterring settlement of fee disputes and ensuring that the fee application will spawn a second litigation of significant dimension. In sum, the search for the "central" and "tangential" issues in the lawsuit, or for the "primary," as opposed to the "secondary," relief sought, much like the search for the golden fleece, distracts the district court from the primary purposes behind and is essentially unhelpful in defining the term "prevailing party." We think the language of quoted in our opinion in adequately captures the inquiry which should be made in determining whether a civil rights plaintiff is a prevailing party within the meaning of If the plaintiff has succeeded on "any significant issue in litigation which achieve[d] some of the benefit the parties *792 sought in bringing suit," the plaintiff has crossed the threshold to a fee award of some kind. Nadeau, 581 F. 2d, at The floor in this regard is provided by our decision in As we noted there, "[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail." Thus, at a minimum, to be considered a prevailing party within the meaning of the plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant. -761; Beyond this absolute limitation, a technical victory may be so insignificant, and may be so near the situations addressed in Hewitt and Rhodes, as to be insufficient to support prevailing party status. For example, in the context of this litigation, the District Court found that the requirement that nonschool hour meetings be conducted only with prior approval from the local school principal was unconstitutionally vague. App. to Pet. for Cert. 58a. The District Court characterized this issue as "of minor significance" and noted that there was "no evidence that the plaintiffs were ever refused permission to use school premises during non-school hours." at 60a, n. 26. If this had been petitioners' only success in the litigation, we think it clear that this alone would not have rendered them "prevailing parties" within the meaning of Where the plaintiff's success on a legal claim can be characterized as purely technical or de minimis, a district court would be justified in concluding that even the "generous formulation" we adopt today has not been satisfied. See Nadeau, 581 F. 2d, at 279, n. 3; New York City Unemployed and Welfare ; Chicano Police Officer's The touchstone of the prevailing party inquiry must be the material alteration of the legal relationship *793 of the parties in a manner which Congress sought to promote in the fee statute. Where such a change has occurred, the degree of the plaintiff's overall success goes to the reasonableness of the award under not to the availability of a fee award vel non. III Application of the principles enunciated above to the case at hand is not difficult. Petitioners here obtained a judgment vindicating the First Amendment rights of public employees in the workplace. Their success has materially altered the school district's policy limiting the rights of teachers to communicate with each other concerning employee organizations and union activities. Petitioners have thus served the "private attorney general" role which Congress meant to promote in enacting They prevailed on a significant issue in the litigation and have obtained some of the relief they sought and are thus "prevailing parties" within the meaning of We therefore reverse the judgment of the Court of Appeals and remand this case for a determination of a reasonable attorney's fee consistent with the principles established by our decision in It is so ordered |
Justice O'Connor | concurring | false | City of Ladue v. Gilleo | 1994-06-13T00:00:00 | null | https://www.courtlistener.com/opinion/117847/city-of-ladue-v-gilleo/ | https://www.courtlistener.com/api/rest/v3/clusters/117847/ | 1,994 | 1993-068 | 2 | 9 | 0 | It is unusual for us, when faced with a regulation that on its face draws content distinctions, to "assume, arguendo, the validity of the City's submission that the various exemptions are free of impermissible content or viewpoint discrimination." Ante, at 53. With rare exceptions, content discrimination in regulations of the speech of private citizens on private property or in a traditional public forum is presumptively impermissible, and this presumption is a very strong one. Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105, 115-116 (1991). The normal inquiry that our doctrine dictates is, first, to determine whether a regulation is content based or content neutral, and then, based on the answer to that question, to apply the proper level of scrutiny. See, e. g., Burson v. Freeman, 504 U.S. 191, 197-198 (1992) (plurality opinion); Forsyth County v. Nationalist Movement, 505 U.S. 123, 133-135 (1992); Simon & Schuster, supra, at 115-116; Boos v. Barry, 485 U.S. 312, 318-321 (1988) (plurality opinion); Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 229-231 (1987); Carey v. Brown, 447 U.S. 455, 461-463 (1980); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 98-99 (1972).
Over the years, some cogent criticisms have been leveled at our approach. See, e. g., R. A. V. v. St. Paul, 505 U.S. 377, 420-422 (1992) (Stevens, J., concurring in judgment); Consolidated Edison Co. of N. Y. v. Public Serv. Comm'n of N. Y., 447 U.S. 530, 544-548 (1980) (Stevens, J., concurring in judgment); Farber, Content Regulation and the First Amendment: A Revisionist View, 68 Geo. L. J. 727 (1980); *60 Stephan, The First Amendment and Content Discrimination, 68 Va. L. Rev. 203 (1982). And it is quite true that regulations are occasionally struck down because of their contentbased nature, even though common sense may suggest that they are entirely reasonable. The content distinctions present in this ordinance may, to some, be a good example of this.
But though our rule has flaws, it has substantial merit as well. It is a rule, in an area where fairly precise rules are better than more discretionary and more subjective balancing tests. See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 52-53 (1988). On a theoretical level, it reflects important insights into the meaning of the free speech principlefor instance, that content-based speech restrictions are especially likely to be improper attempts to value some forms of speech over others, or are particularly susceptible to being used by the government to distort public debate. See, e. g., ante, at 51-53; Mosley, supra, at 95; Stone, Content Regulation and the First Amendment, 25 Wm. & Mary L. Rev. 189 (1983). On a practical level, it has in application generally led to seemingly sensible results. And, perhaps most importantly, no better alternative has yet come to light.
I would have preferred to apply our normal analytical structure in this case, which may well have required us to examine this law with the scrutiny appropriate to contentbased regulations. Perhaps this would have forced us to confront some of the difficulties with the existing doctrine; perhaps it would have shown weaknesses in the rule, and led us to modify it to take into account the special factors this case presents. But such reexamination is part of the process by which our rules evolve and improve.
Nonetheless, I join the Court's opinion, because I agree with its conclusion in Part IV that even if the restriction were content neutral, it would still be invalid, and because I do not think Part III casts any doubt on the propriety of our normal content discrimination inquiry.
| It is unusual for us, when faced with a regulation that on its face draws content distinctions, to "assume, arguendo, the validity of the City's submission that the various exemptions are free of impermissible content or viewpoint discrimination." Ante, at 53. With rare exceptions, content discrimination in regulations of the speech of private citizens on private property or in a traditional public forum is presumptively impermissible, and this presumption is a very strong one. Simon & The normal inquiry that our doctrine dictates is, first, to determine whether a regulation is content based or content neutral, and then, based on the answer to that question, to apply the proper level of scrutiny. See, e. g., ; Forsyth ; Simon & at ; ; Arkansas Writers' Project, ; ; Police Dept. of Over the years, some cogent criticisms have been leveled at our approach. See, e. g., R. A. V. v. St. Paul, ; Consolidated Edison Co. of N. ; Farber, Content Regulation and the First Amendment: A Revisionist View, 68 Geo. L. J. 727 ; *60 Stephan, The First Amendment and Content Discrimination, And it is quite true that regulations are occasionally struck down because of their contentbased nature, even though common sense may suggest that they are entirely reasonable. The content distinctions present in this ordinance may, to some, be a good example of this. But though our rule has flaws, it has substantial merit as well. It is a rule, in an area where fairly precise rules are better than more discretionary and more subjective balancing tests. See Hustler Magazine, On a theoretical level, it reflects important insights into the meaning of the free speech principlefor instance, that content-based speech restrictions are especially likely to be improper attempts to value some forms of speech over others, or are particularly susceptible to being used by the government to distort public debate. See, e. g., ante, at 51-53; ; Stone, Content Regulation and the First Amendment, On a practical level, it has in application generally led to seemingly sensible results. And, perhaps most importantly, no better alternative has yet come to light. I would have preferred to apply our normal analytical structure in this case, which may well have required us to examine this law with the scrutiny appropriate to contentbased regulations. Perhaps this would have forced us to confront some of the difficulties with the existing doctrine; perhaps it would have shown weaknesses in the rule, and led us to modify it to take into account the special factors this case presents. But such reexamination is part of the process by which our rules evolve and improve. Nonetheless, I join the Court's opinion, because I agree with its conclusion in Part IV that even if the restriction were content neutral, it would still be invalid, and because I do not think Part III casts any doubt on the propriety of our normal content discrimination inquiry. |
Justice O'Connor | second_dissenting | false | Arizona v. Hicks | 1987-03-03T00:00:00 | null | https://www.courtlistener.com/opinion/111834/arizona-v-hicks/ | https://www.courtlistener.com/api/rest/v3/clusters/111834/ | 1,987 | 1986-047 | 2 | 6 | 3 | The Court today gives the right answer to the wrong question. The Court asks whether the police must have probable cause before either seizing an object in plain view or conducting a full-blown search of that object, and concludes that they must. I agree. In my view, however, this case presents a different question: whether police must have probable cause before conducting a cursory inspection of an item in plain view. Because I conclude that such an inspection is reasonable if the police are aware of facts or circumstances that justify a reasonable suspicion that the item is evidence of a crime, I would reverse the judgment of the Arizona Court of Appeals, and therefore dissent.
*334 In Coolidge v. New Hampshire, 403 U.S. 443 (1971), Justice Stewart summarized three requirements that the plurality thought must be satisfied for a plain-view search or seizure. First, the police must lawfully make an initial intrusion or otherwise be in a position from which they can view a particular area. Second, the officer must discover incriminating evidence "inadvertently." Third, it must be "immediately apparent" to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure. As another plurality observed in Texas v. Brown, 460 U.S. 730, 737 (1983), these three requirements have never been expressly adopted by a majority of this Court, but "as the considered opinion of four Members of this Court [the Coolidge plurality] should obviously be the point of reference for further discussion of the issue." There is no dispute in this case that the first two requirements have been satisfied. The officers were lawfully in the apartment pursuant to exigent circumstances, and the discovery of the stereo was inadvertent the officers did not " `know in advance the location of [certain] evidence and intend to seize it,' relying on the plain-view doctrine only as a pretext." Ibid. (quoting Coolidge v. New Hampshire, supra, at 470). Instead, the dispute in this case focuses on the application of the "immediately apparent" requirement; at issue is whether a police officer's reasonable suspicion is adequate to justify a cursory examination of an item in plain view.
The purpose of the "immediately apparent" requirement is to prevent "general, exploratory rummaging in a person's belongings." Coolidge v. New Hampshire, 403 U. S., at 467. If an officer could indiscriminately search every item in plain view, a search justified by a limited purpose such as exigent circumstances could be used to eviscerate the protections of the Fourth Amendment. In order to prevent such a general search, therefore, we require that the relevance of the item be "immediately apparent." As Justice Stewart explained:
*335 "Of course, the extension of the original justification [for being present] is legitimate only where it is immediately apparent to the police that they have evidence before them; the `plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. Cf. Stanley v. Georgia, [394 U.S. 557], 571-572 [(1969)] (Stewart, J., concurring in result)." Id., at 466-467.
Thus, I agree with the Court that even under the plain-view doctrine, probable cause is required before the police seize an item, or conduct a full-blown search of evidence in plain view. Ante, at 326-328. Such a requirement of probable cause will prevent the plain-view doctrine from authorizing general searches. This is not to say, however, that even a mere inspection of a suspicious item must be supported by probable cause. When a police officer makes a cursory inspection of a suspicious item in plain view in order to determine whether it is indeed evidence of a crime, there is no "exploratory rummaging." Only those items that the police officer "reasonably suspects" as evidence of a crime may be inspected, and perhaps more importantly, the scope of such an inspection is quite limited. In short, if police officers have a reasonable, articulate suspicion that an object they come across during the course of a lawful search is evidence of crime, in my view they may make a cursory examination of the object to verify their suspicion. If the officers wish to go beyond such a cursory examination of the object, however, they must have probable cause.
This distinction between a full-blown search and seizure of an item and a mere inspection of the item was first suggested by Justice Stewart. In his concurrence in Stanley v. Georgia, 394 U.S. 557 (1969), which is cited in Coolidge, Justice Stewart observed that the federal agents there had acted within the scope of a lawful warrant in opening the drawers of the defendant's desk. When they found in one of the drawers not the gambling material described in the warrant *336 but movie films, they proceeded to exhibit the films on the defendant's projector, and thereafter arrested the defendant for possession of obscene matter. Justice Stewart agreed with the majority that the film had to be suppressed, but in doing so he suggested that a less intrusive inspection of evidence in plain view would present a different case: "This is not a case where agents in the course of a lawful search came upon contraband, criminal activity, or criminal evidence in plain view. For the record makes clear that the contents of the films could not be determined by mere inspection." Id., at 571 (emphasis added) (footnote omitted).
Following Justice Stewart's suggestion, the overwhelming majority of both state and federal courts have held that probable cause is not required for a minimal inspection of an item in plain view. As Professor LaFave summarizes the view of these courts, "the minimal additional intrusion which results from an inspection or examination of an object in plain view is reasonable if the officer was first aware of some facts and circumstances which justify a reasonable suspicion (not probable cause, in the traditional sense) that the object is or contains a fruit, instrumentality, or evidence of crime." 2 W. LaFave, Search and Seizure § 6.7(b), p. 717 (2d ed. 1987); see also id., at 345 ("It is generally assumed that there is nothing improper in merely picking up an unnamed article for the purpose of nothing its brand name or serial number or other identifying characteristics to be found on the surface"). Thus, while courts require probable cause for more extensive examination, cursory inspections including picking up or moving objects for a better view require only a reasonable suspicion. See, e. g., United States v. Marbury, 732 F.2d 390, 399 (CA5 1984) (police may inspect an item found in plain view to determine whether it is evidence of crime if they have a reasonable suspicion to believe that the item is evidence); United States v. Hillyard, 677 F.2d 1336, 1342 (CA9 1982) (police may give suspicious documents brief perusal if they have a "reasonable suspicion"); United States v. Wright, 667 *337 F. 2d 793, 798 (CA9 1982) ("[A]n officer may conduct such an examination if he at least has a `reasonable suspicion' to believe that the discovered item is evidence"); United States v. Roberts, 619 F.2d 379, 381 (CA5 1980) ("Police officers are not required to ignore the significance of items in plain view even when the full import of the objects cannot be positively ascertained without some examination"); United States v. Ochs, 595 F.2d 1247, 1257-1258, and n. 8 (CA2 1979) (Friendly, J.) (same).
Indeed, several state courts have applied a reasonable suspicion standard in factual circumstances almost identical to this case. See, e. g., State v. Noll, 116 Wis. 2d 443, 343 N.W.2d 391 (1984) (officer, upon seeing television, could check serial numbers); State v. Riedinger, 374 N.W.2d 866 (ND 1985) (police, in executing warrant for drugs, could check serial number of microwave oven); People v. Dorris, 110 Ill. App. 3d 660, 442 N.E.2d 951 (1982) (police may note account number of deposit slip because, when the police have a reasonable suspicion that an item in plain view is stolen property, the minimal additional intrusion of checking external identification numbers is proper); State v. Proctor, 12 Wash. App. 274, 529 P.2d 472 (1974) (upholding police notation of serial numbers on calculators); People v. Eddington, 23 Mich. App. 210, 178 N.W.2d 686 (1970) (upholding examination of heels of shoes), rev'd on other grounds, 387 Mich. 551, 198 N.W.2d 297 (1972).
This distinction between searches based on their relative intrusiveness and its subsequent adoption by a consensus of American courts is entirely consistent with our Fourth Amendment jurisprudence. We have long recognized that searches can vary in intrusiveness, and that some brief searches "may be so minimally intrusive of Fourth Amendment interests that strong countervailing governmental interests will justify a [search] based only on specific articulate facts" that the item in question is contraband or evidence of a crime. United States v. Place, 462 U.S. 696, 706 *338 (1983). In Delaware v. Prouse, 440 U.S. 648, 654 (1979), we held that the permissibility of a particular law enforcement practice should be judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. Thus, "[w]here a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause, we have not hesitated to adopt such a standard." New Jersey v. T. L. O., 469 U.S. 325, 341 (1985). The governmental interests considered include crime prevention and detection. Terry v. Ohio, 392 U.S. 1, 22 (1968). The test is whether these law enforcement interests are sufficiently "substantial," not, as the Court would have it, whether "operational necessities render [a standard less than probable cause] the only practicable means of detecting certain types of crimes." Ante, at 327. See United States v. Place, supra, at 704.
In my view, the balance of the governmental and privacy interests strongly supports a reasonable-suspicion standard for the cursory examination of items in plain view. The additional intrusion caused by an inspection of an item in plain view for its serial number is minuscule. Indeed, the intrusion in this case was even more transitory and less intrusive than the seizure of luggage from a suspected drug dealer in United States v. Place, supra, and the "severe, though brief, intrusion upon cherished personal security" in Terry v. Ohio, supra, at 24-25.
Weighed against this minimal additional invasion of privacy are rather major gains in law enforcement. The use of identification numbers in tracing stolen property is a powerful law enforcement tool. Serial numbers are far more helpful and accurate in detecting stolen property than simple police recollection of the evidence. Cf. New York v. Class, 475 U.S. 106, 111 (1986) (observing importance of vehicle identification numbers). Given the prevalence of mass produced *339 goods in our national economy, a serial number is often the only sure method of detecting stolen property. The balance of governmental and private interests strongly supports the view accepted by a majority of courts that a standard of reasonable suspicion meets the requirements of the Fourth Amendment.
Unfortunately, in its desire to establish a "bright-line" test, the Court has taken a step that ignores a substantial body of precedent and that places serious roadblocks to reasonable law enforcement practices. Indeed, in this case no warrant to search the stereo equipment for its serial number could have been obtained by the officers based on reasonable suspicion alone, and in the Court's view the officers may not even move the stereo turntable to examine its serial number. The theoretical advantages of the "search is a search" approach adopted by the Court today are simply too remote to justify the tangible and severe damage it inflicts on legitimate and effective law enforcement.
Even if probable cause were the appropriate standard, I have little doubt that it was satisfied here. When police officers, during the course of a search inquiring into grievously unlawful activity, discover the tools of a thief (a sawed-off rifle and a stocking mask) and observe in a small apartment two sets of stereo equipment that are both inordinately expensive in relation to their surroundings and known to be favored targets of larcenous activity, the "flexible, commonsense standard" of probable cause has been satisfied. Texas v. Brown, 460 U. S., at 742 (plurality opinion).
Because the Court today ignores the existence of probable cause, and in doing so upsets a widely accepted body of precedent on the standard of reasonableness for the cursory examination of evidence in plain view, I respectfully dissent.
| The Court today gives the right answer to the wrong question. The Court asks whether the police must have probable cause before either seizing an object in plain view or conducting a full-blown search of that object, and concludes that they must. I agree. In my view, however, this case presents a different question: whether police must have probable cause before conducting a cursory inspection of an item in plain view. Because I conclude that such an inspection is reasonable if the police are aware of facts or circumstances that justify a reasonable suspicion that the item is evidence of a crime, I would reverse the judgment of the Arizona Court of Appeals, and therefore dissent. *334 In Justice Stewart summarized three requirements that the plurality thought must be satisfied for a plain-view search or seizure. First, the police must lawfully make an initial intrusion or otherwise be in a position from which they can view a particular area. Second, the officer must discover incriminating evidence "inadvertently." Third, it must be "immediately apparent" to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure. As another plurality observed in these three requirements have never been expressly adopted by a majority of this Court, but "as the considered opinion of four Members of this Court [the Coolidge plurality] should obviously be the point of reference for further discussion of the issue." There is no dispute in this case that the first two requirements have been satisfied. The officers were lawfully in the apartment pursuant to exigent circumstances, and the discovery of the stereo was inadvertent the officers did not " `know in advance the location of [certain] evidence and intend to seize it,' relying on the plain-view doctrine only as a pretext." (quoting ). Instead, the dispute in this case focuses on the application of the "immediately apparent" requirement; at issue is whether a police officer's reasonable suspicion is adequate to justify a cursory examination of an item in plain view. The purpose of the "immediately apparent" requirement is to prevent "general, exploratory rummaging in a person's belongings." If an officer could indiscriminately search every item in plain view, a search justified by a limited purpose such as exigent circumstances could be used to eviscerate the protections of the Fourth Amendment. In order to prevent such a general search, therefore, we require that the relevance of the item be "immediately apparent." As Justice Stewart explained: *335 "Of course, the extension of the original justification [for being present] is legitimate only where it is immediately apparent to the police that they have evidence before them; the `plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. Cf. ] (Stewart, J., concurring in result)." Thus, I agree with the Court that even under the plain-view doctrine, probable cause is required before the police seize an item, or conduct a full-blown search of evidence in plain view. Ante, at 326-328. Such a requirement of probable cause will prevent the plain-view doctrine from authorizing general searches. This is not to say, however, that even a mere inspection of a suspicious item must be supported by probable cause. When a police officer makes a cursory inspection of a suspicious item in plain view in order to determine whether it is indeed evidence of a crime, there is no "exploratory rummaging." Only those items that the police officer "reasonably suspects" as evidence of a crime may be inspected, and perhaps more importantly, the scope of such an inspection is quite limited. In short, if police officers have a reasonable, articulate suspicion that an object they come across during the course of a lawful search is evidence of crime, in my view they may make a cursory examination of the object to verify their suspicion. If the officers wish to go beyond such a cursory examination of the object, however, they must have probable cause. This distinction between a full-blown search and seizure of an item and a mere inspection of the item was first suggested by Justice Stewart. In his concurrence in which is cited in Coolidge, Justice Stewart observed that the federal agents there had acted within the scope of a lawful warrant in opening the drawers of the defendant's desk. When they found in one of the drawers not the gambling material described in the warrant *336 but movie films, they proceeded to exhibit the films on the defendant's projector, and thereafter arrested the defendant for possession of obscene matter. Justice Stewart agreed with the majority that the film had to be suppressed, but in doing so he suggested that a less intrusive inspection of evidence in plain view would present a different case: "This is not a case where agents in the course of a lawful search came upon contraband, criminal activity, or criminal evidence in plain view. For the record makes clear that the contents of the films could not be determined by mere inspection." (footnote omitted). Following Justice Stewart's suggestion, the overwhelming majority of both state and federal courts have held that probable cause is not required for a minimal inspection of an item in plain view. As Professor LaFave summarizes the view of these courts, "the minimal additional intrusion which results from an inspection or examination of an object in plain view is reasonable if the officer was first aware of some facts and circumstances which justify a reasonable suspicion (not probable cause, in the traditional sense) that the object is or contains a fruit, instrumentality, or evidence of crime." 2 W. LaFave, Search and Seizure 6.7(b), p. 717 (2d ed. 1987); see also Thus, while courts require probable cause for more extensive examination, cursory inspections including picking up or moving objects for a better view require only a reasonable suspicion. See, e. g., United ; United ; United ; United ; United (same). Indeed, several state courts have applied a reasonable suspicion standard in factual circumstances almost identical to this case. See, e. g., ; ; ; ; rev'd on other grounds, This distinction between searches based on their relative intrusiveness and its subsequent adoption by a consensus of American courts is entirely consistent with our Fourth Amendment jurisprudence. We have long recognized that searches can vary in intrusiveness, and that some brief searches "may be so minimally intrusive of Fourth Amendment interests that strong countervailing governmental interests will justify a [search] based only on specific articulate facts" that the item in question is contraband or evidence of a crime. United In we held that the permissibility of a particular law enforcement practice should be judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. Thus, "[w]here a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause, we have not hesitated to adopt such a standard." New The governmental interests considered include crime prevention and detection. The test is whether these law enforcement interests are sufficiently "substantial," not, as the Court would have it, whether "operational necessities render [a standard less than probable cause] the only practicable means of detecting certain types of crimes." Ante, at 327. See United In my view, the balance of the governmental and privacy interests strongly supports a reasonable-suspicion standard for the cursory examination of items in plain view. The additional intrusion caused by an inspection of an item in plain view for its serial number is minuscule. Indeed, the intrusion in this case was even more transitory and less intrusive than the seizure of luggage from a suspected drug dealer in United and the "severe, though brief, intrusion upon cherished personal security" in Weighed against this minimal additional invasion of privacy are rather major gains in law enforcement. The use of identification numbers in tracing stolen property is a powerful law enforcement tool. Serial numbers are far more helpful and accurate in detecting stolen property than simple police recollection of the evidence. Cf. New Given the prevalence of mass produced *339 goods in our national economy, a serial number is often the only sure method of detecting stolen property. The balance of governmental and private interests strongly supports the view accepted by a majority of courts that a standard of reasonable suspicion meets the requirements of the Fourth Amendment. Unfortunately, in its desire to establish a "bright-line" test, the Court has taken a step that ignores a substantial body of precedent and that places serious roadblocks to reasonable law enforcement practices. Indeed, in this case no warrant to search the stereo equipment for its serial number could have been obtained by the officers based on reasonable suspicion alone, and in the Court's view the officers may not even move the stereo turntable to examine its serial number. The theoretical advantages of the "search is a search" approach adopted by the Court today are simply too remote to justify the tangible and severe damage it inflicts on legitimate and effective law enforcement. Even if probable cause were the appropriate standard, I have little doubt that it was satisfied here. When police officers, during the course of a search inquiring into grievously unlawful activity, discover the tools of a thief (a sawed-off rifle and a stocking mask) and observe in a small apartment two sets of stereo equipment that are both inordinately expensive in relation to their surroundings and known to be favored targets of larcenous activity, the "flexible, commonsense standard" of probable cause has been satisfied. Because the Court today ignores the existence of probable cause, and in doing so upsets a widely accepted body of precedent on the standard of reasonableness for the cursory examination of evidence in plain view, I respectfully dissent. |
Justice Stevens | dissenting | true | Florida v. Meyers | 1984-04-23T00:00:00 | null | https://www.courtlistener.com/opinion/111157/florida-v-meyers/ | https://www.courtlistener.com/api/rest/v3/clusters/111157/ | 1,984 | 1983-078 | 1 | 6 | 3 | No judicial system is perfect. In this case the Florida District Court of Appeal for the Fourth District appears to have made an error. In the exercise of its discretion, the Florida Supreme Court elected not to correct that error. No reasons were given for its denial of review and since the record is not before us, we cannot know what discretionary factors may have prompted the Florida Supreme Court's decision. This Court, however, finds time to correct the apparent error committed by the intermediate appellate court, acting summarily without benefit of briefs on the merits or argument.
"This Court can only deal with a certain number of cases on the merits in any given Term, and therefore some judgment must attend the process of selection." Torres-Valencia v. United States, 464 U.S. 44 (1983) (REHNQUIST, J., dissenting). If the error corrected today had been committed by a federal court, the Court's action arguably would be a proper exercise of its supervisory powers over the federal judicial system. See this Court's Rule 17.1(a). Or if the case raised a novel question of federal law on which there was a divergence of opinion, arguably it would be proper for the Court to assume jurisdiction for the purpose of clarifying the law. See this Court's Rules 17.1(b) and (c). Or if there were reason to believe that the state court refused to apply federal precedent because of its hostility to this Court's interpretation of the Constitution, see generally Cooper v. Aaron, 358 U.S. 1 (1958), we might have an obligation to act summarily to vindicate the supremacy of federal law. No such consideration is present in this case. In fact, the case on which the majority principally relies, Michigan v. Thomas, 458 U. S. *384 259 (1982) (per curiam), was itself a summary disposition. Clearly, the law in this area is well settled. That being the case, I see no reason why we cannot leave to the Florida Supreme Court the task of managing its own discretionary docket.[1]
For three other reasons I believe the Court should deny certiorari in cases of this kind. First, our pronouncements *385 concerning our confidence in the ability of the state judges to decide Fourth Amendment questions, see Allen v. McCurry, 449 U.S. 90 (1980); Stone v. Powell, 428 U.S. 465 (1976), are given a hollow ring when we are found peering over their shoulders after every misreading of the Fourth Amendment. Second, our ability to perform our primary responsibilities can only be undermined by enlarging our self-appointed role as supervisors of the administration of justice in the state judicial systems. Dispositions such as that today can only encourage prosecutors to file in increasing numbers petitions for certiorari in relatively routine cases, and if we take it upon ourselves to review and correct every incorrect disposition of a federal question by every intermediate state appellate court, we will soon become so busy that we will either be unable to discharge our primary responsibilities effectively, or else be forced to make still another adjustment in the size of our staff in order to process cases effectively. We should focus our attention on methods of using our scarce resources wisely rather than laying another course of bricks in the building of a federal judicial bureaucracy.
Third, and perhaps most fundamental, this case and cases like it pose disturbing questions concerning the Court's conception of its role. Each such case, considered individually, may be regarded as a welcome step forward in the never-ending war against crime. Such decisions are certain to receive widespread approbation, particularly by members of society who have been victimized by lawless conduct. But we must not forget that a central purpose of our written Constitution, and more specifically of its unique creation of a life-tenured federal judiciary, was to ensure that certain rights are firmly secured against possible oppression by the Federal or State Governments. As I wrote last Term: "I believe that in reviewing the decisions of state courts, the primary role of this Court is to make sure that persons who seek to vindicate federal rights have been fairly heard." Michigan v. Long, 463 U.S. 1032, 1068 (1983) (emphasis in original) (dissenting opinion). Yet the Court's recent history indicates that, at *386 least with respect to its summary dispositions, it has been primarily concerned with vindicating the will of the majority and less interested in its role as a protector of the individual's constitutional rights.[2] Since the beginning of the October 1981 Term, the Court has decided in summary fashion 19 cases, including this one, concerning the constitutional rights of persons accused or convicted of crimes. All 19 were decided on the petition of the warden or prosecutor, and in all he was successful in obtaining reversal of a decision upholding a claim of constitutional right.[3] I am not saying that none of these cases should have been decided summarily. But I am saying that this pattern of results, and in particular the fact that in its last two and one-half Terms the Court has been unwilling in even a single criminal case to employ its discretionary power of summary disposition in order to uphold a claim of constitutional right, is quite striking. It may well be true that there have been times when the Court *387 overused its power of summary disposition to protect the citizen against government overreaching. Nevertheless, the Court must be ever mindful of its primary role as the protector of the citizen and not the warden or the prosecutor. The Framers surely feared the latter more than the former.
I respectfully dissent.
| No judicial system is perfect. In this case the Florida District Court of Appeal for the Fourth District appears to have made an error. In the exercise of its discretion, the Florida Supreme Court elected not to correct that error. No reasons were given for its denial of review and since the record is not before us, we cannot know what discretionary factors may have prompted the Florida Supreme Court's decision. This Court, however, finds time to correct the apparent error committed by the intermediate appellate court, acting summarily without benefit of briefs on the merits or argument. "This Court can only deal with a certain number of cases on the merits in any given Term, and therefore some judgment must attend the process of selection." If the error corrected today had been committed by a federal court, the Court's action arguably would be a proper exercise of its supervisory powers over the federal judicial system. See this Court's Rule 17.1(a). Or if the case raised a novel question of federal law on which there was a divergence of opinion, arguably it would be proper for the Court to assume jurisdiction for the purpose of clarifying the law. See this Court's Rules 17.1(b) and (c). Or if there were reason to believe that the state court refused to apply federal precedent because of its hostility to this Court's interpretation of the Constitution, see generally we might have an obligation to act summarily to vindicate the supremacy of federal law. No such consideration is present in this case. In fact, the case on which the majority principally relies, Michigan v. Thomas, 458 U. S. *384 259 (1982) (per curiam), was itself a summary disposition. Clearly, the law in this area is well settled. That being the case, I see no reason why we cannot leave to the Florida Supreme Court the task of managing its own discretionary docket.[1] For three other reasons I believe the Court should deny certiorari in cases of this kind. First, our pronouncements *385 concerning our confidence in the ability of the state judges to decide Fourth Amendment questions, see ; are given a hollow ring when we are found peering over their shoulders after every misreading of the Fourth Amendment. Second, our ability to perform our primary responsibilities can only be undermined by enlarging our self-appointed role as supervisors of the administration of justice in the state judicial systems. Dispositions such as that today can only encourage prosecutors to file in increasing numbers petitions for certiorari in relatively routine cases, and if we take it upon ourselves to review and correct every incorrect disposition of a federal question by every intermediate state appellate court, we will soon become so busy that we will either be unable to discharge our primary responsibilities effectively, or else be forced to make still another adjustment in the size of our staff in order to process cases effectively. We should focus our attention on methods of using our scarce resources wisely rather than laying another course of bricks in the building of a federal judicial bureaucracy. Third, and perhaps most fundamental, this case and cases like it pose disturbing questions concerning the Court's conception of its role. Each such case, considered individually, may be regarded as a welcome step forward in the never-ending war against crime. Such decisions are certain to receive widespread approbation, particularly by members of society who have been victimized by lawless conduct. But we must not forget that a central purpose of our written Constitution, and more specifically of its unique creation of a life-tenured federal judiciary, was to ensure that certain rights are firmly secured against possible oppression by the Federal or State Governments. As I wrote last Term: "I believe that in reviewing the decisions of state courts, the primary role of this Court is to make sure that persons who seek to vindicate federal rights have been fairly heard." (dissenting opinion). Yet the Court's recent history indicates that, at *386 least with respect to its summary dispositions, it has been primarily concerned with vindicating the will of the majority and less interested in its role as a protector of the individual's constitutional rights.[2] Since the beginning of the October 1981 Term, the Court has decided in summary fashion 19 cases, including this one, concerning the constitutional rights of persons accused or convicted of crimes. All 19 were decided on the petition of the warden or prosecutor, and in all he was successful in obtaining reversal of a decision upholding a claim of constitutional right.[3] I am not saying that none of these cases should have been decided summarily. But I am saying that this pattern of results, and in particular the fact that in its last two and one-half Terms the Court has been unwilling in even a single criminal case to employ its discretionary power of summary disposition in order to uphold a claim of constitutional right, is quite striking. It may well be true that there have been times when the Court *387 overused its power of summary disposition to protect the citizen against government overreaching. Nevertheless, the Court must be ever mindful of its primary role as the protector of the citizen and not the warden or the prosecutor. The Framers surely feared the latter more than the former. I respectfully dissent. |
Justice Burger | majority | false | Hynes v. Mayor and Council of Oradell | 1976-05-19T00:00:00 | null | https://www.courtlistener.com/opinion/109443/hynes-v-mayor-and-council-of-oradell/ | https://www.courtlistener.com/api/rest/v3/clusters/109443/ | 1,976 | 1975-091 | 2 | 7 | 1 | The question presented in this case is whether a municipal ordinance requiring advance notice to be given to the local police department by "[a]ny person desiring to canvass, solicit or call from house to house . . . for a recognized charitable cause . . . or . . . political campaign or cause . . . in writing, for identification only" violates the guarantees of freedom of speech and due process of law embodied in the Fourteenth Amendment.
(1)
The Borough of Oradell, N. J., has enacted two ordinances that together regulate most forms of door-to-door canvassing and solicitation. A broad ordinance, No. 573, requires all solicitors to obtain a permit from the borough clerk, by making a formal application, accompanied by a description and photograph of the applicant, the description and license number of any automobile to be used in soliciting, a driver's license, and other data. The ordinance apparently requires that the chief of police approve issuance of the permit.[1]
*612 The ordinance at issue here, Ordinance No. 598A, is an amendment to this broader scheme, and imposes no permit requirement; it covers persons soliciting for "a recognized charitable cause, or any person desiring to *613 canvass, solicit or call from house to house for a Federal, State, County or Municipal political campaign or cause." Ordinance No. 598A also applies to "representatives of Borough Civic Groups and Organizations and any veterans honorably discharged or released under honorable circumstances" from the Armed Forces. Those covered by this ordinance are required only to "notify the Police Department, in writing, for identification only." Once given, the notice is "good for the duration of the campaign or cause."[2]
*614 Appellants are Edward Hynes, a New Jersey state assemblyman whose district was redrawn in 1973 to include the Borough of Oradell, and three Oradell registered voters. They brought suit in the Superior Court of Bergen County, N. J., seeking a declaration that Ordinance No. 598A was unconstitutional and an injunction against its enforcement. Appellant Hynes alleged that he wished to campaign for re-election in Oradell. The other *615 appellants alleged either that they wished to canvass door to door in the borough for political causes or that they wished to speak with candidates who campaigned in Oradell. Each appellant claimed that the ordinance would unconstitutionally restrict such activity.
The Superior Court held the ordinance invalid for three reasons. First, the court noted that it contained no penalty clause, and hence was unenforceable under New Jersey law; second, the court held that the ordinance was not related to its announced purposethe prevention of crimesince it required only candidates and canvassers to register.[3] Finally, the court concluded that the ordinance was vague and overbroadunclear "as to what is, and what isn't required" of those who wished to canvass for political causes. The Appellate Division of the Superior Court affirmed, reaching and accepting only the first ground for the trial court's decision.
The Supreme Court of New Jersey reversed. 66 N. J. 376, 331 A.2d 277 (1975). It noted that a penalty clause, enacted during the pendency of the appeal, cured the defect that had concerned the Appellate Division. Relying largely on a decision in a case dealing with a similar ordinance, Collingswood v. Ringgold, 66 N. J. 350, 331 A.2d 262 (1975), appeal docketed, No. 74-1335, the court held that Ordinance No. 598A was a legitimate exercise of the borough's police power, enacted to prevent crime and to reduce residents' fears about strangers wandering door to door. The ordinance regulated conduct door-to-door canvassingas well as speech, and in doing so "it could hardly be more clear." 66 N. J., at 380, 331 A.2d, at 279. The ordinance, the court thought, imposed *616 minimal requirements which did not offend free speech interests:
"It may be satisfied in writing, suggesting that resort may be had to the mails. It need be fulfilled only once for each campaign. There is no fee. The applicant does not have to obtain or carry a card or license. And perhaps most importantly, no discretion reposes in any municipal official to deny the privilege of calling door to door. The ordinance is plainly an identification device in its most basic form." Ibid.
Two of the court's seven members dissented. One justice thought the ordinance "plain silly" as a crime-prevention measure, for the reasons given by the trial court. Id., at 382, 331 A.2d, at 280; another justice thought that the "ordinance has the potential to have a significant chilling effect on the exercise of first amendment rights and thus infringes on these rights." Id., at 389, 331 A.2d, at 284.
(2)
We are not without guideposts in considering appellants' First Amendment challenge to Ordinance No. 598A. "Adjustment of the inevitable conflict between free speech and other interests is a problem as persistent as it is perplexing," Niemotko v. Maryland, 340 U.S. 268, 275 (1951) (Frankfurter, J., concurring in result), and this Court has in several cases reviewed attempts by municipalities to regulate activities like canvassing and soliciting. Regulation in this area "must be done, and the restriction applied, in such a manner as not to intrude upon the rights of free speech and free assembly," Thomas v. Collins, 323 U.S. 516, 540-541 (1945). But in these very cases the Court has consistently recognized a municipality's power to protect its citizens from crime and undue annoyance by regulating *617 soliciting and canvassing. A narrowly drawn ordinance, that does not vest in municipal officials the undefined power to determine what messages residents will hear, may serve these important interests without running afoul of the First Amendment.
In Lovell v. Griffin, 303 U.S. 444 (1938), the Court held invalid an ordinance that prohibited the distribution of "literature of any kind . . . without first obtaining written permission from the City Manager," id., at 447. The ordinance contained "no restriction in its application with respect to time or place," and was "not limited to ways which might be regarded as inconsistent with the maintenance of public order or as involving disorderly conduct, the molestation of the inhabitants, or the misuse or littering of the streets." Id., at 451.
A year later, in Schneider v. State, 308 U.S. 147 (1939), the Court held unconstitutional an Irvington, N. J., ordinance that dealt specifically with house-to-house canvassers and solicitors. The ordinance required them to obtain a permit, which would not issue if the chief of police decided that "the canvasser is not of good character or is canvassing for a project not free from fraud." Id., at 158. Because the Court concluded that the canvasser's "liberty to communicate with the residents of the town at their homes depends upon the exercise of the officer's discretion," id., at 164, the Court held the ordinance invalid. In Cantwell v. Connecticut, 310 U.S. 296 (1940), the Court held that a similar permit ordinance, as applied to prevent Jehovah's Witnesses from soliciting door to door, infringed upon the right to free exercise of religion, guaranteed by the First and Fourteenth Amendments. And in Martin v. Struthers, 319 U.S. 141 (1943), the Court struck down a municipal ordinance that made it a crime for a solicitor or canvasser to knock on the front door *618 of a resident's home or ring the doorbell. See also Staub v. City of Baxley, 355 U.S. 313 (1958).
In reaching these results, the Court acknowledged the valid and important interests these ordinances sought to serve. In Martin, supra, at 144, Mr. Justice Black writing for the Court stated:
"Ordinances of the sort now before us may be aimed at the protection of the householders from annoyance, including intrusion upon the hours of rest, and at the prevention of crime. Constant callers, whether selling pots or distributing leaflets, may lessen the peaceful enjoyment of a home as much as a neighborhood glue factory or railroad yard which zoning ordinances may prohibit. . . . In addition, burglars frequently pose as canvassers, either in order that they may have a pretense to discover whether a house is empty and hence ripe for burglary, or for the purpose of spying out the premises in order that they may return later. Crime prevention may thus be the purpose of regulatory ordinances."
As Mr. Justice Black suggested, the lone housewife has no way of knowing whether the purposes of the putative solicitor are benign or malignant, and even an innocuous caller "may lessen the peaceful enjoyment of a home." Ibid. In his view a municipality "can by identification devices" regulate canvassers in order to deter criminal conduct by persons "posing as canvassers," id., at 148, relying on the Court's statement in Cantwell, supra, at 306:
"Without doubt a State may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his *619 identity and his authority to act for the cause which he purports to represent."
These opinions of the Court and the dissenting opinions found common ground as to the important municipal interests at stake. See Martin v. Struthers, supra, at 152 (Frankfurter, J., dissenting); id., at 154 (Reed, J., dissenting); Douglas v. Jeannette, 319 U.S. 157, 166 (1943) (Jackson, J., dissenting in Martin v. Struthers). Professor Zechariah Chafee articulated something of the householder's right to be let alone, saying:
"Of all the methods of spreading unpopular ideas, [house-to-house canvassing] seems the least entitled to extensive protection. The possibilities of persuasion are slight compared with the certainties of annoyance. Great as is the value of exposing citizens to novel views, home is one place where a man ought to be able to shut himself up in his own ideas if he desires." Free Speech in the United States 406 (1954).
Professor Chafee went on to note: "[These cases] do not invalidate all ordinances that include within their scope . . . doorway dissemination of thought. Several sentences in the opinions state that ordinances suitably designed to take care of legitimate social interests are not void." Id., at 407.
There is, of course, no absolute right under the Federal Constitution to enter on the private premises of another and knock on a door for any purpose, and the police power permits reasonable regulation for public safety. We cannot say, and indeed appellants do not argue, that door-to-door canvassing and solicitation are immune from regulation under the State's police power, whether the purpose of the regulation is to protect from danger or to protect the peaceful enjoyment of the home. See *620 Rowan v. Post Office Dept., 397 U.S. 728, 735-738 (1970).
(3)
There remains the question whether the challenged ordinance meets the test that in the First Amendment area "government may regulate . . . only with narrow specificity." NAACP v. Button, 371 U.S. 415, 433 (1963). As a matter of due process, "[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids." Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). The general test of vagueness applies with particular force in review of laws dealing with speech. "[S]tricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech; a man may the less be 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). See also Buckley v. Valeo, 424 U.S. 1, 76-82 (1976); Broadrick v. Oklahoma, 413 U.S. 601, 611-612 (1973).
Notwithstanding the undoubted power of a municipality to enforce reasonable regulations to meet the needs recognized by the Court in the cases discussed, we conclude that Ordinance No. 598A must fall because in certain respects "men of common intelligence must necessarily guess at its meaning." Connally v. General Constr. Co., 269 U.S. 385, 391 (1926). Since we conclude that the ordinance is invalid because of vagueness, we need not reach the other arguments appellants advance.[4]
*621 First, the coverage of the ordinance is unclear; it does not explain, for example, whether a "recognized charitable cause" means one recognized by the Internal Revenue Service as tax exempt, one recognized by some community agency, or one approved by some municipal official. While it is fairly clear what the phrase "political campaign" comprehends, it is not clear what is meant by a "Federal, State, County or Municipal . . . cause." Finally, it is not clear what groups fall into the class of "Borough Civic Groups and Organizations" that the ordinance also covers.[5]
Second, the ordinance does not sufficiently specify what those within its reach must do in order to comply. The citizen is informed that before soliciting he must "notify the Police Department, in writing, for identification only." But he is not told what must be set forth in the notice, or what the police will consider sufficient as "identification." This is in marked contrast to Ordinance No. 573 which sets out specifically what is required of commercial solicitors; it is not clear that the provisions of Ordinance 573 extend to Ordinance 598A. See n. 1, supra. Ordinance No. 598A does not have comparable precision. The New Jersey Supreme Court construed the ordinance to permit one to send the required identification by mail; a canvasser who used the mail might well findtoo latethat the identification *622 he provided by mail was inadequate. In this respect, as well as with respect to the coverage of the ordinance, this law "may trap the innocent by not providing fair warning." Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Nor does the ordinance "provide explicit standards for those who apply" it. Ibid. To the extent that these ambiguities and the failure to explain what "identification" is required give police the effective power to grant or deny permission to canvass for political causes, the ordinance suffers in its practical effect from the vice condemned in Lovell, Schneider, Cantwell, and Staub. See also Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972); Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971); Note, The Voidfor-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, 75-85 (1960).
The New Jersey Supreme Court undertook to give the ordinance a limiting construction by suggesting that since the identification requirement "may be satisfied in writing,. . . resort may be had to the mails," 66 N. J., at 380, 331 A.2d, at 279, but this construction of the ordinance does not explain either what the law covers or what it requires; for example, it provides no clue as to what is a "recognized charity"; nor is political "cause" defined. Cf. Colten v. Kentucky, 407 U.S. 104, 110-111 (1972); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Cox v. New Hampshire, 312 U.S. 569 (1941). Even assuming that a more explicit limiting interpretation of the ordinance could remedy the flaws we have pointed out a matter on which we intimate no viewwe are without power to remedy the defects by giving the ordinance constitutionally precise content.[6]Smith v. Goguen, 415 U.S. 566, 575 (1974).
*623 Accordingly, the judgment is reversed, and the case is remanded to the Supreme Court of New Jersey for further proceedings not inconsistent with this opinion.
It is so ordered.
MR. JUSTICE STEVENS took no part in the consideration or decision of this case.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, concurring in part.
I join Part 3 of the Court's opinion holding that Oradell Ordinance No. 598A must be invalidated as impermissibly vague. The Court reserves decision on other constitutional contentions alleged to invalidate the ordinance. Ante, at 620-621, n. 4. Despite this reservation, Part 2 of the Court's opinion may be read as suggesting that, vagueness defects aside, an ordinance of this kind would ordinarily withstand constitutional attack. Because I believe that such ordinances must encounter substantial First Amendment barriers besides vagueness, I cannot join Part 2 and briefly state my reasons.
In considering the validity of laws regulating door-to-door solicitation and canvassing, Mr. Justice Black, speaking for the Court in Martin v. Struthers, 319 U. S. *624 141 (1943), properly recognized that municipalities have an important interest in keeping neighborhoods safe and peaceful. But unlike the Court today, he did not stop there. Rather, he emphasized the other side of the equationthat door-to-door solicitation and canvassing is a method of communication essential to the preservation of our free society. He said:
"While door to door distributers of literature may be either a nuisance or a blind for criminal activities, they may also be useful members of society engaged in the dissemination of ideas in accordance with the best tradition of free discussion. The widespread use of this method of communication by many groups espousing various causes attests its major importance. `Pamphlets have proved most effective instruments in the dissemination of opinion. And perhaps the most effective way of bringing them to the notice of individuals is their distribution at the homes of the people.' Schneider v. State, [308 U.S. 147, 164 (1939)]. Many of our most widely established religious organizations have used this method of disseminating their doctrines, and laboring groups have used it in recruiting their members. The federal government, in its current war bond selling campaign, encourages groups of citizens to distribute advertisements and circulars from house to house. Of course, as every person acquainted with political life knows, door to door campaigning is one of the most accepted techniques of seeking popular support, while the circulation of nominating papers would be greatly handicapped if they could not be taken to the citizens in their homes. Door to door distribution of circulars is essential to the poorly financed causes of little people." Id., at 145-146.
It can hardly be denied that an ordinance requiring *625 the door-to-door campaigner to identify himself discourages free speech. Talley v. California, 362 U.S. 60 (1960), invalidated a Los Angeles ordinance requiring handbills to carry the name and address of persons writing, printing, or distributing them. Since the requirement destroyed anonymity, "[t]here [could] be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression," id., at 64, for:
"Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. . . . Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes." Id., at 64-65.
No less may be said of anonymity sought to be preserved in the door-to-door exposition of ideas. That anonymity is destroyed by an identification requirement like the Oradell ordinance.[1] "[I]dentification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance," id., at 65, particularly where door-to-door solicitation seeks discussion of sensitive and controversial issues, such as civilian police *626 review boards, the decriminalization of specified types of conduct, or the recall of an elected police official. Deplorably, apprehension of reprisal by the average citizen is too often well founded. The national scene in recent times has regrettably provided many instances of penalties for controversial expression in the form of vindictive harassment, discriminatory law enforcement, executive abuse of administrative powers, and intensive government surveillance.[2]
Nor is the threat to free expression by ordinances of this type limited to their jeopardization of anonymity. Perhaps an even greater threat lies in the impermissible burden they impose upon political expression, the core conduct protected by the First Amendment.[3] Unquestionably, *627 the lifeblood of today's political campaigning must be the work of volunteers. The oppressive financial burden of campaigns makes reliance on volunteers *628 absolutely essential and, in light of the enormous significance of citizen participation to the preservation and strength of the democratic ideal, absolutely desirable, indeed indispensable. Offensive to the sensibilities of private citizens, identification requirements such as the Oradell ordinance, even in their least intrusive form, must discourage that participation.
I recognize that there are governmental interests that may justify restraints on free speech. But in the area of First Amendment protections, "[t]he rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice. . . . Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending." Thomas v. Collins, 323 U.S. 516, 530 (1945). Restraints implicit in identification requirements, however, extend beyond restrictions on time and placethey chill discussion itself. The Oradell type of ordinance therefore raises substantial First Amendment questions not presented by the usual time, place, and manner regulation.[4] See Grayned v. City of Rockford, *629 408 U.S. 104, 115 (1972). Under the ordinance, no authentication of identity need be submitted, and therefore the requirement can be easily evaded.[5] In that circumstance, the requirement can hardly be justified as protective of overriding governmental interests since evasion can easily thwart that objective. See Buckley v. Valeo, 424 U.S. 1, 45 (1976). But imposition of more burdensome identification requirements, such as authentication, would doubtless only serve further to discourage protected activity and, therefore, not eliminate the First Amendment difficulty. Moreover, the purported aid to crime prevention provided by identification of solicitors is not so self-evident as to relieve the State of the burden of proving that this asserted interest would be served. What Mr. Justice Harlan said of the handbill ordinance invalidated in Talley may equally be said of ordinances of the Oradell type:
"Here the State says that this ordinance is aimed at the prevention of `fraud, deceit, false advertising, negligent use of words, obscenity, and libel,' in that *630 it will aid in the detection of those responsible for spreading material of that character. But the ordinance is not so limited, and I think it will not do for the State simply to say that the circulation of all anonymous handbills must be suppressed in order to identify the distributors of those that may be of an obnoxious character. In the absence of a more substantial showing as to Los Angeles' actual experience with the distribution of obnoxious handbills, such a generality is for me too remote to furnish a constitutionally acceptable justification for the deterrent effect on free speech which this all-embracing ordinance is likely to have." 362 U.S., at 66-67 (concurring opinion).[6]
Contrary to the thrust of Part 2 of the Court's opinion, it seems inescapable that ordinances of the Oradell type, however precisely drafted to avoid the pitfalls of vagueness, must present substantial First Amendment questions. The imperiling of precious constitutional values, for reasons however justifiable, cannot be taken lightly. The prevention of crime is, of course, one of the most serious of modern-day problems. But our perception as individuals of the need to solve that particular problem should not color our judgment as to the constitutionality of measures aimed at that end.
MR. | The question presented in this case is whether a municipal ordinance requiring advance notice to be given to the local police department by "[a]ny person desiring to canvass, solicit or call from house to house for a recognized charitable cause or political campaign or cause in writing, for identification only" violates the guarantees of freedom of speech and due process of law embodied in the Fourteenth Amendment. () The Borough of Oradell, N. J., has enacted two ordinances that together regulate most forms of door-to-door canvassing and solicitation. A broad ordinance, No. 573, requires all solicitors to obtain a permit from the borough clerk, by making a formal application, accompanied by a description and photograph of the applicant, the description and license number of any automobile to be used in soliciting, a driver's license, and other data. The ordinance apparently requires that the chief of police approve issuance of the permit.[] *62 The ordinance at issue here, Ordinance No. 598A, is an amendment to this broader scheme, and imposes no permit requirement; it covers persons soliciting for "a recognized charitable cause, or any person desiring to *63 canvass, solicit or call from house to house for a Federal, State, County or Municipal political campaign or cause." Ordinance No. 598A also applies to "representatives of Borough Civic Groups and Organizations and any veterans honorably discharged or released under honorable circumstances" from the Armed Forces. Those covered by this ordinance are required only to "notify the Police Department, in writing, for identification only." Once given, the notice is "good for the duration of the campaign or cause."[2] *64 Appellants are Edward Hynes, a New Jersey state assemblyman whose district was redrawn in 973 to include the Borough of Oradell, and three Oradell registered voters. They brought suit in the Superior Court of Bergen County, N. J., seeking a declaration that Ordinance No. 598A was unconstitutional and an injunction against its enforcement. Appellant Hynes alleged that he wished to campaign for re-election in Oradell. The other *65 appellants alleged either that they wished to canvass door to door in the borough for political causes or that they wished to speak with candidates who campaigned in Oradell. Each appellant claimed that the ordinance would unconstitutionally restrict such activity. The Superior Court held the ordinance invalid for three reasons. First, the court noted that it contained no penalty clause, and hence was unenforceable under New Jersey law; second, the court held that the ordinance was not related to its announced purposethe prevention of crimesince it required only candidates and canvassers to register.[3] Finally, the court concluded that the ordinance was vague and overbroadunclear "as to what is, and what isn't required" of those who wished to canvass for political causes. The Appellate Division of the Superior Court affirmed, reaching and accepting only the first ground for the trial court's decision. The Supreme Court of New Jersey reversed. 66 N. J. 376, It noted that a penalty clause, enacted during the pendency of the appeal, cured the defect that had concerned the Appellate Division. Relying largely on a decision in a case dealing with a similar ordinance, appeal docketed, No. 74-335, the court held that Ordinance No. 598A was a legitimate exercise of the borough's police power, enacted to prevent crime and to reduce residents' fears about strangers wandering door to door. The ordinance regulated conduct door-to-door canvassingas well as speech, and in doing so "it could hardly be more clear." 66 N. J., at The ordinance, the court thought, imposed *66 minimal requirements which did not offend free speech interests: "It may be satisfied in writing, suggesting that resort may be had to the mails. It need be fulfilled only once for each campaign. There is no fee. The applicant does not have to obtain or carry a card or license. And perhaps most importantly, no discretion reposes in any municipal official to deny the privilege of calling door to door. The ordinance is plainly an identification device in its most basic form." Two of the court's seven members dissented. One justice thought the ordinance "plain silly" as a crime-prevention measure, for the reasons given by the trial court. ; another justice thought that the "ordinance has the potential to have a significant chilling effect on the exercise of first amendment rights and thus infringes on these rights." (2) We are not without guideposts in considering appellants' First Amendment challenge to Ordinance No. 598A. "Adjustment of the inevitable conflict between free speech and other interests is a problem as persistent as it is perplexing," and this Court has in several cases reviewed attempts by municipalities to regulate activities like canvassing and soliciting. Regulation in this area "must be done, and the restriction applied, in such a manner as not to intrude upon the rights of free speech and free assembly," But in these very cases the Court has consistently recognized a municipality's power to protect its citizens from crime and undue annoyance by regulating *67 soliciting and canvassing. A narrowly drawn ordinance, that does not vest in municipal officials the undefined power to determine what messages residents will hear, may serve these important interests without running afoul of the First Amendment. In the Court held invalid an ordinance that prohibited the distribution of "literature of any kind without first obtaining written permission from the City Manager," The ordinance contained "no restriction in its application with respect to time or place," and was "not limited to ways which might be regarded as inconsistent with the maintenance of public order or as involving disorderly conduct, the molestation of the inhabitants, or the misuse or littering of the streets." A year later, in the Court held unconstitutional an Irvington, N. J., ordinance that dealt specifically with house-to-house canvassers and solicitors. The ordinance required them to obtain a permit, which would not issue if the chief of police decided that "the canvasser is not of good character or is canvassing for a project not free from fraud." Because the Court concluded that the canvasser's "liberty to communicate with the residents of the town at their homes depends upon the exercise of the officer's discretion," the Court held the ordinance invalid. In the Court held that a similar permit ordinance, as applied to prevent Jehovah's Witnesses from soliciting door to door, infringed upon the right to free exercise of religion, guaranteed by the First and Fourteenth Amendments. And in the Court struck down a municipal ordinance that made it a crime for a solicitor or canvasser to knock on the front door *68 of a resident's home or ring the doorbell. See also In reaching these results, the Court acknowledged the valid and important interests these ordinances sought to serve. In Mr. Justice Black writing for the Court stated: "Ordinances of the sort now before us may be aimed at the protection of the householders from annoyance, including intrusion upon the hours of rest, and at the prevention of crime. Constant callers, whether selling pots or distributing leaflets, may lessen the peaceful enjoyment of a home as much as a neighborhood glue factory or railroad yard which zoning ordinances may prohibit. In addition, burglars frequently pose as canvassers, either in order that they may have a pretense to discover whether a house is empty and hence ripe for burglary, or for the purpose of spying out the premises in order that they may return later. Crime prevention may thus be the purpose of regulatory ordinances." As Mr. Justice Black suggested, the lone housewife has no way of knowing whether the purposes of the putative solicitor are benign or malignant, and even an innocuous caller "may lessen the peaceful enjoyment of a home." In his view a municipality "can by identification devices" regulate canvassers in order to deter criminal conduct by persons "posing as canvassers," relying on the Court's statement in at 306: "Without doubt a State may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his *69 identity and his authority to act for the cause which he purports to represent." These opinions of the Court and the dissenting opinions found common ground as to the important municipal interests at stake. See ; ; (Jackson, J., dissenting in ). Professor Zechariah Chafee articulated something of the householder's right to be let alone, saying: "Of all the methods of spreading unpopular ideas, [house-to-house canvassing] seems the least entitled to extensive protection. The possibilities of persuasion are slight compared with the certainties of annoyance. Great as is the value of exposing citizens to novel views, home is one place where a man ought to be able to shut himself up in his own ideas if he desires." Free Speech in the United States 406 (954). Professor Chafee went on to note: "[These cases] do not invalidate all ordinances that include within their scope doorway dissemination of thought. Several sentences in the opinions state that ordinances suitably designed to take care of legitimate social interests are not void." There is, of course, no absolute right under the Federal Constitution to enter on the private premises of another and knock on a door for any purpose, and the police power permits reasonable regulation for public safety. We cannot say, and indeed appellants do not argue, that door-to-door canvassing and solicitation are immune from regulation under the State's police power, whether the purpose of the regulation is to protect from danger or to protect the peaceful enjoyment of the home. See *620 (3) There remains the question whether the challenged ordinance meets the test that in the First Amendment area "government may regulate only with narrow specificity." As a matter of due process, "[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids." The general test of vagueness applies with particular force in review of laws dealing with speech. "[S]tricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser." See also ; Notwithstanding the undoubted power of a municipality to enforce reasonable regulations to meet the needs recognized by the Court in the cases discussed, we conclude that Ordinance No. 598A must fall because in certain respects "men of common intelligence must necessarily guess at its meaning." Since we conclude that the ordinance is invalid because of vagueness, we need not reach the other arguments appellants advance.[4] *62 First, the coverage of the ordinance is unclear; it does not explain, for example, whether a "recognized charitable cause" means one recognized by the Internal Revenue Service as tax exempt, one recognized by some community agency, or one approved by some municipal official. While it is fairly clear what the phrase "political campaign" comprehends, it is not clear what is meant by a "Federal, State, County or Municipal cause." Finally, it is not clear what groups fall into the class of "Borough Civic Groups and Organizations" that the ordinance also covers.[5] Second, the ordinance does not sufficiently specify what those within its reach must do in order to comply. The citizen is informed that before soliciting he must "notify the Police Department, in writing, for identification only." But he is not told what must be set forth in the notice, or what the police will consider sufficient as "identification." This is in marked contrast to Ordinance No. 573 which sets out specifically what is required of commercial solicitors; it is not clear that the provisions of Ordinance 573 extend to Ordinance 598A. See n. Ordinance No. 598A does not have comparable precision. The New Jersey Supreme Court construed the ordinance to permit one to send the required identification by mail; a canvasser who used the mail might well findtoo latethat the identification *622 he provided by mail was inadequate. In this respect, as well as with respect to the coverage of the ordinance, this law "may trap the innocent by not providing fair warning." 408 U.S. 04, 08 (972). Nor does the ordinance "provide explicit standards for those who apply" it. To the extent that these ambiguities and the failure to explain what "identification" is required give police the effective power to grant or deny permission to canvass for political causes, the ordinance suffers in its practical effect from the vice condemned in Lovell, Schneider, and Staub. See also 405 U.S. 56, 62 (972); 402 U.S. 6, 64 (97); Note, The Voidfor-Vagueness Doctrine in the Supreme Court, 09 U. Pa. L. Rev. 67, (960). The New Jersey Supreme Court undertook to give the ordinance a limiting construction by suggesting that since the identification requirement "may be satisfied in writing,. resort may be had to the mails," 66 N. J., at but this construction of the ordinance does not explain either what the law covers or what it requires; for example, it provides no clue as to what is a "recognized charity"; nor is political "cause" defined. Cf. 407 U.S. 04, 0- (972); 35 U.S. 568 (942); 32 U.S. 569 (94). Even assuming that a more explicit limiting interpretation of the ordinance could remedy the flaws we have pointed out a matter on which we intimate no viewwe are without power to remedy the defects by giving the ordinance constitutionally precise U.S. 566, (974). *623 Accordingly, the judgment is reversed, and the case is remanded to the Supreme Court of New Jersey for further proceedings not inconsistent with this opinion. It is so ordered. MR. JUSTICE STEVENS took no part in the consideration or decision of this case. MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, concurring in part. I join Part 3 of the Court's opinion holding that Oradell Ordinance No. 598A must be invalidated as impermissibly vague. The Court reserves decision on other constitutional contentions alleged to invalidate the ordinance. Ante, at 620-62, n. 4. Despite this reservation, Part 2 of the Court's opinion may be read as suggesting that, vagueness defects aside, an ordinance of this kind would ordinarily withstand constitutional attack. Because I believe that such ordinances must encounter substantial First Amendment barriers besides vagueness, I cannot join Part 2 and briefly state my reasons. In considering the validity of laws regulating door-to-door solicitation and canvassing, Mr. Justice Black, speaking for the Court in 39 U. S. *624 4 properly recognized that municipalities have an important interest in keeping neighborhoods safe and peaceful. But unlike the Court today, he did not stop there. Rather, he emphasized the other side of the equationthat door-to-door solicitation and canvassing is a method of communication essential to the preservation of our free society. He said: "While door to door distributers of literature may be either a nuisance or a blind for criminal activities, they may also be useful members of society engaged in the dissemination of ideas in accordance with the best tradition of free discussion. The widespread use of this method of communication by many groups espousing various causes attests its major importance. `Pamphlets have proved most effective instruments in the dissemination of opinion. And perhaps the most effective way of bringing them to the notice of individuals is their distribution at the homes of the people.' [, 64 ]. Many of our most widely established religious organizations have used this method of disseminating their doctrines, and laboring groups have used it in recruiting their members. The federal government, in its current war bond selling campaign, encourages groups of citizens to distribute advertisements and circulars from house to house. Of course, as every person acquainted with political life knows, door to door campaigning is one of the most accepted techniques of seeking popular support, while the circulation of nominating papers would be greatly handicapped if they could not be taken to the citizens in their homes. Door to door distribution of circulars is essential to the poorly financed causes of little people." at -46. It can hardly be denied that an ordinance requiring *625 the door-to-door campaigner to identify himself discourages free speech. (960), invalidated a Los Angeles ordinance requiring handbills to carry the name and address of persons writing, printing, or distributing them. Since the requirement destroyed anonymity, "[t]here [could] be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression," for: "Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes." -65. No less may be said of anonymity sought to be preserved in the door-to-door exposition of ideas. That anonymity is destroyed by an identification requirement like the Oradell ordinance.[] "[I]dentification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance," particularly where door-to-door solicitation seeks discussion of sensitive and controversial issues, such as civilian police *626 review boards, the decriminalization of specified types of conduct, or the recall of an elected police official. Deplorably, apprehension of reprisal by the average citizen is too often well founded. The national scene in recent times has regrettably provided many instances of penalties for controversial expression in the form of vindictive harassment, discriminatory law enforcement, executive abuse of administrative powers, and intensive government surveillance.[2] Nor is the threat to free expression by ordinances of this type limited to their jeopardization of anonymity. Perhaps an even greater threat lies in the impermissible burden they impose upon political expression, the core conduct protected by the First Amendment.[3] Unquestionably, *627 the lifeblood of today's political campaigning must be the work of volunteers. The oppressive financial burden of campaigns makes reliance on volunteers *628 absolutely essential and, in light of the enormous significance of citizen participation to the preservation and strength of the democratic ideal, absolutely desirable, indeed indispensable. Offensive to the sensibilities of private citizens, identification requirements such as the Oradell ordinance, even in their least intrusive form, must discourage that participation. I recognize that there are governmental interests that may justify restraints on free speech. But in the area of First Amendment protections, "[t]he rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending." Restraints implicit in identification requirements, however, extend beyond restrictions on time and placethey chill discussion itself. The Oradell type of ordinance therefore raises substantial First Amendment questions not presented by the usual time, place, and manner regulation.[4] See *629 408 U.S. 04, 5 (972). Under the ordinance, no authentication of identity need be submitted, and therefore the requirement can be easily evaded.[5] In that circumstance, the requirement can hardly be justified as protective of overriding governmental interests since evasion can easily thwart that objective. See But imposition of more burdensome identification requirements, such as authentication, would doubtless only serve further to discourage protected activity and, therefore, not eliminate the First Amendment difficulty. Moreover, the purported aid to crime prevention provided by identification of solicitors is not so self-evident as to relieve the State of the burden of proving that this asserted interest would be served. What Mr. Justice Harlan said of the handbill ordinance invalidated in Talley may equally be said of ordinances of the Oradell type: "Here the State says that this ordinance is aimed at the prevention of `fraud, deceit, false advertising, negligent use of words, obscenity, and libel,' in that *630 it will aid in the detection of those responsible for spreading material of that character. But the ordinance is not so limited, and I think it will not do for the State simply to say that the circulation of all anonymous handbills must be suppressed in order to identify the distributors of those that may be of an obnoxious character. In the absence of a more substantial showing as to Los Angeles' actual experience with the distribution of obnoxious handbills, such a generality is for me too remote to furnish a constitutionally acceptable justification for the deterrent effect on free speech which this all-embracing ordinance is likely to have." -67[6] Contrary to the thrust of Part 2 of the Court's opinion, it seems inescapable that ordinances of the Oradell type, however precisely drafted to avoid the pitfalls of vagueness, must present substantial First Amendment questions. The imperiling of precious constitutional values, for reasons however justifiable, cannot be taken lightly. The prevention of crime is, of course, one of the most serious of modern-day problems. But our perception as individuals of the need to solve that particular problem should not color our judgment as to the constitutionality of measures aimed at that end. MR. |
Justice O'Connor | concurring | false | Rompilla v. Beard | 2005-06-20T00:00:00 | null | https://www.courtlistener.com/opinion/799980/rompilla-v-beard/ | https://www.courtlistener.com/api/rest/v3/clusters/799980/ | 2,005 | 2004-065 | 2 | 5 | 4 | I write separately to put to rest one concern. The dissent worries that the Court's opinion "imposes on defense counsel a rigid requirement to review all documents in what it calls the `case file' of any prior conviction that the prosecution might rely on at trial." Post, at 396 (opinion of KENNEDY, J.). But the Court's opinion imposes no such rule. See ante, at 389-390. Rather, today's decision simply applies *394 our longstanding case-by-case approach to determining whether an attorney's performance was unconstitutionally deficient under Strickland v. Washington, 466 U.S. 668 (1984). Trial counsel's performance in Rompilla's case falls short under that standard, because the attorneys' behavior was not "reasonable considering all the circumstances." Id., at 688. In particular, there were three circumstances which made the attorneys' failure to examine Rompilla's prior conviction file unreasonable.
First, Rompilla's attorneys knew that their client's prior conviction would be at the very heart of the prosecution's case. The prior conviction went not to a collateral matter, but rather to one of the aggravating circumstances making Rompilla eligible for the death penalty. The prosecutors intended not merely to mention the fact of prior conviction, but to read testimony about the details of the crime. That crime, besides being quite violent in its own right, was very similar to the murder for which Rompilla was on trial, and Rompilla had committed the murder at issue a mere three months after his release from prison on the earlier conviction. In other words, the prosecutor clearly planned to use details of the prior crime as powerful evidence that Rompilla was a dangerous man for whom the death penalty would be both appropriate punishment and a necessary means of incapacitation. Cf. App. 165-166 (prosecutor's penalty-phase argument). This was evidence the defense should have been prepared to meet: A reasonable defense lawyer would have attached a high importance to obtaining the record of the prior trial, in order to anticipate and find ways of deflecting the prosecutor's aggravation argument.
Second, the prosecutor's planned use of the prior conviction threatened to eviscerate one of the defense's primary mitigation arguments. Rompilla was convicted on the basis of strong circumstantial evidence. His lawyers structured the entire mitigation argument around the hope of convincing the jury that residual doubt about Rompilla's guilt made *395 it inappropriate to impose the death penalty. In announcing an intention to introduce testimony about Rompilla's similar prior offense, the prosecutor put Rompilla's attorneys on notice that the prospective defense on mitigation likely would be ineffective and counterproductive. The similarities between the two crimes, combined with the timing and the already strong circumstantial evidence, raised a strong likelihood that the jury would reject Rompilla's residual doubt argument. Rompilla's attorneys' reliance on this transparently weak argument risked damaging their credibility. Such a scenario called for further investigation, to determine whether circumstances of the prior case gave any hope of saving the residual doubt argument, or whether the best strategy instead would be to jettison that argument so as to focus on other, more promising issues. Cf. Yarborough v. Gentry, 540 U.S. 1, 7 (2003) (per curiam); Bell v. Cone, 535 U.S. 685, 700 (2002) (noting that sound tactical judgment may sometimes call for omitting certain defense evidence or arguments).
Third, the attorneys' decision not to obtain Rompilla's prior conviction file was not the result of an informed tactical decision about how the lawyers' time would best be spent. Although Rompilla's attorneys had ample warning that the details of Rompilla's prior conviction would be critical to their case, their failure to obtain that file would not necessarily have been deficient if it had resulted from the lawyers' careful exercise of judgment about how best to marshal their time and serve their client. But Rompilla's attorneys did not ignore the prior case file in order to spend their time on other crucial leads. They did not determine that the file was so inaccessible or so large that examining it would necessarily divert them from other trial-preparation tasks they thought more promising. They did not learn at the 11th hour about the prosecution's intent to use the prior conviction, when it was too late for them to change plans. Rather, their failure to obtain the crucial file "was the result of inattention, *396 not reasoned strategic judgment." Wiggins v. Smith, 539 U.S. 510, 534 (2003). As a result, their conduct fell below constitutionally required standards. See id., at 533 ("`[S]trategic choices made after less than complete investigation are reasonable' only to the extent that `reasonable professional judgments support the limitations on investigation'" (quoting Strickland, 466 U. S., at 690-691)).
In the particular circumstances of this case, the attorneys' failure to obtain and review the case file from their client's prior conviction did not meet standards of "reasonable professional judgmen[t]." Id., at 691. Because the Court's opinion is consistent with the "`case-by-case examination of the evidence'" called for under our cases, Williams v. Taylor, 529 U.S. 362, 391 (2000), I join the opinion. | I write separately to put to rest one concern. The dissent worries that the Court's opinion "imposes on defense counsel a rigid requirement to review all documents in what it calls the `case file' of any prior conviction that the prosecution might rely on at trial." Post, at 396 (opinion of KENNEDY, J.). But the Court's opinion imposes no such rule. See ante, at 389-390. Rather, today's decision simply applies *394 our longstanding case-by-case approach to determining whether an attorney's performance was unconstitutionally deficient under Trial counsel's performance in Rompilla's case falls short under that standard, because the attorneys' behavior was not "reasonable considering all the circumstances." In particular, there were three circumstances which made the attorneys' failure to examine Rompilla's prior conviction file unreasonable. First, Rompilla's attorneys knew that their client's prior conviction would be at the very heart of the prosecution's case. The prior conviction went not to a collateral matter, but rather to one of the aggravating circumstances making Rompilla eligible for the death penalty. The prosecutors intended not merely to mention the fact of prior conviction, but to read testimony about the details of the crime. That crime, besides being quite violent in its own right, was very similar to the murder for which Rompilla was on trial, and Rompilla had committed the murder at issue a mere three months after his release from prison on the earlier conviction. In other words, the prosecutor clearly planned to use details of the prior crime as powerful evidence that Rompilla was a dangerous man for whom the death penalty would be both appropriate punishment and a necessary means of incapacitation. Cf. App. 165-166 (prosecutor's penalty-phase argument). This was evidence the defense should have been prepared to meet: A reasonable defense lawyer would have attached a high importance to obtaining the record of the prior trial, in order to anticipate and find ways of deflecting the prosecutor's aggravation argument. Second, the prosecutor's planned use of the prior conviction threatened to eviscerate one of the defense's primary mitigation arguments. Rompilla was convicted on the basis of strong circumstantial evidence. His lawyers structured the entire mitigation argument around the hope of convincing the jury that residual doubt about Rompilla's guilt made *395 it inappropriate to impose the death penalty. In announcing an intention to introduce testimony about Rompilla's similar prior offense, the prosecutor put Rompilla's attorneys on notice that the prospective defense on mitigation likely would be ineffective and counterproductive. The similarities between the two crimes, combined with the timing and the already strong circumstantial evidence, raised a strong likelihood that the jury would reject Rompilla's residual doubt argument. Rompilla's attorneys' reliance on this transparently weak argument risked damaging their credibility. Such a scenario called for further investigation, to determine whether circumstances of the prior case gave any hope of saving the residual doubt argument, or whether the best strategy instead would be to jettison that argument so as to focus on other, more promising issues. Cf. ; 00 Third, the attorneys' decision not to obtain Rompilla's prior conviction file was not the result of an informed tactical decision about how the lawyers' time would best be spent. Although Rompilla's attorneys had ample warning that the details of Rompilla's prior conviction would be critical to their case, their failure to obtain that file would not necessarily have been deficient if it had resulted from the lawyers' careful exercise of judgment about how best to marshal their time and serve their client. But Rompilla's attorneys did not ignore the prior case file in order to spend their time on other crucial leads. They did not determine that the file was so inaccessible or so large that examining it would necessarily divert them from other trial-preparation tasks they thought more promising. They did not learn at the 11th hour about the prosecution's intent to use the prior conviction, when it was too late for them to change plans. Rather, their failure to obtain the crucial file "was the result of inattention, *396 not reasoned strategic judgment." As a result, their conduct fell below constitutionally required standards. See ("`[S]trategic choices made after less than complete investigation are reasonable' only to the extent that `reasonable professional judgments support the limitations on investigation'" (quoting -691)). In the particular circumstances of this case, the attorneys' failure to obtain and review the case file from their client's prior conviction did not meet standards of "reasonable professional judgmen[t]." Because the Court's opinion is consistent with the "`case-by-case examination of the evidence'" called for under our cases, I join the opinion. |
Justice Douglas | dissenting | true | United States v. Armour & Co. | 1970-06-01T00:00:00 | null | https://www.courtlistener.com/opinion/108156/united-states-v-armour-co/ | https://www.courtlistener.com/api/rest/v3/clusters/108156/ | 1,970 | 1969-105 | 1 | 5 | 1 | I dissent from dismissal of the case as moot.
In an historic consent decree the giant meatpackers were separated in a complete and continuing way from the general food business, the District Court retaining in the customary way the power to grant additional *269 relief, at the foot of the decree. Some years later motions to vacate the decree were made, and a judgment overruling them was affirmed by this Court. Swift & Co. v. United States, 276 U.S. 311. Later Armour and other meatpacker defendants, claiming that conditions in the food business had changed, sought modifications of the decree to relieve them from the structural bars against engaging in various aspects of the general food and retail meat business. That effort was also unsuccessful. United States v. Swift & Co., 286 U.S. 106. Later, another attempt was made to obtain similar relief and it too failed. United States v. Swift & Co., 189 F. Supp. 885, aff'd, 367 U.S. 909.
Armour is now the second largest meatpacker in the Nation. General Host is engaged in the food products business; it operates some 380 grocery stores, and some lodges, restaurants, and coffee shops. It is, in other words, engaged in lines of business from which Armour, as a party to the decree, would be barred, whether it did so directly or through stock ownership.
Against the resistance of Armour, General Host, which held about 16 1/2% of Armour's outstanding stock, undertook to acquire at least 51% of it. The United States asked the District Court having jurisdiction over the meatpackers consent decree to make General Host a party under § 5 of the Sherman Act, 26 Stat. 210, as amended, 15 U.S. C. § 5. The refusal of the District Court to do so was, I think, error. After the District Court's ruling. General Host acquired 57% of Armour's stock. As a result, a species of the monopoly at which the consent decree was aimed was achieved.
General Host, it appears, has now transferred, pursuant to authority of the Interstate Commerce Commission, its Armour stock to Greyhound Corporation. It is alleged that Greyhound, like General Host, is engaged in food business prohibited to Armour under the *270 decree. The United States contends that Greyhound's control of Armour is as inconsistent with the decree as General Host's control. Greyhound, the United States states, owns other food interests that Armour could not own by virtue of the decree.
Neither General Host nor Greyhound could, of course, be held in contempt under the decree as it is written, for they were not parties. But they presumably knew of the decree and seemingly fashioned a procedure to circumvent it. The District Court had ample power under § 5 of the Sherman Act, to restrain General Host from frustrating the decree, for § 5 provides:
"Whenever it shall appear to the court before which any proceeding under section 4 of this title may be pending, that the ends of justice require that other parties should be brought before the court, the court may cause them to be summoned, whether they reside in the district in which the court is held or not; and subpoenas to that end may be served in any district by the marshal thereof."
General Host and Greyhound would have, of course, the opportunity to litigate the question whether their acts do interfere with the decree before any citation for contempt.
Moreover, Rule 25 (c) of the Federal Rules of Civil Procedure provides:
"In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (a) of this rule."
Unless the District Court proceeds against General Host and Greyhound to supplement the decree, there *271 may be no remedy. Without the hearing I urge, they cannot be punished for contempt. Armour, though a party to the decree, was the victim of its violation, not a participant.
Under the decree Armour could not acquire either General Host or Greyhound. Yet the combination of meat-packers with food products arguably is realized whether Armour acquired them, or they, Armour. The misconception of the thrust of the decree by the District Court is evident in its statement that "General Host is not a large meat packer extending its monopolistic grasp toward the rest of the food industry and through the use of its already established distributing facilities, superior financial resources and other means making a dominant position felt, resulting in a restraint of trade by squeezing out present or potential competitors. Rather, General Host, a wholly separate corporate entity, has acquired some shares of Armour stock and evinced an interest in acquiring additional shares." The evil is in an interference with the decree through the combination of Armour's meatpacking power with the food lines of General Hostthe precise type of evil at which the decree was aimed. And that evil is apparently present in Greyhound's acquisition.
Mr. Justice Cardozo speaking for the Court in the second Swift case said:
"Whether the defendants would resume [their predatory practices] if they were to deal in groceries again, we do not know. They would certainly have the temptation to resume it. Their low overhead and their gigantic size, even when they are viewed as separate units, would still put them in a position to starve out weaker rivals. Mere size, according to the holding of this court, is not an offense against the Sherman Act unless magnified to the point at which it amounts to a monopoly . . . , but *272 size carries with it an opportunity for abuse that is not to be ignored when the opportunity is proved to have been utilized in the past. The original decree at all events was framed upon that theory. It was framed upon the theory that even after the combination among the packers had been broken up and the monopoly dissolved, the individual units would be so huge that the capacity to engage in other forms of business as adjuncts to the sale of meats should be taken from them altogether. It did not say that the privilege to deal in groceries should be withdrawn for a limited time, or until the combination in respect of meats had been effectually broken up. It said that the privilege should be renounced forever, and this whether the units within the combination were acting collectively or singly. The combination was to be disintegrated, but relief was not to stop with that. To curb the aggressions of the huge units that would remain, there was to be a check upon their power, even though acting independently, to wage a war of extermination against dealers weaker than themselves.. . . Groceries and other enumerated articles they were not to sell at all, either by wholesale or by retail. Even the things that they were free to sell, meats and meat products, they were not to sell by retail." United States v. Swift & Co., 286 U.S. 106, 116-117.
Mr. Justice Cardozo added that with the addition of groceries to meats, "[t]he opportunity will be theirs to renew the war of extermination that they waged in years gone by." Id., at 118.
The same sentiment had previously been stated in the Senate by Senator (now MR. JUSTICE) BLACK in opposing the move of the meatpacking industry to relax the *273 decree. His fear was opening the doors to control of groceries and other food by the meatpackers:[1]
"If this court decree should be canceled and set aside by governmental consent, a giant food trust would not only be permitted but encouraged to rear its stupendous and ominous form over North, South, East, and West alike. Such governmental action will tacitly invite a monopoly of such size and power that with one stroke of a pen in some large financial center of the Nation this trust could lift the price of bread and meat from Maine to California."
Later he spoke of a financial prospectus based upon an expected modification of the decree:[2]
" `With the expected modification of the consent decree, the big meat packers will enter the retail field anew, with nation-wide chains of grocery and other food shops, which will overshadow all the existing enterprises of that type in the United States.'
.....
" `As the nucleus of such chains of meat and grocery stores as they now contemplate the packers may take over most of the huge retail food store chains already existing, such as the big grocery chains, which now operate meat departments in 20,000 to 30,000 such shops in various parts of the country.
" `It will pay every investor to scrutinize closely the increasing profit potentialities of the packing organizations.' "
The specter of meatpacking and food products merging is as ominous today as it was then. It should not *274 matter how the predatory scheme is effectuated, whether one acquires the other or vice versa. On the facts here tendered, a case has been made out for making General Host and Greyhound parties and having a hearing to determine whether they or either of them has interfered with the decree. The question is not whether, as a de novo matter, the combination of either with Armour constitutes a violation of the Act. The issue whether General Host or Greyhound has interfered with the decree is a narrower one. If they and Armour had designed this scheme to avoid the decree, interference would be rather obvious. Why does it matter that General Host or Greyhound, acting without the connivance of Armour, achieves the same result unilaterally? A federal court has inherent power to prevent obstruction of its authority by acts of "force, guile, or otherwise," whether or not the person charged was or was not a party defendant. See Mississippi Valley Barge Line Co. v. United States, 273 F. Supp. 1, aff'd sub nom. Osbourne v. Mississippi Valley Barge Line Co., 389 U.S. 579. For it is an historic equity principle that even a nonparty is bound "not to interfere with, and not to obstruct, the course of justice," or treat a court order as "unworthy of notice." See Seaward v. Paterson, [1897] 1 Ch. 545, 554. Cf. Rule 65 (d), Federal Rules of Civil Procedure.
I would not dismiss the case as moot. Rather, I would remand it to the District Court for a full hearing on the issue of interference.
| I dissent from dismissal of the case as moot. In an historic consent decree the giant meatpackers were separated in a complete and continuing way from the general food business, the District Court retaining in the customary way the power to grant additional *269 relief, at the foot of the decree. Some years later motions to vacate the decree were made, and a judgment overruling them was affirmed by this Court. Swift & Later Armour and other meatpacker defendants, claiming that conditions in the food business had changed, sought modifications of the decree to relieve them from the structural bars against engaging in various aspects of the general food and retail meat business. That effort was also unsuccessful. United Later, another attempt was made to obtain similar relief and it too failed. United aff'd, Armour is now the second largest meatpacker in the Nation. General Host is engaged in the food products business; it operates some 380 grocery stores, and some lodges, restaurants, and coffee shops. It is, in other words, engaged in lines of business from which Armour, as a party to the decree, would be barred, whether it did so directly or through stock ownership. Against the resistance of Armour, General Host, which held about 16 1/2% of Armour's outstanding stock, undertook to acquire at least 51% of it. The United States asked the District Court having jurisdiction over the meatpackers consent decree to make General Host a party under 5 of the Sherman Act, as amended, 15 U.S. C. 5. The refusal of the District Court to do so was, I think, error. After the District Court's ruling. General Host acquired 57% of Armour's stock. As a result, a species of the monopoly at which the consent decree was aimed was achieved. General Host, it appears, has now transferred, pursuant to authority of the Interstate Commerce Commission, its Armour stock to Greyhound Corporation. It is alleged that Greyhound, like General Host, is engaged in food business prohibited to Armour under the *270 decree. The United States contends that Greyhound's control of Armour is as inconsistent with the decree as General Host's control. Greyhound, the United States states, owns other food interests that Armour could not own by virtue of the decree. Neither General Host nor Greyhound could, of course, be held in contempt under the decree as it is written, for they were not parties. But they presumably knew of the decree and seemingly fashioned a procedure to circumvent it. The District Court had ample power under 5 of the Sherman Act, to restrain General Host from frustrating the decree, for 5 provides: "Whenever it shall appear to the court before which any proceeding under section 4 of this title may be pending, that the ends of justice require that other parties should be brought before the court, the court may cause them to be summoned, whether they reside in the district in which the court is held or not; and subpoenas to that end may be served in any district by the marshal thereof." General Host and Greyhound would have, of course, the opportunity to litigate the question whether their acts do interfere with the decree before any citation for contempt. Moreover, Rule 25 (c) of the Federal Rules of Civil Procedure provides: "In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (a) of this rule." Unless the District Court proceeds against General Host and Greyhound to supplement the decree, there *271 may be no remedy. Without the hearing I urge, they cannot be punished for contempt. Armour, though a party to the decree, was the victim of its violation, not a participant. Under the decree Armour could not acquire either General Host or Greyhound. Yet the combination of meat-packers with food products arguably is realized whether Armour acquired them, or they, Armour. The misconception of the thrust of the decree by the District Court is evident in its statement that "General Host is not a large meat packer extending its monopolistic grasp toward the rest of the food industry and through the use of its already established distributing facilities, superior financial resources and other means making a dominant position felt, resulting in a restraint of trade by squeezing out present or potential competitors. Rather, General Host, a wholly separate corporate entity, has acquired some shares of Armour stock and evinced an interest in acquiring additional shares." The evil is in an interference with the decree through the combination of Armour's meatpacking power with the food lines of General Hostthe precise type of evil at which the decree was aimed. And that evil is apparently present in Greyhound's acquisition. Mr. Justice Cardozo speaking for the Court in the second Swift case said: "Whether the defendants would resume [their predatory practices] if they were to deal in groceries again, we do not know. They would certainly have the temptation to resume it. Their low overhead and their gigantic size, even when they are viewed as separate units, would still put them in a position to starve out weaker rivals. Mere size, according to the holding of this court, is not an offense against the Sherman Act unless magnified to the point at which it amounts to a monopoly but *272 size carries with it an opportunity for abuse that is not to be ignored when the opportunity is proved to have been utilized in the past. The original decree at all events was framed upon that theory. It was framed upon the theory that even after the combination among the packers had been broken up and the monopoly dissolved, the individual units would be so huge that the capacity to engage in other forms of business as adjuncts to the sale of meats should be taken from them altogether. It did not say that the privilege to deal in groceries should be withdrawn for a limited time, or until the combination in respect of meats had been effectually broken up. It said that the privilege should be renounced forever, and this whether the units within the combination were acting collectively or singly. The combination was to be disintegrated, but relief was not to stop with that. To curb the aggressions of the huge units that would remain, there was to be a check upon their power, even though acting independently, to wage a war of extermination against dealers weaker than themselves. Groceries and other enumerated articles they were not to sell at all, either by wholesale or by retail. Even the things that they were free to sell, meats and meat products, they were not to sell by retail." United Mr. Justice Cardozo added that with the addition of groceries to meats, "[t]he opportunity will be theirs to renew the war of extermination that they waged in years gone by." The same sentiment had previously been stated in the Senate by Senator (now MR. JUSTICE) BLACK in opposing the move of the meatpacking industry to relax the *273 decree. His fear was opening the doors to control of groceries and other food by the meatpackers:[1] "If this court decree should be canceled and set aside by governmental consent, a giant food trust would not only be permitted but encouraged to rear its stupendous and ominous form over North, South, East, and West alike. Such governmental action will tacitly invite a monopoly of such size and power that with one stroke of a pen in some large financial center of the Nation this trust could lift the price of bread and meat from Maine to California." Later he spoke of a financial prospectus based upon an expected modification of the decree:[2] " `With the expected modification of the consent decree, the big meat packers will enter the retail field anew, with nation-wide chains of grocery and other food shops, which will overshadow all the existing enterprises of that type in the United States.' " `As the nucleus of such chains of meat and grocery stores as they now contemplate the packers may take over most of the huge retail food store chains already existing, such as the big grocery chains, which now operate meat departments in 20,000 to 30,000 such shops in various parts of the country. " `It will pay every investor to scrutinize closely the increasing profit potentialities of the packing organizations.' " The specter of meatpacking and food products merging is as ominous today as it was then. It should not *274 matter how the predatory scheme is effectuated, whether one acquires the other or vice versa. On the facts here tendered, a case has been made out for making General Host and Greyhound parties and having a hearing to determine whether they or either of them has interfered with the decree. The question is not whether, as a de novo matter, the combination of either with Armour constitutes a violation of the Act. The issue whether General Host or Greyhound has interfered with the decree is a narrower one. If they and Armour had designed this scheme to avoid the decree, interference would be rather obvious. Why does it matter that General Host or Greyhound, acting without the connivance of Armour, achieves the same result unilaterally? A federal court has inherent power to prevent obstruction of its authority by acts of "force, guile, or otherwise," whether or not the person charged was or was not a party defendant. See Mississippi Valley Barge Line aff'd sub nom. For it is an historic equity principle that even a nonparty is bound "not to interfere with, and not to obstruct, the course of justice," or treat a court order as "unworthy of notice." See Seaward v. Paterson, [1897] 1 Ch. 545, 554. Cf. Rule 65 (d), Federal Rules of Civil Procedure. I would not dismiss the case as moot. Rather, I would remand it to the District Court for a full hearing on the issue of interference. |
Justice Ginsburg | majority | false | Holly Farms Corp. v. NLRB | 1996-05-13T00:00:00 | null | https://www.courtlistener.com/opinion/118020/holly-farms-corp-v-nlrb/ | https://www.courtlistener.com/api/rest/v3/clusters/118020/ | 1,996 | 1995-046 | 2 | 5 | 4 | This controversy stems from a dispute concerning union representation at the Wilkesboro, North Carolina, headquarters facility of Holly Farms, a corporation engaged in the production, processing, and marketing of poultry products. The parties divide, as have federal courts, over the classification of certain workers, described as "live-haul" crews teams of chicken catchers, fork lift operators, and truck drivers, who collect for slaughter chickens raised as broilers by independent contract growers, and transport the birds to Holly Farms' processing plant. Holly Farms maintains that members of "live-haul" crews are "agricultural laborer[s]," a category of workers exempt from National Labor Relations Act coverage. The National Labor Relations Board disagreed and approved a Wilkesboro plant bargaining unit including those employees. Satisfied that the Board reasonably aligned the "live-haul" crews with the corporation's *395 processing operations, typing them covered "employee[s]," not exempt "agricultural laborer[s]," we affirm the Court of Appeals' judgment, which properly deferred to the Board's determination.
I
A
Petitioner Holly Farms Corporation, a wholly owned subsidiary of Tyson Foods, Inc., is a vertically integrated poultry producer headquartered in Wilkesboro, North Carolina.[1] Holly Farms' activities encompass numerous poultry operations, including hatcheries, a feed mill, an equipment maintenance center, and a processing plant.
"Broiler" chickens are birds destined for human food markets.[2] Holly Farms hatches broiler chicks at its own hatcheries, and immediately delivers the chicks to the farms of independent contractors. The contractors then raise the birds into full-grown broiler chickens. Holly Farms pays the contract growers for their services, but retains title to the broilers and supplies the food and medicine necessary to their growth.
When the broilers are seven weeks old, Holly Farms sends its live-haul crews to reclaim the birds and ferry them to the processing plant for slaughter. The live-haul crewswhich typically comprise nine chicken catchers, one fork lift operator, and one live-haul drivertravel in a flat-bed truck from Holly Farms' processing plant to the farms of the independent growers. At the farms, the chicken catchers enter the coops, manually capture the broilers, and load them into cages. The fork lift operator lifts the caged chickens onto the bed of the truck, and the live-haul driver returns the *396 truck, with the loaded cases and the crew, to Holly Farms' processing plant. There, the birds are slaughtered and prepared for shipment to retail stores.
B
In 1989, the Chauffeurs, Teamsters and Helpers, Local 391 (Union), filed a representation petition with the National Labor Relations Board (Board or NLRB), seeking an election in a proposed unit that included live-haul employees working out of Holly Farms' Wilkesboro processing plant. Over Holly Farms' objection, the Board approved the bargaining unit, ruling that the live-haul workers were "employee[s]" protected by the National Labor Relations Act (NLRA or Act), 49 Stat. 449, as amended, 29 U.S. C. § 151 et seq., rather than "agricultural laborer[s]" excluded from the Act's coverage by § 2(3) of the NLRA, 29 U.S. C. § 152(3). See Holly Farms Corp., 311 N. L. R. B. 273, 273, n. 4, 284 (1993).[3] After further proceedings not relevant here, the Board ordered the corporation to bargain with the Union as the representative of the unit. Id., at 285-286.
The United States Court of Appeals for the Fourth Circuit enforced the Board's order. The court held that the Board's classification of the live-haul workers as "employee[s]," rather than "agricultural laborer[s]," rested "on a reasonable interpretation of the Act." 48 F.3d 1360, 1372 (1995). The Board's reading, the court added, was consistent with the NLRB's prior decisions, see Imco Poultry, Div. of Int'l Multifoods Corp., 202 N. L. R. B. 259, 260-261 (1973), adhered to in Seaboard Farms of Kentucky, Inc., 311 N. L. R. B. No. 159 (1993), and Draper Valley Farms, Inc., 307 N. L. R. B. 1440 (1992), and with the Eighth Circuit's case law, see NLRB v. Hudson Farms, Inc., 681 F.2d 1105, *397 1106 (per curiam), cert. denied, 459 U.S. 1069 (1982), and Valmac Industries, Inc. v. NLRB, 599 F.2d 246, 249 (1979). 48 F.3d, at 1371-1372.[4]
Other Federal Courts of Appeals, in conflict with the Fourth and Eighth Circuits, have held that live-haul workers employed by vertically integrated poultry producers are engaged in "agriculture." See, e. g., Coleman v. Sanderson Farms, Inc., 629 F.2d 1077, 1079 (CA5 1980); NLRB v. Ryckebosch, Inc., 471 F.2d 20, 21 (CA9 1972). We granted certiorari to resolve the division of authority. 516 U.S. 963 (1995).
II
The NLRA's protections extend only to workers who qualify as "employee[s]" under § 2(3) of the Act. 29 U.S. C. § 152(3). The term "employee," NLRA § 2(3) states, "[does] not include any individual employed as an agricultural laborer." Ibid. No definition of "agricultural laborer" appears in the NLRA. But annually since 1946, Congress has instructed, in riders to Appropriations Acts for the Board: "[A]gricultural laborer," for NLRA § 2(3) purposes, shall derive its meaning from the definition of "agriculture" supplied by § 3(f) of the Fair Labor Standards Act of 1938 (FLSA). See Bayside Enterprises, Inc. v. NLRB, 429 U.S. 298, 300, and n. 6 (1977).[5]
Section 3(f) of the FLSA provides:
"`Agriculture' includes farming in all its branches and among other things includes the cultivation and tillage *398 of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 1141j(g) of title 12), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market." 29 U.S. C. § 203(f).
This definition, we have explained, "includes farming in both a primary and a secondary sense." Bayside, 429 U. S., at 300. "Primary farming" includes the occupations listed first in § 3(f): "the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities ... [and] the raising of livestock, bees, fur-bearing animals, or poultry." 29 U.S. C. § 203(f). "Secondary farming" has a broader meaning, encompassing, as stated in the second part of § 3(f): "any practices ... performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market." Ibid.; see Bayside, 429 U. S., at 300, n. 7; Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 763 (1949) (secondary farming embraces "any practices, whether or not themselves farming practices, which are performed either by a farmer or on a farm, incidently to or in conjunction with `such' farming operations").
If a statute's meaning is plain, the Board and reviewing courts "must give effect to the unambiguously expressed intent of Congress." Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). When the legislative prescription is not free from ambiguity, the administrator must choose between conflicting reasonable *399 interpretations. Courts, in turn, must respect the judgment of the agency empowered to apply the law "to varying fact patterns," Bayside, 429 U. S., at 304, even if the issue "with nearly equal reason [might] be resolved one way rather than another," id., at 302 (citing Farmers Reservoir, 337 U. S., at 770 (Frankfurter, J., concurring)). We note, furthermore, that administrators and reviewing courts must take care to assure that exemptions from NLRA coverage are not so expansively interpreted as to deny protection to workers the Act was designed to reach. See 48 F.3d, at 1370 (citing NLRB v. Cal-Maine Farms, Inc., 998 F.2d 1336, 1339 (CA5 1993));[6] cf. Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960) (exemptions from the FLSA "are to be narrowly construed against the employers seeking to assert them"); Mitchell v. Kentucky Finance Co., 359 U.S. 290, 295 (1959) ("It is well settled that exemptions from the Fair Labor Standards Act are to be narrowly construed.").
III
Primary farming includes the raising of poultry. See Bayside, 429 U. S., at 300-301. All agree that the independent *400 growers, who raise Holly Farms' broiler chickens on their own farms, are engaged in primary agriculture. But we confront no contention that Holly Farms' live-haul employees are themselves engaged in raising poultry.[7] Thus, the only question we resolve is whether the chicken catchers, forklift operators, and truckdrivers are engaged in secondary agriculture that is, practices "performed by a farmer or on a farm as an incident to or in conjunction with such farming operations." 29 U.S. C. § 203(f).
We take up, initially, the "performed by a farmer" strand of FLSA § 3(f). We do not labor over the point, for our decision in Bayside securely leads us to the conclusion that the live-haul activities are not performed "by a farmer." In Bayside, we considered the application of § 3(f)'s "by a farmer" specification to integrated agricultural companies that contract out farming work. We upheld the Board's rejection of the contention that "all of the activity on a contract farm should be regarded as agricultural activity of an integrated farmer" such as Holly Farms. 429 U.S., at 302. When an integrated poultry producer "contracts with independent growers for the care and feeding of [its] chicks, [its] status as a farmer engaged in raising poultry ends with respect to those chicks." Id., at 302, n. 9 (citing Imco Poultry, 202 N. L. R. B., at 260). Accordingly, when the live-haul employees arrive on the independent farms to collect broilers for carriage to slaughter and processing, Holly Farms does not resume its status as "farmer" with respect to those birds, the status Holly Farms had weeks before, when the birds *401 were hatched in its hatcheries. This conclusion, we note, entirely disposes of the contention that the truckdrivers are employed in secondary agriculture, for Holly Farms acknowledges that these crew members do not work "on a farm." Tr. of Oral Arg. 5.
We turn, now, to the nub of the case for the chicken catchers and forklift operators: the "on a farm" strand of FLSA § 3(f).
A
Holly Farms argues that under the plain language of the statute, the catching and loading of broilers qualifies as work performed "on a farm as an incident to" the raising of poultry. The corporation emphasizes that § 3(f) of the FLSA enumerates "preparation for market" and "delivery to storage or to market" among activities that count as "agriculture." The live-haul employees' work, Holly Farms concludes, thus falls within the domain of the FLSA exemption and, accordingly, enjoys no NLRA protection.
We find Holly Farms' position to be a plausible, but not an inevitable, construction of § 3(f). Hence, we turn to the Board's position, examining only its reasonableness as an interpretation of the governing legislation.
B
While agreeing that the chicken catchers and forklift operators work "on a farm," the Board contends that their catch and cage work is not incidental to farming operations. Rather, the work is tied to Holly Farms' slaughtering and processing operations, activities that do not constitute "farming" under the statute. We conclude, as we next explain, that the Board's position "is based on a reasonable interpretation of the statute, is consistent with the Board's prior holdings, and is supported by the Secretary of Labor's construction of § 3(f)." Bayside, 429 U. S., at 303 (footnotes omitted).
*402 1
The Board underscores the statutory words "such farming operations." It does not suffice that the alleged secondary agriculture consists of "preparation for market," or "delivery to storage or to market," the Board maintains; to qualify for the statutory exemption, the Board urges, the work must be incidental to, or conjoined with, primary farming operations.[8] As just explained, see supra, at 400-401, at the growing stage in the short life of a broiler, Holly Farms is not involved in primary farming, but the contract growers are. The essential question, then, is whether the live-haul employees' activities are inevitably "incident to or in conjunction with" the farming operations of the independent growers.[9] The Board answers this question in the negative. *403 See Imco Poultry, 202 N. L. R. B., at 261 (Because chicken catching crews "have no business relationship with the independent farmers, we conclude that the employees' activities were not incidental to the independent farmers' poultry raising operations.").
We find the Board's answer reasonable. Once the broilers have grown on the farm for seven weeks, the growers' contractual obligation to raise the birds ends, and the work of the live-haul crew begins. The record reflects minimal overlap between the work of the live-haul crew and the independent growers' raising activities. The growers do not assist the live-haul crews in catching or loading the chickens; their only responsibilities are to move certain equipment from the chicken coops prior to the crews' arrival, and to be present when the crews are on the farms. App. to Brief for Federal Respondent 3a. Nor do the live-haul employees play any role in the growers' performance of their contractual undertakings.
The record, furthermore, supports the Board's conclusion that the live-haul crews' activities were conjoined with Holly Farms' processing operations, rather than with farming.[10]*404 The chicken catchers, forklift operators, and truckdrivers work as a unit. They all "work out of the processing plant" in Wilkesboro, App. 22a, located three miles from the hatcheries, App. to Pet. for Cert. A-381, n. 119. Crew members begin and end each shift by punching a timeclock at the processing plant, id., at A-831 to A-832, and are functionally integrated with other processing-plant employees, App. 22a. See also App. to Pet. for Cert. A-396 (correlation between Holly Farms' slaughter rate and work available for live-haul crews); App. 29a (live production manager for Holly Farms' Wilkesboro facility described catching and delivery of grown broilers as the first step in the producer's processing operations). The Board's determination, in sum, has the requisite "warrant in the record." Bayside, 429 U. S., at 304, n. 14 (citing NLRB v. Hearst Publications, Inc., 322 U.S. 111, 131 (1944)).
We think it sensible, too, that the Board homed in on the status of the live-haul crews' employer. The employer's status respecting the particular activity at issue accounts for the Board's determination that Holly Farms' "egg haulers" (who transport eggs from the laying houses to the hatcheries), and "pullet catchers" (who collect the breeding-destined birds on the farms of independent growers) rank as "agricultural laborer[s]." As the record shows, the pullet catchers and egg haulers work in Holly Farms' hatchery operations, while the live-haul employeeswho deal only with broilers work out of the processing plant. "There is no interchange between these classifications. Broiler haulers do not haul pullets and pullet haulers do not haul broilers." App. 20a-21a. Accordingly, the Board reasonably aligned the pullet catchers and egg haulers with Holly Farms' poultry-raising operation, and the live-haul employees with the corporation's slaughtering and processing activities.
*405 2
The Board's decision regarding Holly Farms' live-haul crews adheres to longstanding NLRB precedent. For more than 23 years, the NLRB has maintained that vertically integrated poultry producers' employees who "handl[e] and transpor[t] chicks on the farms of independent growers only after [the poultry producers'] farming operations have ended ... cannot be performing practices incident to, or in conjunction with, [their employer's] farming operations." Imco Poultry, 202 N. L. R. B., at 260. Rather, such employees, the Board has repeatedly ruled, perform work "incident to, or in conjunction with, a separate and distinct business activity of [their employer], i. e., shipping and marketing." Id., at 261. See also Draper Valley Farms, Inc., 307 N. L. R. B., at 1440 ("We think it follows plainly from Imco that the Employer's chicken catchers are not, when working on the farms of independent growers who have concluded their `raising' activities, exempt as agricultural laborers."); Seaboard Farms of Kentucky, Inc., 311 N. L. R. B. No. 159 (1993) (same).[11]
3
In construing the agricultural laborer exemption, the Board endeavors to "follow, whenever possible, the interpretations of Section 3(f) adopted by the Department of Labor, the agency which is charged with the responsibility for and has the experience of administering the Fair Labor Standards *406 Act." Cornell University, 254 N. L. R. B. 110 (1981); see also Mario Saikon, Inc., 278 N. L. R. B. 1289, 1290 (1986); Wegman's Food Market, Inc., 236 N. L. R. B. 1062 (1978). The Board has not departed from that endeavor here.[12] The Department of Labor's regulations do not address the precise situation of the live-haul workers before us, nor are the regulations free from ambiguity. We agree with the Board, however, that they are consistent with "employee" characterization of the crews that catch grown chickens for carriage to Holly Farms' processing plant.
On contract arrangements for raising poultry, the Department of Labor has issued an interpretative regulation, which we noted in Bayside, 429 U. S., at 303-304, n. 13, as follows:
"Feed dealers and processors sometimes enter into contractual arrangements with farmers under which the latter agree to raise to marketable size baby chicks supplied by the former who also undertake to furnish all the required feed and possibly additional items. Typically, the feed dealer or processor retains title to the chickens until they are sold. Under such an arrangement, the activities of the farmers and their employees in raising the poultry are clearly within section 3(f). The activities of the feed dealer or processor, on the other hand, are not `raising of poultry,' and employees engaged in them cannot be considered agricultural employees on that ground. Employees of the feed dealer or processor who perform work on a farm as an incident to or in conjunction with the raising of poultry on the farm are employed in `secondary' agriculture (see *407 §§ 780.137 et seq. [explaining that work must be performed in connection with the farmer-employer's own farming to qualify as `secondary' agriculture by a farmer] and Johnston v. Cotton Producers Assn., 244 F.2d 553)." 29 CFR § 780.126 (1995).
This regulation suggests that live-haul crews surely are not engaged in a primary farming operation. The crews could rank as workers engaged in "secondary" agriculture if they "perform[ed] work on a farm as an incident to or in conjunction with the raising of poultry on the farm." Ibid. As we developed earlier, however, see supra, at 402-405, in the Board's judgment, the crews do not fit that bill. The livehaul crew members perform their work, as the Board sees it, not "as an incident to" poultry raising by independent growers, but "incident to" and "in conjunction with" the slaughter and processing of chickens at Holly Farms' Wilkesboro plant. In the Board's words, the crews are tied to "a separate and distinct business activity," the business of processing poultry for retail sale, see Imco Poultry, 202 N. L. R. B., at 261, not to the anterior work of agriculture.[13]
Other Department of Labor regulations are in harmony with the Board's conclusion that the live-haul crews do not engage in secondary farming because their work, though "on *408 a farm," is not performed "as an incident to or in conjunction with" the independent growers' poultry-raising operations. Thus, 29 CFR § 780.129 (1995) reiterates that the work "must be performed `as an incident to or in conjunction with' the farming operations," and § 780.143 adds:
"The fact that a practice performed on a farm is not performed by or for the farmer is a strong indication that it is not performed in connection with the farming operations there conducted." Ibid.
The same regulation, § 780.143, further states that, in determining whether a practice is performed "for" a farmer, it is "highly significant" whether the practice involves property to which the farmer has title or for which the farmer otherwise has responsibility. Ibid. Holly Farms retains title to the chicks and, once the live-haul crew undertakes its catch and remove operation, the independent grower "divest[s] himself of further responsibility with respect to the product." Ibid.[14]
The Department of Labor candidly observed that "[t]he line between practices that are and those that are not performed `as an incident to or in conjunction with' such farming operations is not susceptible of precise definition." § 780.144. This acknowledgment accords with our recognition that the meaning of FLSA § 3(f) is not so "plain" as to bear only one permissible construction in the context at hand.
IV
In sum, we find persuasive the Board's conclusion that the collection of broilers for slaughter was an activity serving *409 Holly Farms' processing operations, and not Holly Farms' own or the independent growers' farming operations. Again, we stress that "the reviewing court's function is limited." Bayside, 429 U. S., at 304, n. 14 (citing Hearst Publications, 322 U. S., at 131). For the Board to prevail, it need not show that its construction is the best way to read the statute; rather, courts must respect the Board's judgment so long as its reading is a reasonable one. See Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891 (1984) ("we will uphold any interpretation [of the term `employee' in NLRA § 2(3)] that is reasonably defensible"). "[R]egardless of how we might have resolved the question as an initial matter," Bayside, 429 U. S., at 304, the Board's decision here reflects a reasonable interpretation of the law and, therefore, merits our approbation. The judgment of the Court of Appeals is accordingly
Affirmed.
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE THOMAS join, concurring in the judgment in part and dissenting in part.
Today the Court concludes that three categories of workers fall outside the definition of "agricultural laborer" supplied by § 3(f) the Fair Labor Standards Act of 1938 (FLSA) and § 2(3) of the National Labor Relations Act (NLRA): (1) Holly Farms' chicken catchers, who labor on a farm manually rounding up, catching, and caging live chickens, (2) forklift operators, who then load the caged chickens onto the bed of a flatbed truck, and (3) live-haul drivers, who drive the loaded trucks to Holly Farms' processing plants, where the chickens are slaughtered and prepared for market. I concur in the Court's judgment with respect to the live-haul drivers, since their work is neither performed "by a farmer" nor "on a farm." But the Court's conclusion that Holly Farms' chicken catchers and forklift operators do not perform agricultural work runs contrary to common sense and finds no *410 support in the text of the relevant statute. Because the definition supplied by Congress makes clear that the chicken catchers and forklift operators are agricultural workers exempt from the reach of the NLRA, I respectfully dissent.
The Court devotes the bulk of its opinion to an analysis of the reasonableness of the National Labor Relations Board's (Board) interpretation of the statute, but gives remarkably short shrift to the statute itself. The Court dismisses Holly Farms' claim that the plain language of the statute covers the chicken catchers and forklift operators with the conclusory remark that Holly Farms' reading of the statute is "a plausible, but not an inevitable, construction of § 3(f)." Ante, at 401. In my view, however, the language of the statute is unambiguous.
As we said in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984): "First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id., at 842-843. None of our precedents sanction blind adherence to the Board's position when it is directly contrary to the plain language of the relevant statute. See, e. g., NLRB v. Brown, 380 U.S. 278, 291 (1965) ("Reviewing courts are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute"); American Ship Building Co. v. NLRB, 380 U.S. 300, 318 (1965) ("The deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia ..."). Section 3(f) of the FLSA defines agriculture as "farming in all its branches," including "the raising of ... poultry," as well as "any practices ... performed by a farmer or on a farm as an incident to or in conjunction with such farming operations." 29 U.S. C. § 203(f) (emphasis added). The coverage *411 intended by Congress under both the FLSA and the NLRA is best determined by consulting the language of the statute at issue. Because the relevant portions of § 3(f) are perfectly plain and "directly [speak] to the precise question at issue," Chevron, supra, at 842, I would hold that the chicken catchers and forklift operators are agricultural laborers and that the Board's contrary conclusion does not deserve deference.
The Court's determination rests largely upon a misreading of the statute in two respects. First, the Court tethers the "or on a farm" clause of § 3(f) to the employment relationship (or lack thereof) between the chicken catchers and forklift operators and the independent farmer who is charged with raising the chickens. And second, the Court decides that the secondary farming activities performed by the chicken catchers and forklift operators must not only be "incident" to the independent farmer's primary farming activities, but must be "mainly" or "most tightly" tied thereto. Neither conclusion finds support in the language of § 3(f).
The Court's first error stems from its adoption of the Board's focus on the lack of a direct employment relationship between the live-haul workers and the independent growers. But the "or on a farm" clause nowhere mentions the nature of the employment relationship. Instead, it is plainly concerned only with the nature of the work performed by the worker. The Board's interpretation must be rejected, as it would read the "or on a farm" clause out of the statute entirely.
The Court relies on the legislative history underlying the "or on a farm" clause, which we described in Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 763 (1949). That history reveals that the clause was intended to include within the statutory definition work performed on a farm that was "necessary to" the farming operations but not performed by the farmer himself. Id., at 767. One example figures prominently in the legislative history: a wheat *412 thresher who travels from farm to farm performing wheat threshing chores for small farmers on a contract basis. The Court reasons that Holly Farms' employees are unlike the fictional wheat thresher, however, in that they are employed by Holly Farms, rather than by the independent growers themselves. See ante, at 402, n. 8 ("If the chicken catching crews were employed by the independent growers, rather than by Holly Farms' processing operation, those crews would more closely resemble the wheat threshers contemplated by the framers of § 3(f)").
The Court and the Board emphasize formal contractual arrangements to the virtual exclusion of practical realities. The fact that Holly Farms supplies the services of the chicken catchers and forklift operators seems entirely beside the point; the work performed by these employees is precisely the same whether they are hired by Holly Farms or by the independent growers. And the notion that Congress intended the status of the chicken catchers and forklift operators to turn on such a readily manipulable criterion strains credibility. If the live-haul crew's status depends only upon who "hires" them to perform the work, Holly Farms can simply charge the independent growers with raising and catching, caging, and cooping the chickens, and require the independent growers to hire Holly Farms' own live-haul workers to perform those tasks.
The Court's quotation from Imco Poultry, Div. of Int'l Multifoods Corp., 202 N. L. R. B. 259 (1973), reveals precisely where the Board and the Court have gone astray: The Board takes the position that live-haul workers "`cannot be performing practices incident to, or in conjunction with, [their employer's] farming operations.'" Ante, at 405 (quoting Imco Poultry, supra, at 260). But the statute does not require that work be performed "incident to or in conjunction with" one's employer's farming operations, but only incident to or in conjunction with "such" farming operations the antecedent for which term is plainly the first clause of *413 § 3(f), to wit, "farming in all its branches," including "the raising of ... poultry." If the sine qua non of status as an agricultural laborer is employment by the farmer or the independent grower, the "or on a farm" clause is redundant, because chicken catching crews that are agents or employees of the farmers themselves fall within the "by a farmer" clause. Ordinarily, "terms connected by a disjunctive [are] given separate meanings, unless the context dictates otherwise." Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979). The "or on a farm" clause has independent significance only if the work encompassed by that clause is performed by someone other than a farmer or the farmer's own agents or employees. Chevron deference is not owed to a Board construction of the statute that effectively redacts one of the statute's operative clauses.
The Court also cites with approval a Department of Labor (DOL) interpretive regulation that addresses contractual arrangements for raising poultry such as those between Holly Farms and the independent growers. The DOL regulation declares that "[e]mployees of [a] feed dealer or processor who perform work on a farm as an incident to or in conjunction with the raising of poultry on the farm are employed in `secondary' agriculture." 29 CFR § 780.126 (1995). The Court thus accepts as reasonable a DOL regulation that plainly suggests that even workers employed by a poultry processor such as Holly Farms can be engaged in secondary agriculture and also accepts as reasonable a Board interpretation of § 3(f) that, in essence, dictates that employees of a processor cannot be employed in secondary agriculture. See ante, at 404 ("We think it sensible ... that the Board homed in on the status of the live-haul crews' employer") (emphasis in original). The Court cannot have it both ways, and it need not, since the "or on a farm" clause is plainly indifferent to the nature of the employment relationship.
The Court's second misstep likewise derives from its deference to a Board construction that lacks foundation in the *414 statute. Section 3(f) exempts work performed "as an incident to or in conjunction with" primary farming operations. The statutory language manifestly does not disqualify the work from agricultural status if it also "serve[s]," ante, at 408, or is "tied to," ante, at 407, some other enterprise. Even accepting the Court's conclusion that the work of the chicken catchers and forklift operators is "incident to" Holly Farms' processing operations, those workers fall within the § 3(f) definition so long as their work is also "incident to or in conjunction with" the farming operations performed by the independent growers.
As Holly Farms points out, the Board's contrary position hinges on the premise that a given activity can only be incident to one thingeither processing or farming, but not both. But the Board's position cannot be squared with the statute itself, which places no conditions upon the statutory prerequisite that work be "incident to or in conjunction with" covered farming operations. Indeed, the wheat thresher of the legislative history was clearly performing work "incident to" the business operations of the wheat threshing enterprise as well as "incident to" the farmer's farming operations. The statutory requirement is simple, and the imposition of a more stringent prerequisite must be rejected as contrary to the statute itself.
When the chicken catchers and forklift operators arrive at the farm of an independent grower to catch, cage, and load the live chickens in preparation for their delivery to market, they are certainly doing work that is directly related to the farming operations that occurred on that very farm during the preceding weeks: the raising of poultry. As Holly Farms points out, unless the chickens are caught, caged, and removed from the farm, the independent grower's farming operations will have been for naught. The independent grower must see to it that the chickens grow to the designated age and are caught, removed, and replaced with new chicks for the next growing cycle. See Brief for Petitioners *415 23. And the fact that § 3(f) lists "preparation for market" as one of the activities that customarily is "incident to or in conjunction with" covered farming operations buttresses petitioners' argument.
The Court's response relies on the facts that the independent grower's contractual duties have ended, that the workers punch a timeclock in Holly Farms' processing plant rather than in Farmer Brown's barn, and that Holly Farms rather than the independent grower signs their paychecks at the end of the day. But these facts are irrelevant to the statutory definition. Section 3(f) asks only whether the chicken catchers and forklift operators perform work "on a farm" (which all parties concede they do) and whether that work is "incident to or in conjunction with such farming operations" that is, whether the activities of the chicken catching crews are "incident to" the covered farming operations that take place on the farms of the independent growers, the raising of poultry for slaughter. To that question, there can be only one answer.
Because the Court today defers to an NLRB interpretation that runs directly contrary to the statutory language, I respectfully dissent from the Court's conclusion with respect to the chicken catchers and forklift operators.
| This controversy stems from a dispute concerning union representation at the Wilkesboro, North Carolina, headquarters facility of Holly Farms, a corporation engaged in the production, processing, and marketing of poultry products The parties divide, as have federal courts, over the classification of certain workers, described as "live-haul" crews teams of chicken catchers, fork lift operators, and truck drivers, who collect for slaughter chickens raised as broilers by independent contract growers, and transport the birds to Holly Farms' processing plant Holly Farms maintains that members of "live-haul" crews are "agricultural laborer[s]," a category of workers exempt from National Labor Relations Act coverage The National Labor Relations Board disagreed and approved a Wilkesboro plant bargaining unit including those employees Satisfied that the Board reasonably aligned the "live-haul" crews with the corporation's *395 processing operations, typing them covered "employee[s]," not exempt "agricultural laborer[s]," we affirm the Court of Appeals' judgment, which properly deferred to the Board's determination I A Petitioner Holly Farms Corporation, a wholly owned subsidiary of Tyson Foods, Inc, is a vertically integrated poultry producer headquartered in Wilkesboro, North Carolina[1] Holly Farms' activities encompass numerous poultry operations, including hatcheries, a feed mill, an equipment maintenance center, and a processing plant "Broiler" chickens are birds destined for human food markets[2] Holly Farms hatches broiler chicks at its own hatcheries, and immediately delivers the chicks to the farms of independent contractors The contractors then raise the birds into full-grown broiler chickens Holly Farms pays the contract growers for their services, but retains title to the broilers and supplies the food and medicine necessary to their growth When the broilers are seven weeks old, Holly Farms sends its live-haul crews to reclaim the birds and ferry them to the processing plant for slaughter The live-haul crewswhich typically comprise nine chicken catchers, one fork lift operator, and one live-haul drivertravel in a flat-bed truck from Holly Farms' processing plant to the farms of the independent growers At the farms, the chicken catchers enter the coops, manually capture the broilers, and load them into cages The fork lift operator lifts the caged chickens onto the bed of the truck, and the live-haul driver returns the *396 truck, with the loaded cases and the crew, to Holly Farms' processing plant There, the birds are slaughtered and prepared for shipment to retail stores B In 1989, the Chauffeurs, Teamsters and Helpers, Local 391 (Union), filed a representation petition with the National Labor Relations Board (Board or NLRB), seeking an election in a proposed unit that included live-haul employees working out of Holly Farms' Wilkesboro processing plant Over Holly Farms' objection, the Board approved the bargaining unit, ruling that the live-haul workers were "employee[s]" protected by the National Labor Relations Act (NLRA or Act), as amended, 29 US C 151 et seq, rather than "agricultural laborer[s]" excluded from the Act's coverage by 2(3) of the NLRA, 29 US C 152(3) See Holly Farms Corp, 311 N L R B 273, 273, n 4, 284 [3] After further proceedings not relevant here, the Board ordered the corporation to bargain with the Union as the representative of the unit The United States Court of Appeals for the Fourth Circuit enforced the Board's order The court held that the Board's classification of the live-haul workers as "employee[s]," rather than "agricultural laborer[s]," rested "on a reasonable interpretation of the Act" The Board's reading, the court added, was consistent with the NLRB's prior decisions, see Imco Div of Int'l Multifoods Corp, 202 N L R B 259, 260-261 (1973), adhered to in Seaboard Farms of Kentucky, Inc, 311 N L R B No 159 and Draper Valley Farms, Inc, 307 N L R B 1440 (1992), and with the Eighth Circuit's case law, see *397 1106 (per curiam), cert denied, and Valmac Industries, -[4] Other Federal Courts of Appeals, in conflict with the Fourth and Eighth Circuits, have held that live-haul workers employed by vertically integrated poultry producers are engaged in "agriculture" See, e g, Coleman v Sanderson Farms, Inc, 629 F2d 1077, ; NLRB v Ryckebosch, Inc, 471 F2d 20, We granted certiorari to resolve the division of authority 516 US 963 II The NLRA's protections extend only to workers who qualify as "employee[s]" under 2(3) of the Act 29 US C 152(3) The term "employee," NLRA 2(3) states, "[does] not include any individual employed as an agricultural laborer" Ibid No definition of "agricultural laborer" appears in the NLRA But annually since 1946, Congress has instructed, in riders to Appropriations Acts for the Board: "[A]gricultural laborer," for NLRA 2(3) purposes, shall derive its meaning from the definition of "agriculture" supplied by 3(f) of the Fair Labor Standards Act of 1938 (FLSA) See Enterprises, 429 US 298, and n 6 [5] Section 3(f) of the FLSA provides: "`Agriculture' includes farming in all its branches and among other things includes the cultivation and tillage *398 of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 1141j(g) of title 12), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market" 29 US C 203(f) This definition, we have explained, "includes farming in both a primary and a secondary sense" 429 U S, at "Primary farming" includes the occupations listed first in 3(f): "the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities [and] the raising of livestock, bees, fur-bearing animals, or poultry" 29 US C 203(f) "Secondary farming" has a broader meaning, encompassing, as stated in the second part of 3(f): "any practices performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market" Ibid; see 429 U S, at n 7; Farmers & Irrigation Co v McComb, 337 US 755, If a statute's meaning is plain, the Board and reviewing courts "must give effect to the unambiguously expressed intent of Congress" U S A Inc v Natural Resources Defense Council, Inc, 467 US 837, When the legislative prescription is not free from ambiguity, the administrator must choose between conflicting reasonable *399 interpretations Courts, in turn, must respect the judgment of the agency empowered to apply the law "to varying fact patterns," 429 U S, at 304, even if the issue "with nearly equal reason [might] be resolved one way rather than another," id, (citing Farmers 337 U S, at 770 (Frankfurter, J, concurring)) We note, furthermore, that administrators and reviewing courts must take care to assure that exemptions from NLRA coverage are not so expansively interpreted as to deny protection to workers the Act was designed to reach See 48 F3d, at 1370 );[6] cf Arnold v Ben Kanowsky, Inc, 361 US 388, ; Mitchell v Kentucky Finance Co, 359 US 290, ("It is well settled that exemptions from the Fair Labor Standards Act are to be narrowly construed") III Primary farming includes the raising of poultry See 429 U S, at -301 All agree that the independent *400 growers, who raise Holly Farms' broiler chickens on their own farms, are engaged in primary agriculture But we confront no contention that Holly Farms' live-haul employees are themselves engaged in raising poultry[7] Thus, the only question we resolve is whether the chicken catchers, forklift operators, and truckdrivers are engaged in secondary agriculture that is, practices "performed by a farmer or on a farm as an incident to or in conjunction with such farming operations" 29 US C 203(f) We take up, initially, the "performed by a farmer" strand of FLSA 3(f) We do not labor over the point, for our decision in securely leads us to the conclusion that the live-haul activities are not performed "by a farmer" In we considered the application of 3(f)'s "by a farmer" specification to integrated agricultural companies that contract out farming work We upheld the Board's rejection of the contention that "all of the activity on a contract farm should be regarded as agricultural activity of an integrated farmer" such as Holly Farms 429 US, When an integrated poultry producer "contracts with independent growers for the care and feeding of [its] chicks, [its] status as a farmer engaged in raising poultry ends with respect to those chicks" n 9 (citing Imco 202 N L R B, ) Accordingly, when the live-haul employees arrive on the independent farms to collect broilers for carriage to slaughter and processing, Holly Farms does not resume its status as "farmer" with respect to those birds, the status Holly Farms had weeks before, when the birds *401 were hatched in its hatcheries This conclusion, we note, entirely disposes of the contention that the truckdrivers are employed in secondary agriculture, for Holly Farms acknowledges that these crew members do not work "on a farm" Tr of Oral Arg 5 We turn, now, to the nub of the case for the chicken catchers and forklift operators: the "on a farm" strand of FLSA 3(f) A Holly Farms argues that under the plain language of the statute, the catching and loading of broilers qualifies as work performed "on a farm as an incident to" the raising of poultry The corporation emphasizes that 3(f) of the FLSA enumerates "preparation for market" and "delivery to storage or to market" among activities that count as "agriculture" The live-haul employees' work, Holly Farms concludes, thus falls within the domain of the FLSA exemption and, accordingly, enjoys no NLRA protection We find Holly Farms' position to be a plausible, but not an inevitable, construction of 3(f) Hence, we turn to the Board's position, examining only its reasonableness as an interpretation of the governing legislation B While agreeing that the chicken catchers and forklift operators work "on a farm," the Board contends that their catch and cage work is not incidental to farming operations Rather, the work is tied to Holly Farms' slaughtering and processing operations, activities that do not constitute "farming" under the statute We conclude, as we next explain, that the Board's position "is based on a reasonable interpretation of the statute, is consistent with the Board's prior holdings, and is supported by the Secretary of Labor's construction of 3(f)" 429 U S, at 303 *402 1 The Board underscores the statutory words "such farming operations" It does not suffice that the alleged secondary agriculture consists of "preparation for market," or "delivery to storage or to market," the Board maintains; to qualify for the statutory exemption, the Board urges, the work must be incidental to, or conjoined with, primary farming operations[8] As just explained, see at the growing stage in the short life of a broiler, Holly Farms is not involved in primary farming, but the contract growers are The essential question, then, is whether the live-haul employees' activities are inevitably "incident to or in conjunction with" the farming operations of the independent growers[9] The Board answers this question in the negative *403 See Imco 202 N L R B, (Because chicken catching crews "have no business relationship with the independent farmers, we conclude that the employees' activities were not incidental to the independent farmers' poultry raising operations") We find the Board's answer reasonable Once the broilers have grown on the farm for seven weeks, the growers' contractual obligation to raise the birds ends, and the work of the live-haul crew begins The record reflects minimal overlap between the work of the live-haul crew and the independent growers' raising activities The growers do not assist the live-haul crews in catching or loading the chickens; their only responsibilities are to move certain equipment from the chicken coops prior to the crews' arrival, and to be present when the crews are on the farms App to Brief for Federal Respondent 3a Nor do the live-haul employees play any role in the growers' performance of their contractual undertakings The record, furthermore, supports the Board's conclusion that the live-haul crews' activities were conjoined with Holly Farms' processing operations, rather than with farming[10]*404 The chicken catchers, forklift operators, and truckdrivers work as a unit They all "work out of the processing plant" in Wilkesboro, App 22a, located three miles from the hatcheries, App to Pet for Cert A-381, n 119 Crew members begin and end each shift by punching a timeclock at the processing plant, id, at A-831 to A-832, and are functionally integrated with other processing-plant employees, App 22a See also App to Pet for Cert A-396 (correlation between Holly Farms' slaughter rate and work available for live-haul crews); App 29a (live production manager for Holly Farms' Wilkesboro facility described catching and delivery of grown broilers as the first step in the producer's processing operations) The Board's determination, in sum, has the requisite "warrant in the record" 429 U S, at 304, n 14 ) We think it sensible, too, that the Board homed in on the status of the live-haul crews' employer The employer's status respecting the particular activity at issue accounts for the Board's determination that Holly Farms' "egg haulers" (who transport eggs from the laying houses to the hatcheries), and "pullet catchers" (who collect the breeding-destined birds on the farms of independent growers) rank as "agricultural laborer[s]" As the record shows, the pullet catchers and egg haulers work in Holly Farms' hatchery operations, while the live-haul employeeswho deal only with broilers work out of the processing plant "There is no interchange between these classifications Broiler haulers do not haul pullets and pullet haulers do not haul broilers" App 20a-a Accordingly, the Board reasonably aligned the pullet catchers and egg haulers with Holly Farms' poultry-raising operation, and the live-haul employees with the corporation's slaughtering and processing activities *405 2 The Board's decision regarding Holly Farms' live-haul crews adheres to longstanding NLRB precedent For more than 23 years, the NLRB has maintained that vertically integrated poultry producers' employees who "handl[e] and transpor[t] chicks on the farms of independent growers only after [the poultry producers'] farming operations have ended cannot be performing practices incident to, or in conjunction with, [their employer's] farming operations" Imco 202 N L R B, Rather, such employees, the Board has repeatedly ruled, perform work "incident to, or in conjunction with, a separate and distinct business activity of [their employer], i e, shipping and marketing" See also Draper Valley Farms, Inc, 307 N L R B, at 1440 ("We think it follows plainly from Imco that the Employer's chicken catchers are not, when working on the farms of independent growers who have concluded their `raising' activities, exempt as agricultural laborers"); Seaboard Farms of Kentucky, Inc, 311 N L R B No 159 (same)[11] 3 In construing the agricultural laborer exemption, the Board endeavors to "follow, whenever possible, the interpretations of Section 3(f) adopted by the Department of Labor, the agency which is charged with the responsibility for and has the experience of administering the Fair Labor Standards *406 Act" Cornell University, 254 N L R B 110 (1981); see also Mario Saikon, Inc, 278 N L R B 1289, 1290 (1986); Wegman's Food Market, Inc, 236 N L R B 1062 (1978) The Board has not departed from that endeavor here[12] The Department of Labor's regulations do not address the precise situation of the live-haul workers before us, nor are the regulations free from ambiguity We agree with the Board, however, that they are consistent with "employee" characterization of the crews that catch grown chickens for carriage to Holly Farms' processing plant On contract arrangements for raising poultry, the Department of Labor has issued an interpretative regulation, which we noted in 429 U S, at 303-304, n 13, as follows: "Feed dealers and processors sometimes enter into contractual arrangements with farmers under which the latter agree to raise to marketable size baby chicks supplied by the former who also undertake to furnish all the required feed and possibly additional items Typically, the feed dealer or processor retains title to the chickens until they are sold Under such an arrangement, the activities of the farmers and their employees in raising the poultry are clearly within section 3(f) The activities of the feed dealer or processor, on the other hand, are not `raising of poultry,' and employees engaged in them cannot be considered agricultural employees on that ground Employees of the feed dealer or processor who perform work on a farm as an incident to or in conjunction with the raising of poultry on the farm are employed in `secondary' agriculture (see *407 780137 et seq [explaining that work must be performed in connection with the farmer-employer's own farming to qualify as `secondary' agriculture by a farmer] and Johnston v Cotton Producers Assn, 244 F2d 553)" 29 CFR 780126 This regulation suggests that live-haul crews surely are not engaged in a primary farming operation The crews could rank as workers engaged in "secondary" agriculture if they "perform[ed] work on a farm as an incident to or in conjunction with the raising of poultry on the farm" Ibid As we developed earlier, however, see in the Board's judgment, the crews do not fit that bill The livehaul crew members perform their work, as the Board sees it, not "as an incident to" poultry raising by independent growers, but "incident to" and "in conjunction with" the slaughter and processing of chickens at Holly Farms' Wilkesboro plant In the Board's words, the crews are tied to "a separate and distinct business activity," the business of processing poultry for retail sale, see Imco 202 N L R B, not to the anterior work of agriculture[13] Other Department of Labor regulations are in harmony with the Board's conclusion that the live-haul crews do not engage in secondary farming because their work, though "on *408 a farm," is not performed "as an incident to or in conjunction with" the independent growers' poultry-raising operations Thus, 29 CFR 780129 reiterates that the work "must be performed `as an incident to or in conjunction with' the farming operations," and 780143 adds: "The fact that a practice performed on a farm is not performed by or for the farmer is a strong indication that it is not performed in connection with the farming operations there conducted" Ibid The same regulation, 780143, further states that, in determining whether a practice is performed "for" a farmer, it is "highly significant" whether the practice involves property to which the farmer has title or for which the farmer otherwise has responsibility Ibid Holly Farms retains title to the chicks and, once the live-haul crew undertakes its catch and remove operation, the independent grower "divest[s] himself of further responsibility with respect to the product" Ibid[14] The Department of Labor candidly observed that "[t]he line between practices that are and those that are not performed `as an incident to or in conjunction with' such farming operations is not susceptible of precise definition" 780144 This acknowledgment accords with our recognition that the meaning of FLSA 3(f) is not so "plain" as to bear only one permissible construction in the context at hand IV In sum, we find persuasive the Board's conclusion that the collection of broilers for slaughter was an activity serving *409 Holly Farms' processing operations, and not Holly Farms' own or the independent growers' farming operations Again, we stress that "the reviewing court's function is limited" 429 U S, at 304, n 14 (citing Hearst 322 U S, at ) For the Board to prevail, it need not show that its construction is the best way to read the statute; rather, courts must respect the Board's judgment so long as its reading is a reasonable one See Sure-Tan, 467 US 883, ("we will uphold any interpretation [of the term `employee' in NLRA 2(3)] that is reasonably defensible") "[R]egardless of how we might have resolved the question as an initial matter," 429 U S, at 304, the Board's decision here reflects a reasonable interpretation of the law and, therefore, merits our approbation The judgment of the Court of Appeals is accordingly Affirmed JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE THOMAS join, concurring in the judgment in part and dissenting in part Today the Court concludes that three categories of workers fall outside the definition of "agricultural laborer" supplied by 3(f) the Fair Labor Standards Act of 1938 (FLSA) and 2(3) of the National Labor Relations Act (NLRA): (1) Holly Farms' chicken catchers, who labor on a farm manually rounding up, catching, and caging live chickens, (2) forklift operators, who then load the caged chickens onto the bed of a flatbed truck, and (3) live-haul drivers, who drive the loaded trucks to Holly Farms' processing plants, where the chickens are slaughtered and prepared for market I concur in the Court's judgment with respect to the live-haul drivers, since their work is neither performed "by a farmer" nor "on a farm" But the Court's conclusion that Holly Farms' chicken catchers and forklift operators do not perform agricultural work runs contrary to common sense and finds no *410 support in the text of the relevant statute Because the definition supplied by Congress makes clear that the chicken catchers and forklift operators are agricultural workers exempt from the reach of the NLRA, I respectfully dissent The Court devotes the bulk of its opinion to an analysis of the reasonableness of the National Labor Relations Board's (Board) interpretation of the statute, but gives remarkably short shrift to the statute itself The Court dismisses Holly Farms' claim that the plain language of the statute covers the chicken catchers and forklift operators with the conclusory remark that Holly Farms' reading of the statute is "a plausible, but not an inevitable, construction of 3(f)" Ante, at 401 In my view, however, the language of the statute is unambiguous As we said in U S A Inc v Natural Resources Defense Council, Inc, 467 US 837 : "First, always, is the question whether Congress has directly spoken to the precise question at issue If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress" - None of our precedents sanction blind adherence to the Board's position when it is directly contrary to the plain language of the relevant statute See, e g, NLRB v Brown, 380 US 278, ; American Ship Building Co v NLRB, 380 US ("The deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia ") Section 3(f) of the FLSA defines agriculture as "farming in all its branches," including "the raising of poultry," as well as "any practices performed by a farmer or on a farm as an incident to or in conjunction with such farming operations" 29 US C 203(f) (emphasis added) The coverage *411 intended by Congress under both the FLSA and the NLRA is best determined by consulting the language of the statute at issue Because the relevant portions of 3(f) are perfectly plain and "directly [speak] to the precise question at issue," I would hold that the chicken catchers and forklift operators are agricultural laborers and that the Board's contrary conclusion does not deserve deference The Court's determination rests largely upon a misreading of the statute in two respects First, the Court tethers the "or on a farm" clause of 3(f) to the employment relationship (or lack thereof) between the chicken catchers and forklift operators and the independent farmer who is charged with raising the chickens And second, the Court decides that the secondary farming activities performed by the chicken catchers and forklift operators must not only be "incident" to the independent farmer's primary farming activities, but must be "mainly" or "most tightly" tied thereto Neither conclusion finds support in the language of 3(f) The Court's first error stems from its adoption of the Board's focus on the lack of a direct employment relationship between the live-haul workers and the independent growers But the "or on a farm" clause nowhere mentions the nature of the employment relationship Instead, it is plainly concerned only with the nature of the work performed by the worker The Board's interpretation must be rejected, as it would read the "or on a farm" clause out of the statute entirely The Court relies on the legislative history underlying the "or on a farm" clause, which we described in Farmers & Irrigation Co v McComb, 337 US 755, That history reveals that the clause was intended to include within the statutory definition work performed on a farm that was "necessary to" the farming operations but not performed by the farmer himself One example figures prominently in the legislative history: a wheat *412 thresher who travels from farm to farm performing wheat threshing chores for small farmers on a contract basis The Court reasons that Holly Farms' employees are unlike the fictional wheat thresher, however, in that they are employed by Holly Farms, rather than by the independent growers themselves See ante, at 402, n 8 ("If the chicken catching crews were employed by the independent growers, rather than by Holly Farms' processing operation, those crews would more closely resemble the wheat threshers contemplated by the framers of 3(f)") The Court and the Board emphasize formal contractual arrangements to the virtual exclusion of practical realities The fact that Holly Farms supplies the services of the chicken catchers and forklift operators seems entirely beside the point; the work performed by these employees is precisely the same whether they are hired by Holly Farms or by the independent growers And the notion that Congress intended the status of the chicken catchers and forklift operators to turn on such a readily manipulable criterion strains credibility If the live-haul crew's status depends only upon who "hires" them to perform the work, Holly Farms can simply charge the independent growers with raising and catching, caging, and cooping the chickens, and require the independent growers to hire Holly Farms' own live-haul workers to perform those tasks The Court's quotation from Imco Div of Int'l Multifoods Corp, 202 N L R B 259 (1973), reveals precisely where the Board and the Court have gone astray: The Board takes the position that live-haul workers "`cannot be performing practices incident to, or in conjunction with, [their employer's] farming operations'" Ante, at 405 (quoting Imco ) But the statute does not require that work be performed "incident to or in conjunction with" one's employer's farming operations, but only incident to or in conjunction with "such" farming operations the antecedent for which term is plainly the first clause of *413 3(f), to wit, "farming in all its branches," including "the raising of poultry" If the sine qua non of status as an agricultural laborer is employment by the farmer or the independent grower, the "or on a farm" clause is redundant, because chicken catching crews that are agents or employees of the farmers themselves fall within the "by a farmer" clause Ordinarily, "terms connected by a disjunctive [are] given separate meanings, unless the context dictates otherwise" Reiter v Sonotone Corp, 442 US 330, The "or on a farm" clause has independent significance only if the work encompassed by that clause is performed by someone other than a farmer or the farmer's own agents or employees deference is not owed to a Board construction of the statute that effectively redacts one of the statute's operative clauses The Court also cites with approval a Department of Labor (DOL) interpretive regulation that addresses contractual arrangements for raising poultry such as those between Holly Farms and the independent growers The DOL regulation declares that "[e]mployees of [a] feed dealer or processor who perform work on a farm as an incident to or in conjunction with the raising of poultry on the farm are employed in `secondary' agriculture" 29 CFR 780126 The Court thus accepts as reasonable a DOL regulation that plainly suggests that even workers employed by a poultry processor such as Holly Farms can be engaged in secondary agriculture and also accepts as reasonable a Board interpretation of 3(f) that, in essence, dictates that employees of a processor cannot be employed in secondary agriculture See ante, at 404 ("We think it sensible that the Board homed in on the status of the live-haul crews' employer") (emphasis in original) The Court cannot have it both ways, and it need not, since the "or on a farm" clause is plainly indifferent to the nature of the employment relationship The Court's second misstep likewise derives from its deference to a Board construction that lacks foundation in the *414 statute Section 3(f) exempts work performed "as an incident to or in conjunction with" primary farming operations The statutory language manifestly does not disqualify the work from agricultural status if it also "serve[s]," ante, at 408, or is "tied to," ante, at 407, some other enterprise Even accepting the Court's conclusion that the work of the chicken catchers and forklift operators is "incident to" Holly Farms' processing operations, those workers fall within the 3(f) definition so long as their work is also "incident to or in conjunction with" the farming operations performed by the independent growers As Holly Farms points out, the Board's contrary position hinges on the premise that a given activity can only be incident to one thingeither processing or farming, but not both But the Board's position cannot be squared with the statute itself, which places no conditions upon the statutory prerequisite that work be "incident to or in conjunction with" covered farming operations Indeed, the wheat thresher of the legislative history was clearly performing work "incident to" the business operations of the wheat threshing enterprise as well as "incident to" the farmer's farming operations The statutory requirement is simple, and the imposition of a more stringent prerequisite must be rejected as contrary to the statute itself When the chicken catchers and forklift operators arrive at the farm of an independent grower to catch, cage, and load the live chickens in preparation for their delivery to market, they are certainly doing work that is directly related to the farming operations that occurred on that very farm during the preceding weeks: the raising of poultry As Holly Farms points out, unless the chickens are caught, caged, and removed from the farm, the independent grower's farming operations will have been for naught The independent grower must see to it that the chickens grow to the designated age and are caught, removed, and replaced with new chicks for the next growing cycle See Brief for Petitioners *415 23 And the fact that 3(f) lists "preparation for market" as one of the activities that customarily is "incident to or in conjunction with" covered farming operations buttresses petitioners' argument The Court's response relies on the facts that the independent grower's contractual duties have ended, that the workers punch a timeclock in Holly Farms' processing plant rather than in Farmer Brown's barn, and that Holly Farms rather than the independent grower signs their paychecks at the end of the day But these facts are irrelevant to the statutory definition Section 3(f) asks only whether the chicken catchers and forklift operators perform work "on a farm" (which all parties concede they do) and whether that work is "incident to or in conjunction with such farming operations" that is, whether the activities of the chicken catching crews are "incident to" the covered farming operations that take place on the farms of the independent growers, the raising of poultry for slaughter To that question, there can be only one answer Because the Court today defers to an NLRB interpretation that runs directly contrary to the statutory language, I respectfully dissent from the Court's conclusion with respect to the chicken catchers and forklift operators |
Justice Scalia | majority | false | United States v. Grubbs | 2006-03-21T00:00:00 | null | https://www.courtlistener.com/opinion/145670/united-states-v-grubbs/ | https://www.courtlistener.com/api/rest/v3/clusters/145670/ | 2,006 | 2005-041 | 1 | 8 | 0 | Federal law enforcement officers obtained a search warrant for respondent's house on the basis of an affidavit explaining that the warrant would be executed only after a controlled delivery of contraband to that location. We address two challenges to the constitutionality of this anticipatory warrant.
I
Respondent Jeffrey Grubbs purchased a videotape containing child pornography from a Web site operated by an undercover postal inspector. Officers from the Postal Inspection Service arranged a controlled delivery of a package containing the videotape to Grubbs' residence. A postal inspector submitted a search warrant application to a Magistrate Judge for the Eastern District of California, accompanied by an affidavit describing the proposed operation in detail. The affidavit stated:
"Execution of this search warrant will not occur unless and until the parcel has been received by a person(s) and has been physically taken into the residence . . . . At that time, and not before, this search warrant will be executed by me and other United States Postal inspectors, with appropriate assistance from other law enforcement officers in accordance with this warrant's command." App. to Pet. for Cert. 72a.
In addition to describing this triggering condition, the affidavit referred to two attachments, which described Grubbs' residence and the items officers would seize. These attachments, but not the body of the affidavit, were incorporated into the requested warrant. The affidavit concluded:
"Based upon the foregoing facts, I respectfully submit there exists probable cause to believe that the items set forth in Attachment B to this affidavit and the search warrant, will be found [at Grubbs' residence], which residence is further described at Attachment A." Ibid.
*93 The Magistrate Judge issued the warrant as requested. Two days later, an undercover postal inspector delivered the package. Grubbs' wife signed for it and took the unopened package inside. The inspectors detained Grubbs as he left his home a few minutes later, then entered the house and commenced the search. Roughly 30 minutes into the search, Grubbs was provided with a copy of the warrant, which included both attachments but not the supporting affidavit that explained when the warrant would be executed. Grubbs consented to interrogation by the postal inspectors and admitted ordering the videotape. He was placed under arrest, and various items were seized, including the videotape.
A grand jury for the Eastern District of California indicted Grubbs on one count of receiving a visual depiction of a minor engaged in sexually explicit conduct. See 18 U.S. C. § 2252(a)(2). He moved to suppress the evidence seized during the search of his residence, arguing as relevant here that the warrant was invalid because it failed to list the triggering condition. After an evidentiary hearing, the District Court denied the motion. Grubbs pleaded guilty, but reserved his right to appeal the denial of his motion to suppress.
The Court of Appeals for the Ninth Circuit reversed. 377 F.3d 1072, amended, 389 F.3d 1306 (2004). Relying on Circuit precedent, it held that "the particularity requirement of the Fourth Amendment applies with full force to the conditions precedent to an anticipatory search warrant." 377 F.3d, at 1077-1078 (citing United States v. Hotal, 143 F.3d 1223, 1226 (CA9 1998)). An anticipatory warrant defective for that reason may be "cur[ed]" if the conditions precedent are set forth in an affidavit that is incorporated in the warrant and "presented to the person whose property is being searched." 377 F.3d, at 1079. Because the postal inspectors "failed to present the affidavitthe only document in which the triggering conditions were listed"to Grubbs or *94 his wife, the "warrant was . . . inoperative, and the search was illegal." Ibid. We granted certiorari. 545 U.S. 1164 (2005).
II
Before turning to the Ninth Circuit's conclusion that the warrant at issue here ran afoul of the Fourth Amendment's particularity requirement, we address the antecedent question whether anticipatory search warrants are categorically unconstitutional.[1] An anticipatory warrant is "a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place." 2 W. LaFave, Search and Seizure § 3.7(c), p. 398 (4th ed. 2004). Most anticipatory warrants subject their execution to some condition precedent other than the mere passage of timea so-called "triggering condition." The affidavit at issue here, for instance, explained that "[e]xecution of th[e] search warrant will not occur unless and until the parcel [containing child pornography] has been received by a person(s) and has been physically taken into the residence." App. to Pet. for Cert. 72a. If the government were to execute an anticipatory warrant before the triggering condition occurred, there would be no reason to believe the item described in the warrant could be found at the searched location; by definition, the triggering condition which establishes probable cause has not yet been satisfied when the warrant is issued. Grubbs argues that for this reason anticipatory warrants contravene the Fourth *95 Amendment's provision that "no Warrants shall issue, but upon probable cause."
We reject this view, as has every Court of Appeals to confront the issue, see, e. g., United States v. Loy, 191 F.3d 360, 364 (CA3 1999) (collecting cases). Probable cause exists when "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). Because the probable-cause requirement looks to whether evidence will be found when the search is conducted, all warrants are, in a sense, "anticipatory." In the typical case where the police seek permission to search a house for an item they believe is already located there, the magistrate's determination that there is probable cause for the search amounts to a prediction that the item will still be there when the warrant is executed. See People v. Glen, 30 N.Y. 2d 252, 258, 282 N.E.2d 614, 617 (1972) ("[P]resent possession is only probative of the likelihood of future possession").[2] The anticipatory nature of warrants is even clearer in the context of electronic surveillance. See, e. g., Katz v. United States, 389 U.S. 347 (1967). When police request approval to tap a telephone line, they do so based on the probability that, during the course of the surveillance, the subject will use the phone to engage in crime-related conversations. The relevant federal provision requires a judge authorizing "interception of wire, oral, or electronic communications" to determine that "there is probable *96 cause for belief that particular communications concerning [one of various listed offenses] will be obtained through such interception." 18 U.S. C. § 2518(3)(b) (emphasis added); see also United States v. Ricciardelli, 998 F.2d 8, 11, n. 3 (CA1 1993) ("[T]he magistrate issues the warrant on the basis of a substantial probability that crime-related conversations will ensue"). Thus, when an anticipatory warrant is issued, "the fact that the contraband is not presently located at the place described in the warrant is immaterial, so long as there is probable cause to believe that it will be there when the search warrant is executed." United States v. Garcia, 882 F.2d 699, 702 (CA2 1989) (quoting United States v. Lowe, 575 F.2d 1193, 1194 (CA6 1978); internal quotation marks omitted).
Anticipatory warrants are, therefore, no different in principle from ordinary warrants. They require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed. It should be noted, however, that where the anticipatory warrant places a condition (other than the mere passage of time) upon its execution, the first of these determinations goes not merely to what will probably be found if the condition is met. (If that were the extent of the probability determination, an anticipatory warrant could be issued for every house in the country, authorizing search and seizure if contraband should be deliveredthough for any single location there is no likelihood that contraband will be delivered.) Rather, the probability determination for a conditioned anticipatory warrant looks also to the likelihood that the condition will occur, and thus that a proper object of seizure will be on the described premises. In other words, for a conditioned anticipatory warrant to comply with the Fourth Amendment's requirement of probable cause, two prerequisites of probability must be satisfied. It must be true not only that if the triggering condition occurs "there is a fair probability that contraband or evidence of a crime will be found in a particular place," *97 Gates, supra, at 238, but also that there is probable cause to believe the triggering condition will occur. The supporting affidavit must provide the magistrate with sufficient information to evaluate both aspects of the probable-cause determination. See Garcia, supra, at 703.
In this case, the occurrence of the triggering condition successful delivery of the videotape to Grubbs' residence would plainly establish probable cause for the search. In addition, the affidavit established probable cause to believe the triggering condition would be satisfied. Although it is possible that Grubbs could have refused delivery of the videotape he had ordered, that was unlikely. The Magistrate therefore "had a `substantial basis for . . . conclud[ing]' that probable cause existed." Gates, supra, at 238-239 (quoting Jones v. United States, 362 U.S. 257, 271 (1960)).
III
The Ninth Circuit invalidated the anticipatory search warrant at issue here because the warrant failed to specify the triggering condition. The Fourth Amendment's particularity requirement, it held, "applies with full force to the conditions precedent to an anticipatory search warrant." 377 F.3d, at 1077-1078.
The Fourth Amendment, however, does not set forth some general "particularity requirement." It specifies only two matters that must be "particularly describ[ed]" in the warrant: "the place to be searched" and "the persons or things to be seized." We have previously rejected efforts to expand the scope of this provision to embrace unenumerated matters. In Dalia v. United States, 441 U.S. 238 (1979), we considered an order authorizing the interception of oral communications by means of a "bug" installed by the police in the petitioner's office. The petitioner argued that, if a covert entry is necessary to install such a listening device, the authorizing order must "explicitly set forth its approval of such entries before the fact." Id., at 255. This argument fell before the "`precise and clear'" words of the Fourth *98 Amendment: "Nothing in the language of the Constitution or in this Court's decisions interpreting that language suggests that, in addition to the [requirements set forth in the text], search warrants also must include a specification of the precise manner in which they are to be executed." Ibid. (quoting Stanford v. Texas, 379 U.S. 476, 481 (1965)); 441 U.S., at 257. The language of the Fourth Amendment is likewise decisive here; its particularity requirement does not include the conditions precedent to execution of the warrant.
Respondent, drawing upon the Ninth Circuit's analysis below, relies primarily on two related policy rationales. First, he argues, setting forth the triggering condition in the warrant itself is necessary "to delineate the limits of the executing officer's power." Brief for Respondent 20. This is an application, respondent asserts, of the following principle: "[I]f there is a precondition to the valid exercise of executive power, that precondition must be particularly identified on the face of the warrant." Id., at 23. That principle is not to be found in the Constitution. The Fourth Amendment does not require that the warrant set forth the magistrate's basis for finding probable cause, even though probable cause is the quintessential "precondition to the valid exercise of executive power." Much less does it require description of a triggering condition.
Second, respondent argues that listing the triggering condition in the warrant is necessary to "`assur[e] the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.'" Id., at 19 (quoting United States v. Chadwick, 433 U.S. 1, 9 (1977)). The Ninth Circuit went even further, asserting that if the property owner were not informed of the triggering condition, he "would `stand [no] real chance of policing the officers' conduct.'" 377 F.3d, at 1079 (quoting Ramirez v. Butte-Silver Bow County, 298 F.3d 1022, 1027 (CA9 2002)). This argument assumes that the executing officer must present the property owner with *99 a copy of the warrant before conducting his search. See 377 F.3d, at 1079, n. 9. In fact, however, neither the Fourth Amendment nor Federal Rule of Criminal Procedure 41 imposes such a requirement. See Groh v. Ramirez, 540 U.S. 551, 562, n. 5 (2004). "The absence of a constitutional requirement that the warrant be exhibited at the outset of the search, or indeed until the search has ended, is . . . evidence that the requirement of particular description does not protect an interest in monitoring searches." United States v. Stefonek, 179 F.3d 1030, 1034 (CA7 1999) (citations omitted). The Constitution protects property owners not by giving them license to engage the police in a debate over the basis for the warrant, but by interposing, ex ante, the "deliberate, impartial judgment of a judicial officer . . . between the citizen and the police," Wong Sun v. United States, 371 U.S. 471, 481-482 (1963), and by providing, ex post, a right to suppress evidence improperly obtained and a cause of action for damages.
* * *
Because the Fourth Amendment does not require that the triggering condition for an anticipatory search warrant be set forth in the warrant itself, the Court of Appeals erred in invalidating the warrant at issue here. 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 ALITO took no part in the consideration or decision of this case.
JUSTICE SOUTER, with whom Justice STEVENS and JUSTICE GINSBURG join, concurring in part and concurring in the judgment. | Federal law enforcement officers obtained a search warrant for respondent's house on the basis of an affidavit explaining that the warrant would be executed only after a controlled delivery of contraband to that location. We address two challenges to the constitutionality of this anticipatory warrant. I Respondent Jeffrey Grubbs purchased a videotape containing child pornography from a Web site operated by an undercover postal inspector. Officers from the Postal Inspection Service arranged a controlled delivery of a package containing the videotape to Grubbs' residence. A postal inspector submitted a search warrant application to a Magistrate Judge for the Eastern District of California, accompanied by an affidavit describing the proposed operation in detail. The affidavit stated: "Execution of this search warrant will not occur unless and until the parcel has been received by a person(s) and has been physically taken into the residence At that time, and not before, this search warrant will be executed by me and other United States Postal inspectors, with appropriate assistance from other law enforcement officers in accordance with this warrant's command." App. to Pet. for Cert. 72a. In addition to describing this triggering condition, the affidavit referred to two attachments, which described Grubbs' residence and the items officers would seize. These attachments, but not the body of the affidavit, were incorporated into the requested warrant. The affidavit concluded: "Based upon the foregoing facts, I respectfully submit there exists probable cause to believe that the items set forth in Attachment B to this affidavit and the search warrant, will be found [at Grubbs' residence], which residence is further described at Attachment A." *3 The Magistrate Judge issued the warrant as requested. Two days later, an undercover postal inspector delivered the package. Grubbs' wife signed for it and took the unopened package inside. The inspectors detained Grubbs as he left his home a few minutes later, then entered the house and commenced the search. Roughly 30 minutes into the search, Grubbs was provided with a copy of the warrant, which included both attachments but not the supporting affidavit that explained when the warrant would be executed. Grubbs consented to interrogation by the postal inspectors and admitted ordering the videotape. He was placed under arrest, and various items were seized, including the videotape. A grand jury for the Eastern District of California indicted Grubbs on one count of receiving a visual depiction of a minor engaged in sexually explicit conduct. See 18 U.S. C. 2252(a)(2). He moved to suppress the evidence seized during the search of his residence, arguing as relevant here that the warrant was invalid because it failed to list the triggering condition. After an evidentiary hearing, the District Court denied the motion. Grubbs pleaded guilty, but reserved his right to appeal the denial of his motion to suppress. The Court of Appeals for the Ninth Circuit reversed. Relying on Circuit precedent, it held that "the particularity requirement of the Fourth Amendment applies with full force to the conditions precedent to an anticipatory search warrant." -1078 ). An anticipatory warrant defective for that reason may be "cur[ed]" if the conditions precedent are set forth in an affidavit that is incorporated in the warrant and "presented to the person whose property is being searched." Because the postal inspectors "failed to present the affidavitthe only document in which the triggering conditions were listed"to Grubbs or *4 his wife, the "warrant was inoperative, and the search was illegal." We granted certiorari. II Before turning to the Ninth Circuit's conclusion that the warrant at issue here ran afoul of the Fourth Amendment's particularity requirement, we address the antecedent question whether anticipatory search warrants are categorically unconstitutional.[1] An anticipatory warrant is "a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place." 2 W. LaFave, Search and Seizure 3.7(c), p. 38 Most anticipatory warrants subject their execution to some condition precedent other than the mere passage of timea so-called "triggering condition." The affidavit at issue here, for instance, explained that "[e]xecution of th[e] search warrant will not occur unless and until the parcel [containing child pornography] has been received by a person(s) and has been physically taken into the residence." App. to Pet. for Cert. 72a. If the government were to execute an anticipatory warrant before the triggering condition occurred, there would be no reason to believe the item described in the warrant could be found at the searched location; by definition, the triggering condition which establishes probable cause has not yet been satisfied when the warrant is issued. Grubbs argues that for this reason anticipatory warrants contravene the Fourth *5 Amendment's provision that "no Warrants shall issue, but upon probable cause." We reject this view, as has every Court of Appeals to confront the issue, see, e. g., United Probable cause exists when "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Because the probable-cause requirement looks to whether evidence will be found when the search is conducted, all warrants are, in a sense, "anticipatory." In the typical case where the police seek permission to search a house for an item they believe is already located there, the magistrate's determination that there is probable cause for the search amounts to a prediction that the item will still be there when the warrant is executed. See[2] The anticipatory nature of warrants is even clearer in the context of electronic surveillance. See, e. g., When police request approval to tap a telephone line, they do so based on the probability that, during the course of the surveillance, the subject will use the phone to engage in crime-related conversations. The relevant federal provision requires a judge authorizing "interception of wire, oral, or electronic communications" to determine that "there is probable *6 cause for belief that particular communications concerning [one of various listed offenses] will be obtained through such interception." 18 U.S. C. 2518(3)(b) (emphasis added); see also United Thus, when an anticipatory warrant is issued, "the fact that the contraband is not presently located at the place described in the warrant is immaterial, so long as there is probable cause to believe that it will be there when the search warrant is executed." United Anticipatory warrants are, therefore, no different in principle from ordinary warrants. They require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed. It should be noted, however, that where the anticipatory warrant places a condition (other than the mere passage of time) upon its execution, the first of these determinations goes not merely to what will probably be found if the condition is met. (If that were the extent of the probability determination, an anticipatory warrant could be issued for every house in the country, authorizing search and seizure if contraband should be deliveredthough for any single location there is no likelihood that contraband will be delivered.) Rather, the probability determination for a conditioned anticipatory warrant looks also to the likelihood that the condition will occur, and thus that a proper object of seizure will be on the described premises. In other words, for a conditioned anticipatory warrant to comply with the Fourth Amendment's requirement of probable cause, two prerequisites of probability must be satisfied. It must be true not only that if the triggering condition occurs "there is a fair probability that contraband or evidence of a crime will be found in a particular place," *7 at but also that there is probable cause to believe the triggering condition will occur. The supporting affidavit must provide the magistrate with sufficient information to evaluate both aspects of the probable-cause determination. See In this case, the occurrence of the triggering condition successful delivery of the videotape to Grubbs' residence would plainly establish probable cause for the search. In addition, the affidavit established probable cause to believe the triggering condition would be satisfied. Although it is possible that Grubbs could have refused delivery of the videotape he had ordered, that was unlikely. The Magistrate therefore "had a `substantial basis for conclud[ing]' that probable cause existed." at -23 ). III The Ninth Circuit invalidated the anticipatory search warrant at issue here because the warrant failed to specify the triggering condition. The Fourth Amendment's particularity requirement, it held, "applies with full force to the conditions precedent to an anticipatory search warrant." -1078. The Fourth Amendment, however, does not set forth some general "particularity requirement." It specifies only two matters that must be "particularly describ[ed]" in the warrant: "the place to be searched" and "the persons or things to be seized." We have previously rejected efforts to expand the scope of this provision to embrace unenumerated matters. In 441 U.S. we considered an order authorizing the interception of oral communications by means of a "bug" installed by the police in the petitioner's office. The petitioner argued that, if a covert entry is necessary to install such a listening device, the authorizing order must "explicitly set forth its approval of such entries before the fact." This argument fell before the "`precise and clear'" words of the Fourth *8 Amendment: "Nothing in the language of the Constitution or in this Court's decisions interpreting that language suggests that, in addition to the [requirements set forth in the text], search warrants also must include a specification of the precise manner in which they are to be executed." ); The language of the Fourth Amendment is likewise decisive here; its particularity requirement does not include the conditions precedent to execution of the warrant. Respondent, drawing upon the Ninth Circuit's analysis below, relies primarily on two related policy rationales. First, he argues, setting forth the triggering condition in the warrant itself is necessary "to delineate the limits of the executing officer's power." Brief for Respondent 20. This is an application, respondent asserts, of the following principle: "[I]f there is a precondition to the valid exercise of executive power, that precondition must be particularly identified on the face of the warrant." That principle is not to be found in the Constitution. The Fourth Amendment does not require that the warrant set forth the magistrate's basis for finding probable cause, even though probable cause is the quintessential "precondition to the valid exercise of executive power." Much less does it require description of a triggering condition. Second, respondent argues that listing the triggering condition in the warrant is necessary to "`assur[e] the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.'" ). The Ninth Circuit went even further, asserting that if the property owner were not informed of the triggering condition, he "would `stand [no] real chance of policing the officers' conduct.'" ). This argument assumes that the executing officer must present the property owner with * a copy of the warrant before conducting his search. See n. In fact, however, neither the Fourth Amendment nor Federal Rule of Criminal Procedure 41 imposes such a requirement. See "The absence of a constitutional requirement that the warrant be exhibited at the outset of the search, or indeed until the search has ended, is evidence that the requirement of particular description does not protect an interest in monitoring searches." United 17 F.3d 1030, The Constitution protects property owners not by giving them license to engage the police in a debate over the basis for the warrant, but by interposing, ex ante, the "deliberate, impartial judgment of a judicial officer between the citizen and the police," Wong -482 (163), and by providing, ex post, a right to suppress evidence improperly obtained and a cause of action for damages. * * * Because the Fourth Amendment does not require that the triggering condition for an anticipatory search warrant be set forth in the warrant itself, the Court of Appeals erred in invalidating the warrant at issue here. 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 ALITO took no part in the consideration or decision of this case. JUSTICE SOUTER, with whom Justice STEVENS and JUSTICE GINSBURG join, concurring in part and concurring in the judgment. |
Justice Brennan | second_dissenting | false | Warth v. Seldin | 1975-06-25T00:00:00 | null | https://www.courtlistener.com/opinion/109301/warth-v-seldin/ | https://www.courtlistener.com/api/rest/v3/clusters/109301/ | 1,975 | 1974-140 | 1 | 5 | 4 | In this case, a wide range of plaintiffs, alleging various kinds of injuries, claimed to have been affected by the *520 Penfield zoning ordinance, on its face and as applied, and by other practices of the defendant officials of Penfield. Alleging that as a result of these laws and practices low- and moderate-income and minority people have been excluded from Penfield, and that this exclusion is unconstitutional, plaintiffs sought injunctive, declaratory, and monetary relief. The Court today, in an opinion that purports to be a "standing" opinion but that actually, I believe, has overtones of outmoded notions of pleading and of justiciability, refuses to find that any of the variously situated plaintiffs can clear numerous hurdles, some constructed here for the first time, necessary to establish "standing." While the Court gives lip service to the principle, oft repeated in recent years,[1] that "standing in no way depends on the merits of the plaintiff's contention that particular conduct is illegal," ante, at 500, in fact the opinion, which tosses out of court almost every conceivable kind of plaintiff who could be injured by the activity claimed to be unconstitutional, can be explained only by an indefensible hostility to the claim on the merits. I can appreciate the Court's reluctance to adjudicate the complex and difficult legal questions involved in determining the constitutionality of practices which assertedly limit residence in a particular municipality to those who are white and relatively well off, and I also understand that the merits of this case could involve grave sociological and political ramifications. But courts cannot refuse to hear a case on the merits merely because they would prefer not to, and it is quite clear, when the record is viewed with dispassion, that at least three of the groups of plaintiffs have made *521 allegations, and supported them with affidavits and documentary evidence, sufficient to survive a motion to dismiss for lack of standing.[2]
I
Before considering the three groups I believe clearly to have standingthe low-income, minority plaintiffs, Rochester Home Builders Association, Inc., and the Housing Council in the Monroe County Area, Inc.it will be helpful to review the picture painted by the allegations as a whole, in order better to comprehend the interwoven interests of the various plaintiffs. Indeed, one glaring defect of the Court's opinion is that it views each set of plaintiffs as if it were prosecuting a separate lawsuit, refusing to recognize that the interests are intertwined, and that the standing of any one group must take into account its position vis-a-vis the others. For example, the Court says that the low-income minority plaintiffs have not alleged facts sufficient to show that but for the exclusionary practices claimed, they would be able to reside in Penfield. The Court then intimates that such a causal relationship could be shown only if "the initial focus [is] on a particular project." Ante, at 508 n. 18. Later, the Court objects to the ability of the Housing Council to prosecute the suit on behalf of its member, Penfield Better Homes Corp., despite the fact that Better Homes had displayed an interest in a particular project, because that project was no longer live. Thus, we must suppose that even if the low-income plaintiffs had alleged a desire to live in the Better Homes project, that allegation would *522 be insufficient because it appears that that particular project might never be built. The rights of low-income minority plaintiffs who desire to live in a locality, then, seem to turn on the willingness of a third party to litigate the legality of preclusion of a particular project, despite the fact that the third party may have no economic incentive to incur the costs of litigation with regard to one project, and despite the fact that the low-income minority plaintiffs' interest is not to live in a particular project but to live somewhere in the town in a dwelling they can afford.
Accepting, as we must, the various allegations and affidavits as true, the following picture emerges: The Penfield zoning ordinance, by virtue of regulations concerning "lot area, set backs, . . . population density, density of use, units per acre, floor area, sewer requirements, traffic flow, ingress and egress[, and] street location," makes "practically and economically impossible the construction of sufficient numbers of low and moderate income" housing. App. 25. The purpose of this ordinance was to preclude low- and moderate-income people and nonwhites from living in Penfield, id., at 15, and, particularly because of refusals to grant zoning variances and building permits and by using special permit procedures and other devices, id., at 17, the defendants succeeded in keeping "low and moderate income persons . . . and non-white persons . . . from residing within . . . Penfield." Id., at 18.
As a result of these practices, various of the plaintiffs were affected in different ways. For example, plaintiffs Ortiz, Reyes, Sinkler, and Broadnax, persons of low or moderate income and members of minority groups, alleged that "as a result" of respondents' exclusionary scheme, id., at 18, 21, 23-24, 26, 29 (emphasis supplied), they could not live in Penfield, although they *523 desired and attempted to do so, and consequently incurred greater commuting costs, lived in substandard housing, and had fewer services for their families and poorer schools for their children than if they had lived in Penfield. Members of the Rochester Home Builders Association were prevented form constructing homes for low- and moderate-income people in Penfield, id., at 153, harming them economically. And Penfield Better Homes, a member of the Housing Council, was frustrated in its attempt to build moderate-income housing, id., at 174.
Thus, the portrait which emerges from the allegations and affidavits is one of total, purposeful, intransigent exclusion of certain classes of people from the town, pursuant to a conscious scheme never deviated from. Because of this scheme, those interested in building homes for the excluded groups were faced with insurmountable difficulties, and those of the excluded groups seeking homes in the locality quickly learned that their attempts were futile. Yet, the Court turns the very success of the allegedly unconstitutional scheme into a barrier to a lawsuit seeking its invalidation. In effect, the Court tells the low-income minority and building company plaintiffs they will not be permitted to prove what they have allegedthat they could and would build and live in the town if changes were made in the zoning ordinance and its applicationbecause they have not succeeded in breaching, before the suit was filed, the very barriers which are the subject of the suit.
II
Low-income and Minority Plaintiffs
As recounted above, plaintiffs Ortiz, Broadnax, Reyes, and Sinkler alleged that "as a result" of respondents' exclusionary practices, they were unable, despite attempts, *524 to find the housing they desired in Penfield, and consequently have incurred high commuting expenses, received poorer municipal services,[3] and, in some instances, have been relegated to live in substandard housing.[4] The Court does not, as it could not, suggest that *525 the injuries, if proved, would be insufficient to give petitioners the requisite "personal stake in the outcome of the controversy as to assure the concrete adverseness which sharpens the presentation of issues," Baker v. Carr, 369 U.S. 186, 204 (1962); Flast v. Cohen, 392 U.S. 83, 99 (1968). Rather, it is abundantly clear that the harm alleged satisfies the "injury in fact, economic or otherwise," Data Processing Service v. Camp, 397 U.S. 150, 152 (1970), requirement which is prerequisite to standing in federal court. The harms claimedconsisting of out-of-pocket losses as well as denial of specifically enumerated services available in Penfield but not in these petitioners' present communities, see nn. 3 and 4, supraare obviously more palpable and concrete than those held sufficient to sustain standing in other cases. See United States v. SCRAP, 412 U.S. 669, 686 (1973); Sierra Club v. Morton, 405 U.S. 727, 735 n. 8, 738, and n. 13 (1972). Cf. Data Processing, supra, at 154.
Instead, the Court insists that these petitioners' allegations are insufficient to show that the harms suffered were caused by respondents' allegedly unconstitutional practices, because "their inability to reside in Penfield [may be] the consequence of the economics of the area housing market, rather than of respondents' assertedly illegal acts." Ante, at 506.
True, this Court has held that to maintain standing, a plaintiff must not only allege an injury but must also assert a " `direct' relationship between the alleged injury *526 and the claim sought to be adjudicated," Linda R. S. v. Richard D., 410 U.S. 614, 618 (1973)that is, "[t]he party who invokes [judicial] power must be able to show . . . that he has sustained or is immediately in danger of sustaining some direct injury as the result of [a statute's] enforcement." Massachusetts v. Mellon, 262 U.S. 447, 488 (1923) (emphasis supplied); Linda R. S., supra, at 618. But as the allegations recited above show, these petitioners have alleged precisely what our cases requirethat because of the exclusionary practices of respondents, they cannot live in Penfield and have suffered harm.[5]
Thus, the Court's real holding is not that these petitioners have not alleged an injury resulting from respondents' action, but that they are not to be allowed to prove one, because "realization of petitioners' desire to live in Penfield always has depended on the efforts and willingness of third parties to build low- and moderate-cost housing," ante, at 505, and "the record is devoid of any indication that . . . [any] projects, would have satisfied petitioners' needs at prices they could afford." Ante, at 506.
Certainly, this is not the sort of demonstration that can or should be required of petitioners at this preliminary stage. In SCRAP, supra, a similar challenge was made: it was claimed that the allegations were vague, 412 U.S., at 689 n. 15, and that the causation theory *527 asserted was untrue, id., at 689. We said: "If . . . these allegations were in fact untrue, then the appellants should have moved for summary judgment on the standing issue and demonstrated to the District Court that the allegations were sham and raised no genuine issue of fact. We cannot say . . . that the appellees could not prove their allegations which, if proved, would place them squarely among those persons injured in fact." Id., at 689-690.[6] See also Jenkins v. McKeithen, 395 U.S. 411, 421-422 (1969).
Here, the very fact that, as the Court stresses, these petitioners' claim rests in part upon proving the intentions and capabilities of third parties to build in Penfield suitable housing which they can afford, coupled with the exclusionary character of the claim on the merits, makes it particularly inappropriate to assume that these petitioners' lack of specificity reflects a fatal weakness in their theory of causation.[7] Obviously they cannot be expected, *528 prior to discovery and trial, to know the future plans of building companies, the precise details of the housing market in Penfield, or everything which has transpired in 15 years of application of the Penfield zoning ordinance, including every housing plan suggested and refused. To require them to allege such facts is to require them to prove their case on paper in order to get into court at all, reverting to the form of fact pleading long abjured in the federal courts. This Court has not required such unachievable specificity in standing cases in the past, see SCRAP, supra, and Jenkins, supra, and the fact that it does so now can only be explained by an indefensible determination by the Court to close the doors of the federal courts to claims of this kind. Understandably, today's decision will be read as revealing hostility to breaking down even unconstitutional zoning *529 barriers that frustrate the deep human yearning of low-income and minority groups for decent housing they can afford in decent surroundings, see nn. 3 and 4, supra.
III
Associations Including Building Concerns
Two of the petitioners are organizations among whose members are building concerns. Both of these organizations, Home Builders and Housing Council, alleged that these concerns have attempted to build in Penfield low- and moderate-income housing, but have been stymied by the zoning ordinance and refusal to grant individual relief therefrom.
Specifically, Home Builders, a trade association of concerns engaged in constructing and maintaining residential housing in the Rochester area, alleged that "[d]uring the past 15 years, over 80% of the private housing units constructed in the Town of Penfield have been constructed by [its] members." App. 147. Because of respondents' refusal to grant relief from Penfield's restrictive housing statutes, members of Home Builders could not proceed with planned low- and moderate-income housing projects, id., at 157, and thereby lost profits. Id., at 156.
Housing Council numbers among its members at least 17 groups involved in the development and construction of low- and middle-income housing. In particular, one member, Penfield Better Homes, "is and has been actively attempting to develop moderate income housing in . . . Penfield" (emphasis supplied), id., at 174, but has been unable to secure the necessary approvals. Ibid.
The Court finds that these two organizations lack standing to seek prospective relief for basically the same reasons: none of their members is, as far as the allegations show, currently involved in developing a particular *530 project. Thus, Home Builders has "failed to show the existence of any injury to its members of sufficient immediacy and ripeness to warrant judicial intervention," ante, at 516 (emphasis supplied), while "the controversy between respondents and Better Homes, however vigorous it may once have been, [has not] remained a live, concrete dispute." Ante, at 517.
Again, the Court ignores the thrust of the complaints and asks petitioners to allege the impossible. According to the allegations, the building concerns' experience in the past with Penfield officials has shown any plans for low- and moderate-income housing to be futile for, again according to the allegations, the respondents are engaged in a purposeful, conscious scheme to exclude such housing. Particularly with regard to a low- or moderate-income project, the cost of litigating, with respect to any particular project, the legality of a refusal to approve it may well be prohibitive. And the merits of the exclusion of this or that project is not at the heart of the complaint; the claim is that respondents will not approve any project which will provide residences for low- and moderate-income people.
When this sort of pattern-and-practice claim is at the heart of the controversy, allegations of past injury, which members of both of these organizations have clearly made, and of a future intent, if the barriers are cleared, again to develop suitable housing for Penfield, should be more than sufficient. The past experiences, if proved at trial, will give credibility and substance to the claim of interest in future building activity in Penfield. These parties, if their allegations are proved, certainly have the requisite personal stake in the outcome of this controversy, and the Court's conclusion otherwise is only a conclusion that this controversy may not be litigated in a federal court.
I would reverse the judgment of the Court of Appeals.
| In this case, a wide range of plaintiffs, alleging various kinds of injuries, claimed to have been affected by the *520 Penfield zoning ordinance, on its face and as applied, and by other practices of the defendant officials of Penfield. Alleging that as a result of these laws and practices low- and moderate-income and minority people have been excluded from Penfield, and that this exclusion is unconstitutional, plaintiffs sought injunctive, declaratory, and monetary relief. The Court today, in an opinion that purports to be a "standing" opinion but that actually, I believe, has overtones of outmoded notions of pleading and of justiciability, refuses to find that any of the variously situated plaintiffs can clear numerous hurdles, some constructed here for the first time, necessary to establish "standing." While the Court gives lip service to the principle, oft repeated in recent years,[1] that "standing in no way depends on the merits of the plaintiff's contention that particular conduct is illegal," ante, at 500, in fact the opinion, which tosses out of court almost every conceivable kind of plaintiff who could be injured by the activity claimed to be unconstitutional, can be explained only by an indefensible hostility to the claim on the merits. I can appreciate the Court's reluctance to adjudicate the complex and difficult legal questions involved in determining the constitutionality of practices which assertedly limit residence in a particular municipality to those who are white and relatively well off, and I also understand that the merits of this case could involve grave sociological and political ramifications. But courts cannot refuse to hear a case on the merits merely because they would prefer not to, and it is quite clear, when the record is viewed with dispassion, that at least three of the groups of plaintiffs have made *521 allegations, and supported them with affidavits and documentary evidence, sufficient to survive a motion to dismiss for lack of standing.[2] I Before considering the three groups I believe clearly to have standingthe low-income, minority plaintiffs, Rochester Home Builders Association, Inc., and the Housing Council in the Monroe County Area, Inc.it will be helpful to review the picture painted by the allegations as a whole, in order better to comprehend the interwoven interests of the various plaintiffs. Indeed, one glaring defect of the Court's opinion is that it views each set of plaintiffs as if it were prosecuting a separate lawsuit, refusing to recognize that the interests are intertwined, and that the standing of any one group must take into account its position vis-a-vis the others. For example, the Court says that the low-income minority plaintiffs have not alleged facts sufficient to show that but for the exclusionary practices claimed, they would be able to reside in Penfield. The Court then intimates that such a causal relationship could be shown only if "the initial focus [is] on a particular project." Ante, at 508 n. 18. Later, the Court objects to the ability of the Housing Council to prosecute the suit on behalf of its member, Penfield Better Homes Corp., despite the fact that Better Homes had displayed an interest in a particular project, because that project was no longer live. Thus, we must suppose that even if the low-income plaintiffs had alleged a desire to live in the Better Homes project, that allegation would *522 be insufficient because it appears that that particular project might never be built. The rights of low-income minority plaintiffs who desire to live in a locality, then, seem to turn on the willingness of a third party to litigate the legality of preclusion of a particular project, despite the fact that the third party may have no economic incentive to incur the costs of litigation with regard to one project, and despite the fact that the low-income minority plaintiffs' interest is not to live in a particular project but to live somewhere in the town in a dwelling they can afford. Accepting, as we must, the various allegations and affidavits as true, the following picture emerges: The Penfield zoning ordinance, by virtue of regulations concerning "lot area, set backs, population density, density of use, units per acre, floor area, sewer requirements, traffic flow, ingress and egress[, and] street location," makes "practically and economically impossible the construction of sufficient numbers of low and moderate income" housing. App. 25. The purpose of this ordinance was to preclude low- and moderate-income people and nonwhites from living in Penfield, and, particularly because of refusals to grant zoning variances and building permits and by using special permit procedures and other devices, the defendants succeeded in keeping "low and moderate income persons and non-white persons from residing within Penfield." As a result of these practices, various of the plaintiffs were affected in different ways. For example, plaintiffs Ortiz, Reyes, Sinkler, and Broadnax, persons of low or moderate income and members of minority groups, alleged that "as a result" of respondents' exclusionary scheme, 21, 23-2, 26, 29 they could not live in Penfield, although they *523 desired and attempted to do so, and consequently incurred greater commuting costs, lived in substandard housing, and had fewer services for their families and poorer schools for their children than if they had lived in Penfield. Members of the Rochester Home Builders Association were prevented form constructing homes for low- and moderate-income people in Penfield, 3, harming them economically. And Penfield Better Homes, a member of the Housing Council, was frustrated in its attempt to build moderate-income housing, Thus, the portrait which emerges from the allegations and affidavits is one of total, purposeful, intransigent exclusion of certain classes of people from the town, pursuant to a conscious scheme never deviated from. Because of this scheme, those interested in building homes for the excluded groups were faced with insurmountable difficulties, and those of the excluded groups seeking homes in the locality quickly learned that their attempts were futile. Yet, the Court turns the very success of the allegedly unconstitutional scheme into a barrier to a lawsuit seeking its invalidation. In effect, the Court tells the low-income minority and building company plaintiffs they will not be permitted to prove what they have allegedthat they could and would build and live in the town if changes were made in the zoning ordinance and its applicationbecause they have not succeeded in breaching, before the suit was filed, the very barriers which are the subject of the suit. II Low-income and Minority Plaintiffs As recounted above, plaintiffs Ortiz, Broadnax, Reyes, and Sinkler alleged that "as a result" of respondents' exclusionary practices, they were unable, despite attempts, *52 to find the housing they desired in Penfield, and consequently have incurred high commuting expenses, received poorer municipal services,[3] and, in some instances, have been relegated to live in substandard housing.[] The Court does not, as it could not, suggest that *525 the injuries, if proved, would be insufficient to give petitioners the requisite "personal stake in the outcome of the controversy as to assure the concrete adverseness which sharpens the presentation of issues," ; Rather, it is abundantly clear that the harm alleged satisfies the "injury in fact, economic or otherwise," Data requirement which is prerequisite to standing in federal court. The harms claimedconsisting of out-of-pocket losses as well as denial of specifically enumerated services available in Penfield but not in these petitioners' present communities, see nn. 3 and supraare obviously more palpable and concrete than those held sufficient to sustain standing in other cases. See United ; Sierra Cf. Data Instead, the Court insists that these petitioners' allegations are insufficient to show that the harms suffered were caused by respondents' allegedly unconstitutional practices, because "their inability to reside in Penfield [may be] the consequence of the economics of the area housing market, rather than of respondents' assertedly illegal acts." Ante, at 506. True, this Court has held that to maintain standing, a plaintiff must not only allege an injury but must also assert a " `direct' relationship between the alleged injury *526 and the claim sought to be adjudicated," Linda R. that is, "[t]he party who invokes [judicial] power must be able to show that he has sustained or is immediately in danger of sustaining some direct injury as the result of [a statute's] enforcement." ; Linda R. at But as the allegations recited above show, these petitioners have alleged precisely what our cases requirethat because of the exclusionary practices of respondents, they cannot live in Penfield and have suffered harm.[5] Thus, the Court's real holding is not that these petitioners have not alleged an injury resulting from respondents' action, but that they are not to be allowed to prove one, because "realization of petitioners' desire to live in Penfield always has depended on the efforts and willingness of third parties to build low- and moderate-cost housing," ante, at 505, and "the record is devoid of any indication that [any] projects, would have satisfied petitioners' needs at prices they could afford." Ante, at 506. Certainly, this is not the sort of demonstration that can or should be required of petitioners at this preliminary stage. In a similar challenge was made: it was claimed that the allegations were 12 U., n. 15, and that the causation theory *527 asserted was untrue, We said: "If these allegations were in fact untrue, then the appellants should have moved for summary judgment on the standing issue and demonstrated to the District Court that the allegations were sham and raised no genuine issue of fact. We cannot say that the appellees could not prove their allegations which, if proved, would place them squarely among those persons injured in fact." -690.[6] See also 395 U. 11, Here, the very fact that, as the Court stresses, these petitioners' claim rests in part upon proving the intentions and capabilities of third parties to build in Penfield suitable housing which they can afford, coupled with the exclusionary character of the claim on the merits, makes it particularly inappropriate to assume that these petitioners' lack of specificity reflects a fatal weakness in their theory of causation.[7] Obviously they cannot be expected, *528 prior to discovery and trial, to know the future plans of building companies, the precise details of the housing market in Penfield, or everything which has transpired in 15 years of application of the Penfield zoning ordinance, including every housing plan suggested and refused. To require them to allege such facts is to require them to prove their case on paper in order to get into court at all, reverting to the form of fact pleading long abjured in the federal courts. This Court has not required such unachievable specificity in standing cases in the past, see and and the fact that it does so now can only be explained by an indefensible determination by the Court to close the doors of the federal courts to claims of this kind. Understandably, today's decision will be read as revealing hostility to breaking down even unconstitutional zoning *529 barriers that frustrate the deep human yearning of low-income and minority groups for decent housing they can afford in decent surroundings, see nn. 3 and III Associations Including Building Concerns Two of the petitioners are organizations among whose members are building concerns. Both of these organizations, Home Builders and Housing Council, alleged that these concerns have attempted to build in Penfield low- and moderate-income housing, but have been stymied by the zoning ordinance and refusal to grant individual relief therefrom. Specifically, Home Builders, a trade association of concerns engaged in constructing and maintaining residential housing in the Rochester area, alleged that "[d]uring the past 15 years, over 80% of the private housing units constructed in the Town of Penfield have been constructed by [its] members." App. 17. Because of respondents' refusal to grant relief from Penfield's restrictive housing statutes, members of Home Builders could not proceed with planned low- and moderate-income housing projects, 7, and thereby lost profits. 6. Housing Council numbers among its members at least 17 groups involved in the development and construction of low- and middle-income housing. In particular, one member, Penfield Better Homes, "is and has been actively attempting to develop moderate income housing in Penfield" but has been unable to secure the necessary approvals. The Court finds that these two organizations lack standing to seek prospective relief for basically the same reasons: none of their members is, as far as the allegations show, currently involved in developing a particular *530 project. Thus, Home Builders has "failed to show the existence of any injury to its members of sufficient immediacy and ripeness to warrant judicial intervention," ante, at 516 while "the controversy between respondents and Better Homes, however vigorous it may once have been, [has not] remained a live, concrete dispute." Ante, at 517. Again, the Court ignores the thrust of the complaints and asks petitioners to allege the impossible. According to the allegations, the building concerns' experience in the past with Penfield officials has shown any plans for low- and moderate-income housing to be futile for, again according to the allegations, the respondents are engaged in a purposeful, conscious scheme to exclude such housing. Particularly with regard to a low- or moderate-income project, the cost of litigating, with respect to any particular project, the legality of a refusal to approve it may well be prohibitive. And the merits of the exclusion of this or that project is not at the heart of the complaint; the claim is that respondents will not approve any project which will provide residences for low- and moderate-income people. When this sort of pattern-and-practice claim is at the heart of the controversy, allegations of past injury, which members of both of these organizations have clearly made, and of a future intent, if the barriers are cleared, again to develop suitable housing for Penfield, should be more than sufficient. The past experiences, if proved at trial, will give credibility and substance to the claim of interest in future building activity in Penfield. These parties, if their allegations are proved, certainly have the requisite personal stake in the outcome of this controversy, and the Court's conclusion otherwise is only a conclusion that this controversy may not be litigated in a federal court. I would reverse the judgment of the Court of Appeals. |
Justice Sotomayor | second_dissenting | false | Scialabba v. Cuellar De Osorio | 2014-06-09T00:00:00 | null | https://www.courtlistener.com/opinion/2678135/scialabba-v-cuellar-de-osorio/ | https://www.courtlistener.com/api/rest/v3/clusters/2678135/ | 2,014 | 2013-056 | 1 | 5 | 4 | Although the workings of our Nation’s immigration
system are often complex, the narrow question of statutory
interpretation at the heart of this case is straightforward.
Which aged-out children are entitled to retain their prior-
ity dates: derivative beneficiaries of visa petitions in all
five family-preference categories, or derivative beneficiar-
ies of petitions in only one category? The initial clause of 8
U.S. C. §1153(h)(3) provides a clear answer: Aged-out
children may retain their priority dates so long as they
meet a single condition—they must be “determined . . . to
be 21 years of age or older for purposes of” derivative
beneficiary status. Because all five categories of aged-out
children satisfy this condition, all are entitled to relief.
Notwithstanding this textual command, the Board of
Immigration Appeals (BIA) ruled that four of the five
categories of aged-out children to whom §1153(h)(3) un-
ambiguously promises priority date retention, are, in fact,
entitled to no relief at all. See Matter of Wang, 25 I. & N.
Dec. 28, 38–39 (2009). The Court defers to that interpre-
tation today. In doing so, the Court does not identify any
2 SCIALABBA v. CUELLAR DE OSORIO
SOTOMAYOR, J., dissenting
ambiguity in the dispositive initial clause of §1153(h)(3).
Indeed, it candidly admits that the clause mandates relief
for “every aged-out beneficiary of a family-preference
petition” in any of the five categories. Ante, at 21. The
Court nevertheless holds that the BIA was free to ignore
this unambiguous text on the ground that §1153(h)(3) also
offers aged-out derivative beneficiaries a type of relief—
automatic conversion—that it thinks can apply only to one
of the five categories. The Court thus perceives a conflict
in the statute that, in its view, permits the BIA to override
§1153(h)(3)’s initial eligibility clause.
In reaching this conclusion, the Court fails to follow a
cardinal rule of statutory interpretation: When deciding
whether Congress has “specifically addressed the question
at issue,” thereby leaving no room for an agency to fill a
statutory gap, courts must “interpret the statute ‘as a . . .
coherent regulatory scheme’ and ‘fit, if possible, all parts
into [a] harmonious whole.’ ” FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 132–133 (2000) (citation
omitted). Because the Court and the BIA ignore obvious
ways in which §1153(h)(3) can operate as a coherent whole
and instead construe the statute as a self-contradiction
that was broken from the moment Congress wrote it, I
respectfully dissent.
I
Under Chevron, the first question we ask when review-
ing an agency’s construction of a statute is whether “Con-
gress has directly spoken to the precise question at issue.”
Chevron U. S. A. Inc. v. Natural Resources Defense Coun-
cil, Inc., 467 U.S. 837, 842 (1984). If it has, then “the
court, as well as the agency, must give effect to th[at]
unambiguously expressed intent.” Id., at 842–843. Con-
gress has spoken directly to the question in this case.
United States citizens and lawful permanent residents
(LPRs) may petition for certain relatives who reside
Cite as: 573 U. S. ____ (2014) 3
SOTOMAYOR, J., dissenting
abroad (known as the “principal beneficiaries” of such
petitions) to receive immigrant visas. Congress has de-
fined five categories of eligible relatives—referred to as
family-preference categories—with annual limits on the
number of visas that may be issued within each category.1
Because the demand for visas outstrips supply, the wait
for a visa can often last many years. While a principal
beneficiary waits, her place in line is determined based on
her “priority date,” the date on which her petition was
filed. See §1153(e)(1); 8 CFR §204.1(b) (2014); 22 CFR
§42.53(a) (2013). Priority dates are therefore crucial—the
earlier one’s priority date, the sooner one’s place will come
up in line and a visa will be available. Significantly, when
the wait ends and a principal beneficiary finally becomes
eligible to apply for a visa, 8 U.S. C. §1153(d) enables the
beneficiary’s spouse and minor children (known as “deriv-
ative beneficiaries”) to do so too.
This case arises from a common problem: Given the
lengthy period prospective immigrants must wait for a
visa, a principal beneficiary’s child—although younger
than 21 when her parent’s petition was initially filed—
often will have turned 21 by the time the parent’s priority
date comes up in line. Such a child is said to have “aged
out” of derivative beneficiary treatment under §1153(d).
By way of example, respondent Norma Uy was the princi-
pal beneficiary of an F4 family-preference petition filed by
her U. S. citizen sister in February 1981. That petition
listed Norma’s daughter, Ruth, who was then two years
old, as a derivative beneficiary. If Norma had reached the
front of the visa line at any time before Ruth’s 21st birth-
day, §1153(d) would have enabled Ruth to accompany
——————
1 The five categories are F1 (unmarried adult children of U. S. citi-
zens); F2A (spouses and unmarried minor children of LPRs); F2B
(unmarried adult children of LPRs); F3 (married children of U. S.
citizens); and F4 (brothers and sisters of U. S. citizens). 8 U.S. C.
§§1153(a)(1)–(4).
4 SCIALABBA v. CUELLAR DE OSORIO
SOTOMAYOR, J., dissenting
Norma to the United States. Unfortunately, it took more
than two decades for Norma’s priority date to become
current, by which point Ruth was 23 and thus too old for
derivative beneficiary status under §1153(d). Norma
therefore immigrated alone to the United States, where
she filed a new F2B petition (for unmarried children of
LPRs) on Ruth’s behalf. Before §1153(h)(3) was enacted,
however, an immigrant in Ruth’s position would have been
unable to retain the February 1981 priority date from her
original petition; the law would have instead required her
to receive a new priority date all the way at the back of the
F2B line.
Congress responded to this problem by enacting
§1153(h)(3), a provision entitled “[r]etention of priority
date.” It states:
“If the age of an alien is determined under [the for-
mula specified in] paragraph (1)[2] to be 21 years of
age or older for the purpos[e] of . . . [§1153(d)] of this
section, the alien’s petition shall automatically be
converted to the appropriate category and the alien
shall retain the original priority date issued upon re-
ceipt of the original petition.”
The provision’s structure is crucial to its meaning. The
initial clause (call it the “eligibility clause”) specifies who
is eligible for relief. The concluding clause (call it the
“relief clause”) describes the two forms of relief to which
eligible persons are entitled. As the title of the provision
suggests, the main form of relief is the right of an aged-out
derivative beneficiary to retain the priority date of her
original petition. In Ruth Uy’s case, such relief would
mean the difference between resuming her wait near the
——————
2 As
the plurality explains, ante, at 9–10, the formula specified in
paragraph (1) subtracts out bureaucratic delays resulting from the
Government’s review of the relevant immigration paperwork. That
formula is not at issue in this case.
Cite as: 573 U. S. ____ (2014) 5
SOTOMAYOR, J., dissenting
front of the F2B line (which would allow her to receive a
visa in short order) and being sent to the back of the line
(where she would potentially have to wait an additional 27
years). Brief for Respondents 52.
The question in this case is which aged-out beneficiaries
of family-preference petitions are eligible for priority date
retention: the aged-out beneficiaries of petitions in all five
family-preference categories (which would include re-
spondents’ children, who were derivative beneficiaries of
F3 and F4 petitions for adult children and adult siblings of
U. S. citizens, respectively), or the aged-out beneficiaries
of only F2A petitions for spouses and children of LPRs (the
interpretation offered by the BIA)?
Congress answered that question in §1153(h)(3)’s eligi-
bility clause, which specifies that relief is to be conferred
on any immigrant who has been “determined under [the
formula specified in] paragraph (1) to be 21 years of age or
older” for the purpose of §1153(d). As the plurality con-
cedes, this clause “states a condition that every aged-out
beneficiary of a preference petition satisfies”—that is, it
makes eligible for relief aged-out children within each of
the F1, F2A, F2B, F3, and F4 categories. Ante, at 14.
Congress made this clear in two mutually reinforc-
ing ways. First, by referring to the formula set forth in
“paragraph (1),” the statute incorporates that paragraph’s
cross-reference to §1153(h)(2). Section 1153(h)(2) in turn
defines the set of covered petitions to include, “with re-
spect to an alien child who is a derivative beneficiary
under [§1153(d)], a petition filed . . . for classification
of the alien’s parent under [§1153(a)].” And §1153(a)
encompasses all five family-preference categories. See
§§1153(a)(1)–(4). Second, §1153(h)(3) promises relief to
those who are found to be 21 “for the purpos[e] of . . .
[§1153](d),” the provision governing derivative beneficiar-
ies. And that provision also unambiguously covers all five
family-preference categories. See §1153(d) (a minor child
6 SCIALABBA v. CUELLAR DE OSORIO
SOTOMAYOR, J., dissenting
is “entitled to the same status” as a parent who is the
principal beneficiary of a petition filed under §1153(a));
§1153(a) (setting forth the five family-preference
categories).
In short, §1153(h)(3)’s eligibility clause answers the
precise question in this case: Aged-out beneficiaries within
all five categories are entitled to relief. “[T]he intent of
Congress is clear,” so “that is the end of the matter.”
Chevron, 467 U.S., at 842.
II
A
Because it concedes that §1153(h)(3)’s eligibility clause
unambiguously “encompasses every aged-out beneficiary
of a family-preference petition,” ante, at 21, the plurality
tries to fit this case into a special pocket of Chevron juris-
prudence in which it says we must defer to an agency’s
decision to ignore a clear statutory command due to a
conflict between that command and another statutory
provision. See ante, at 14, 21. Thus, unlike in the usual
Chevron case, where ambiguity derives from the fact that
the text does not speak with sufficient specificity to the
question at issue, the plurality argues that this is a case in
which ambiguity can only arise—if it is to arise at all—if
Congress has spoken clearly on the issue in diametrically
opposing ways.3 As the plurality frames it, §1153(h)(3)’s
——————
3 To
understand the kind of conflict that can make deference appro-
priate to an agency’s decision to override unambiguous statutory text,
consider the provisions at issue in National Assn. of Home Builders v.
Defenders of Wildlife, 551 U.S. 644 (2007). One provision, §402(b) of
the Clean Water Act, 33 U.S. C. §1342(b), commanded, “without
qualification, that the [Environmental Protection Agency] ‘shall ap-
prove’ a transfer application” whenever nine exclusive criteria were
satisfied. 551 U.S., at 661. A second provision, §7(a)(2) of the Endan-
gered Species Act of 1973, 16 U.S. C. §1536(a)(2), was “similarly
imperative,” ordering “ ‘[e]ach Federal agency’ ” to ensure that its
actions were “ ‘not likely to jeopardize’ ” an endangered species. 551
Cite as: 573 U. S. ____ (2014) 7
SOTOMAYOR, J., dissenting
eligibility and relief clauses are “Janus-faced,” and that
conflict “makes possible alternative reasonable construc-
tions.” Ante, at 14.
In rushing to find a conflict within the statute, the
plurality neglects a fundamental tenet of statutory inter-
pretation: We do not lightly presume that Congress has
legislated in self-contradicting terms. See A. Scalia & B.
Garner, Reading Law: The Interpretation of Legal Texts
180 (2012) (“The provisions of a text should be interpreted
in a way that renders them compatible, not contradic-
tory. . . . [T]here can be no justification for needlessly ren-
dering provisions in conflict if they can be interpreted
harmoniously”). That is especially true where, as here,
the conflict that Congress supposedly created is not be-
tween two different statutes or even two separate provi-
sions within a single statute, but between two clauses in
the same sentence. See ibid. (“[I]t is invariably true that
intelligent drafters do not contradict themselves”). Thus,
time and again we have stressed our duty to “fit, if possi-
ble, all parts [of a statute] into [a] harmonious whole.”
FTC v. Mandel Brothers, Inc., 359 U.S. 385, 389 (1959);
see also Morton v. Mancari, 417 U.S. 535, 551 (1974)
(when two provisions “are capable of co-existence, it is the
duty of the courts . . . to regard each as effective”). In
reviewing an agency’s construction of a statute, courts
“must,” we have emphasized, “interpret the statute ‘as a
. . . coherent regulatory scheme’ ” rather than an internally
inconsistent muddle, at war with itself and defective from
——————
U. S., at 662. “[A]pplying [§7(a)(2)’s] language literally,” we observed,
would contravene the “mandatory and exclusive list of [nine] criteria
set forth in §402(b),” because it would “engraf[t] a tenth criterion onto”
the statute. Id., at 662–663. The agency accordingly could not “simul-
taneously obey” both commands: It could consider 9 criteria or 10, but
not both. Id., at 666. In that circumstance, we found it appropriate to
defer to the agency’s choice as to “which command must give way.”
Ibid.
8 SCIALABBA v. CUELLAR DE OSORIO
SOTOMAYOR, J., dissenting
the day it was written. Brown & Williamson, 529 U.S., at
133. And in doing so, courts should “[e]mplo[y] traditional
tools of statutory construction.” INS v. Cardoza-Fonseca,
480 U.S. 421, 446 (1987). Each of these cautions springs
from a common well: As judicious as it can be to defer to
administrative agencies, our foremost duty is, and always
has been, to give effect to the law as drafted by Congress.
The plurality contends that deference is appropriate
here because, in its view, 8 U.S. C. §1153(h)(3)’s two
clauses are “self-contradictory.” Ante, at 33. But far from
it being unworkable (or even difficult) for the agency to
obey both clauses, traditional tools of statutory construc-
tion reveal that §1153(h)’s clauses are entirely compatible.
B
The plurality argues that although §1153(h)(3)’s eligibil-
ity clause clearly encompasses aged-out beneficiaries
within all five preference categories, the relief clause
implies a conflicting “limitation on the eligible class of
recipients.” Ante, at 15. The plurality infers that limita-
tion from two premises. First, it contends that no aged-
out child may retain her priority date unless her petition
is also eligible for automatic conversion. And second, it
asserts that only aged-out F2A beneficiaries may receive
automatic conversion. As a result, the plurality concludes,
it was reasonable for the BIA to exclude aged-out children
in the four other categories from receiving both automatic
conversion and priority date retention, thereby rendering
§1153(h)(3)’s eligibility clause defunct.
The plurality’s conclusion is wrong because its premises
are wrong. For one, §1153(h)(3) is naturally read to confer
priority date retention as an independent form of relief to
all aged-out children, regardless of whether automatic
conversion is separately available. And even if that were
wrong, the plurality’s supposition that only F2A benefi-
ciaries can receive automatic conversion is incorrect on its
Cite as: 573 U. S. ____ (2014) 9
SOTOMAYOR, J., dissenting
own terms. Because either of these interpretations would
treat §1153(h)(3) as a coherent whole, the BIA’s construc-
tion was impermissible.
1
The most obvious flaw in the plurality’s analysis is its
presumption that §1153(h)(3) permits an aged-out child to
retain her original priority date only if her petition can
be automatically converted. That is incorrect for many
reasons.
When an immigrant is determined to have aged out of
derivative beneficiary status, §1153(h)(3) prescribes two
forms of relief: “[T]he alien’s petition shall automatically
be converted to the appropriate category and the alien
shall retain the original priority date issued upon receipt
of the original petition.” We have held that when a statute
provides two forms of relief in this manner, joined by the
conjunction “and,” the two remedies are “distinct.” United
States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241–
242 (1989). That understanding makes particular sense
here, where Congress used the mandatory word “shall”
twice, once before each form of relief. See Lexecon Inc. v.
Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35
(1998) (“[T]he mandatory [term] ‘shall’ . . . normally cre-
ates an obligation impervious to judicial discretion”).
Moreover, the two “shall” commands operate on different
subjects, further reinforcing that they prescribe distinct
remedies: An aged-out “alien’s petition shall automatically
be converted,” but it is “the alien” herself who, in all
events, “shall retain” her original priority date.
§1153(h)(3) (emphasis added).
The plurality responds with a series of examples in
which the word “and” is used to join two commands, one of
which is—as the plurality asserts here—dependent on
another. Ante, at 28, and n. 15. But as the plurality
recognizes, ante, at 28, that is hardly the only way the
10 SCIALABBA v. CUELLAR DE OSORIO
SOTOMAYOR, J., dissenting
word can be used. For example: “If today’s baseball game
is rained out, your ticket shall automatically be converted
to a ticket for next Saturday’s game, and you shall retain
your free souvenir from today’s game.” Or: “If you provide
the DMV with proof of your new address, your voter regis-
tration shall automatically be converted to the correct
polling location, and you shall receive in the mail an up-
dated driver’s license.” It is plain in both of these exam-
ples that the two commands are distinct—the fan in the
first example can keep her free souvenir even if she cannot
attend next Saturday’s game; the new resident will receive
an updated driver’s license even if she is ineligible to vote.
What the plurality does not explain is why we should forgo
the same understanding of §1153(h)(3)’s relief clause when
that would treat the statute as a coherent whole (and
when the plurality’s alternative interpretation would
render the statute a walking self-contradiction within the
span of a few words).
With the text unavailing, the plurality turns to a policy
argument. The plurality worries that if automatic conver-
sion and priority date retention are independent benefits,
aged-out beneficiaries will be able to “hold on to a priority
date for years . . . while waiting for a relative to file a new
petition,” which might hamper U. S. Citizenship and
Immigration Services (USCIS) operations. Ante, at 29–30.
But the plurality’s fears of administrative inconvenience
are belied by the fact that USCIS has administered prior-
ity date retention in exactly this manner for years, with no
apparent problems. Well before §1153(h)(3) was enacted,
a regulation provided aged-out F2A derivative beneficiar-
ies the ability to retain their priority dates without also
providing automatic conversion. See 8 CFR §204.2(a)(4)
(permitting priority date retention after a “separate peti-
tion” is filed); 57 Fed. Reg. 41053, 41059 (1992) (adopting
this provision). Indeed, the USCIS continues to instruct
field officers that a “separate petition” must be filed in
Cite as: 573 U. S. ____ (2014) 11
SOTOMAYOR, J., dissenting
order for such beneficiaries to “retain” their “original
priority date[s].” Adjudicator’s Field Manual, ch. 21.2(c)(5),
online at http://www.uscis.gov/iframe/ilink/docView/
AFM/HTML/AFM/0-0-0-1.html (all Internet materials as
visited June 5, 2014, and available in Clerk of Court’s case
file). The notion that it is somehow impossible for an
immigrant to retain her priority date contingent upon the
filing of a separate petition is therefore contradicted by
years of agency experience.4
——————
4 The plurality does not dispute that USCIS has administered priority
date retention as a form of relief independent from automatic conver-
sion for years. Ante, at 30, n. 16. It nonetheless argues that the same
approach is impermissible here for the counterintuitive reason that a
pre-existing regulation used express language limiting priority date
retention to derivative beneficiaries of F2A petitions alone. See ante, at
30, n. 16 (noting that 8 CFR §204.2(a)(4) permitted an aged-out benefi-
ciary to retain her priority date “ ‘if the subsequent petition is filed by
the same petitioner’ ”). Congress included no such language to limit the
scope of priority date retention in 8 U.S. C. §1153(h)(3), however,
which just reinforces what the eligibility clause already makes clear:
Priority date retention is independently available for aged-out de-
rivative beneficiaries of all family-preference petitions, not just F2A
petitions.
The plurality also fails to account for the numerous other contexts in
which USCIS has administered priority date retention as a benefit
distinct from automatic conversion. See, e.g., §1154(k)(3) (providing
priority date retention to unmarried adult children of LPRs whose
parents become naturalized citizens “[r]egardless of whether a petition
is converted”); 8 CFR §204.5(e) (“A petition approved on behalf of an
alien under [the employment-based immigration provisions of §1153(b)]
accords the alien the priority date of the approved petition for any
subsequently filed [employment] petition”); §204.12(f)(1) (a “physician
beneficiary” who finds a “new employer [who] desir[es] to petition
[USCIS] on the physician’s behalf” must submit a new petition, but
“will retain the priority date from the initial” petition). Finally, the
plurality suggests that priority date retention can operate independently
of automatic conversion only if the date to be retained is attached to
a valid petition. Ante, at 30, and n. 16. But that cannot be squared with
USCIS’s longstanding practice of allowing F2A beneficiaries to retain
the priority dates from their no-longer valid petitions upon the filing of
a new petition.
12 SCIALABBA v. CUELLAR DE OSORIO
SOTOMAYOR, J., dissenting
In the end, the plurality suggests that we should defer
to the BIA’s all-or-nothing approach because “context
compels” it. Ante, at 28. Yet fatally absent from the plu-
rality’s discussion of context is any mention of the first
clause of the very same provision, which, as the plurality
admits, unambiguously confers relief upon all five catego-
ries of aged-out children. That clause is dispositive, be-
cause—assuming that F2A beneficiaries alone can receive
automatic conversion—a reading that treats automatic
conversion and priority date retention as independent
benefits is the only one that would “produc[e] a substan-
tive effect that is compatible with the rest of the law.”
United Sav. Assn. of Tex. v. Timbers of Inwood Forest
Associates, Ltd., 484 U.S. 365, 371 (1988); see also Home
Builders, 551 U.S., at 666 (“ ‘It is a “fundamental canon of
statutory construction that the words of a statute must be
read in their context and with a view to their place in the
overall statutory scheme” ’ ”).
2
Even if it were somehow impossible for an aged-out
child to retain her priority date independently of auto-
matic conversion, the plurality is wrong to view automatic
conversion as a benefit that F2A beneficiaries alone may
enjoy.
Section 1153(h)(3) provides that if an aged-out child
qualifies for relief under the statute’s eligibility clause,
“the alien’s petition shall automatically be converted to
the appropriate category.” Whether an aged-out benefi-
ciary in a given preference category may enjoy this relief
turns on how one understands the words “automatically”
and “converted.” Because the statute does not define the
terms, we apply their ordinary meaning. See Burrage v.
United States, 571 U. S. ___, ___ (2014) (slip op., at 6).
The ordinary meaning of “automatic” is “ ‘having the
capability of starting, operating, moving, etc., inde-
Cite as: 573 U. S. ____ (2014) 13
SOTOMAYOR, J., dissenting
pendently’ ” based upon some predetermined predicate
event, with no “additional decisions, contingencies, or
delays.” Ante, at 15 (quoting Random House Webster’s
Unabridged Dictionary 140 (2d ed. 2001)). The ordinary
meaning of “convert” is “to change (something) into a
different form.” Id., at 444. Here, the statute specifies the
form into which an aged-out child’s petition shall be
changed: another petition in the “appropriate category.”
§1153(h)(3). Tying the terms together, then, “automatic
conversion” means changing an old petition into a new
petition in an appropriate category upon the occurrence
of some predicate event, without a further decision or
contingency.
All aged-out beneficiaries can have their petitions auto-
matically converted under this definition. Perhaps most
sensibly, all five categories of petitions may be converted
to an appropriate category, without any further decision or
contingency, upon a logical predicate event: when USCIS
receives confirmation that an appropriate category exists.
To see how this would work, recall the case of Norma Uy,
and her daughter, Ruth. Norma was the principal benefi-
ciary of an F4 petition filed by her U. S. citizen sister;
Ruth was a derivative beneficiary of the same petition.
Because Ruth had aged out of derivative beneficiary sta-
tus prior to Norma’s reaching the front of the visa line,
Norma immigrated to the United States without Ruth.
Once Norma became an LPR, however, she also became
eligible to file a new petition on Ruth’s behalf under
the F2B category (unmarried adult children of LPRs),
§1153(a)(2)(B). Thus, once Norma provides confirmation
of that eligibility to sponsor Ruth (i.e., that she is an LPR,
that Ruth is her daughter, and that she has not committed
disqualifying criminal conduct, see ante, at 4), Ruth’s
original F4 petition can automatically be converted to an
14 SCIALABBA v. CUELLAR DE OSORIO
SOTOMAYOR, J., dissenting
F2B petition, with no additional decision or contingency.5
Indeed, this is how USCIS already applies automatic
conversion in other contexts. For example, when an LPR
has filed an F2A petition on behalf of a spouse or child,
and the LPR subsequently becomes a U. S. citizen, a pro-
vision entitled “[a]utomatic conversion of preference classi-
fication,” 8 CFR §204.2(i), permits the F2A petition to be
automatically converted to an “immediate relative” peti-
tion, §204.2(i)(3). See ante, at 16. Significantly, the predi-
cate event that triggers this conversion is the agency’s
receipt of proof that the petition’s sponsor has become a
U. S. citizen—proof, in other words, that there is an ap-
propriate category into which the petition can be converted.6
Section 1153(h)(3)’s automatic conversion remedy can
sensibly be administered in the same way.
The plurality’s contrary conclusion that automatic
conversion is impossible for all but one category of family-
preference petitions hinges on three basic misunderstand-
——————
5 Of course, just like any other beneficiary of a family visa petition,
one whose petition has been automatically converted must still satisfy
the requirements for actually obtaining a visa. See ante, at 5. For
example, all visa applicants must attach an “affidavit of support” from
their sponsors. 8 U.S. C. §1182(a)(4)(C)(ii). As is true for any other
beneficiary, nothing stops a sponsor from declining to swear their
support for the beneficiary of an automatically converted petition after
a visa has become available. Converting petitions upon proof of an
appropriate category therefore produces no uncertainties or contingen-
cies that do not already exist for all family visa applicants to begin
with.
6 See Dept. of State, If You Were an LPR and Are Now a U. S. Citizen:
Upgrading a Petition, online at http://travel.state.gov/visa/immigrants/
types/types_2991.html#5. The regulation cited by the plurality, 8 CFR
§204.2(i), is not to the contrary; it merely establishes that when an
automatic conversion occurs, it shall be treated as “[e]ffective upon the
date of naturalization,” §204.2(i)(3). As the State Department’s instruc-
tions make clear, the conversion itself takes place after the new citizen
“send[s] proof of [her] U. S. citizenship to the National Visa Center.”
Dept. of State, If You Were an LPR and Are Now a U. S. Citizen:
Upgrading a Petition.
Cite as: 573 U. S. ____ (2014) 15
SOTOMAYOR, J., dissenting
ings. First, the plurality contends that automatic conver-
sion is triggered not by confirmation of the existence of an
appropriate category, but rather by a different predicate
event: the moment when “ ‘an immigrant visa number
bec[omes] available for the alien’s parent.’ ” Ante, at 19.
This is a curious argument, not least because nothing in
§1153(h)(3) suggests it. That provision simply makes
automatic conversion available “[i]f the age of an alien is
determined” to be “be 21 years of age or older” for pur-
poses of §1153(d). Section 1153(h)(3) thus states the
condition that an immigrant must satisfy to be eligible for
automatic conversion, but it nowhere commands when the
conversion should occur. There is no reason why conver-
sion cannot occur at the logical point just described: the
moment when USCIS receives proof that an appropriate
category exists.
The plurality acknowledges that §1153(h)(3) “does not
explicitly identify th[e] point in time” at which a “petition
is to be ‘converted.’ ” Ante, at 18. It nevertheless suggests
that the date when a conversion occurs “is best viewed” as
the date when a visa became available for the aged-out
child’s parent. Ante, at 19. But Congress could not have
intended conversion to occur at that point for a glaring
reason: The date on which a visa becomes available for an
aged-out child’s parent occurs before the point at which
the child is determined to have aged-out under §1153(d)—
the very requirement §1153(h)(3) prescribes for the aged-
out child to be eligible for automatic conversion in the first
place. As the plurality explains, ante, at 5–6, such age
determinations occur when an immigration official re-
views the child’s derivative visa application, which invari-
ably happens after a visa became available for the child’s
parent as the principal beneficiary. At best, then, the
plurality’s interpretation requires USCIS to convert peti-
tions at a time when it does not know which petitions are
eligible for conversion; at worst, it requires the automatic
16 SCIALABBA v. CUELLAR DE OSORIO
SOTOMAYOR, J., dissenting
conversion of petitions benefiting immigrants who will
never even qualify for such relief (i.e., aged-out immi-
grants who, for any number of reasons, never file a visa
application and so are never determined by officials to be
older than 21).
Faced with this fact, the plurality falls back to the posi-
tion that automatic conversion must merely be viewed as
having occurred “as of th[e] . . . date” when a parent’s visa
becomes available, although the actual “assess[ment]” of
the conversion will necessarily occur at some future point
in time. Ante, at 24, n. 13. That approach, however,
introduces precisely the kind of “additional decisions,
contingencies, and delays” that the plurality regards as
inconsistent with the ordinary meaning of “automatic,”
ante, at 15. For even under the plurality’s view, automatic
conversion cannot actually be “assesse[d]” until and unless
the aged-out child decides to apply for a visa and officials
assessing the child’s application deem her to have aged out
(events which may themselves be contingent on the child’s
parent first filing her own successful visa application, see
ante, at 6). The far simpler approach is for conversion to
occur automatically upon the most logical moment sug-
gested by the statute: the moment when USCIS confirms
that an “appropriate category” exists, §1153(h)(3). Indeed,
the plurality fails to explain why this cannot be the proper
predicate; it simply dismisses such an approach as sup-
ported “only” by “a single-minded resolve . . . to grant
relief to every possible aged-out beneficiary.” Ante, at 25,
n. 13. But that criticism is revealing: The “single-minded
resolve” the plurality maligns is Congress’ own, for it is
Congress that expressly provided, in the eligibility clause,
for aged-out beneficiaries in all five categories to be granted
relief.
The plurality’s second argument is a corollary of its
first. If automatic conversion must occur when a visa first
becomes available for a parent, the plurality frets, that
Cite as: 573 U. S. ____ (2014) 17
SOTOMAYOR, J., dissenting
will mean an aged-out child will have her petition auto-
matically converted before immigration officials can ascer-
tain whether her parent is even qualified to sponsor her.
See ante, at 17–18. True enough, but that only confirms
that it makes no sense to force USCIS to convert petitions
so prematurely. The plurality’s fears can all be averted by
having automatic conversion occur, as with petitions
sponsored by LPRs who later become U. S. citizens, supra,
at 13–15, when USCIS receives confirmation that conver-
sion is appropriate.7
The plurality’s final argument is that something about
the term “conversion” precludes relief for all but the aged-
out derivative beneficiaries of F2A petitions. The plurality
accepts that “conversion” will always require changing
some aspects of a petition, including its preference category
(e.g., from F2A to F2B) and the identity of its principal
beneficiary (e.g., from an aged-out child’s parent to the
——————
7 The plurality is unsatisfied with this approach to automatic conver-
sion on the theory that, in order to eliminate all additional “decisions,
contingencies, or delays” in the process, this solution postpones the
moment of “conversion” until the necessary contingencies are satisfied.
Yet the plurality’s approach does the same thing, because even on its
account, some “decisions, contingencies, or delays” must occur before
conversion can actually be assessed by immigration officials (i.e., a
parent’s visa must become available, the child must apply for a visa,
and immigration officials must deem her to have aged out, see supra, at
16). So the only question is whether the “conversion” should be consid-
ered to occur after all “decisions, contingencies, or delays” are in the
past such that there is an appropriate category for conversion, or after
only some. The former understanding would allow the unambiguous
language of the eligibility clause to be carried into effect; the latter
would preclude relief for four categories of derivative beneficiaries. In
support of its restrictive interpretation, the plurality offers only the
argument that converting a petition upon proof of an appropriate
category would require the “filing of a new document. . . that shows the
parent’s eligibility to sponsor her aged-out [child].” Ante, at 26, n. 14.
The fact that a statute may require an agency to process a form is not a
reason to disregard a coherent reading of a statute in favor of a self-
contradictory one.
18 SCIALABBA v. CUELLAR DE OSORIO
SOTOMAYOR, J., dissenting
child). But the plurality asserts that a related kind of
change is entirely off the table: a change to the identity of
the petition’s sponsor. Ante, at 15. If a converted petition
requires a different sponsor than the original petition, the
plurality suggests, then it cannot be “converted” at all.
The plurality points to nothing in the plain meaning of
“conversion” that supports this distinction. It instead
argues that a “conversion” cannot entail a change to the
identity of a petition’s sponsor because that is “the exclu-
sive way immigration law used the term when Congress
enacted the CSPA.” Ante, at 16. But immigration law has
long allowed petitions to be converted from one category to
another in contexts where doing so requires changing the
sponsor’s identity. In 2006, for example, the Secretary of
Homeland Security promulgated a regulatory provision
entitled “automatic conversion of preference classifica-
tion,” 8 CFR §204.2(i)(1)(iv), which allows the automatic
conversion of a petition filed by a U. S. citizen on behalf of
her spouse to a widower petition if the citizen dies before
the petition is approved. That conversion requires chang-
ing the sponsor from the citizen to the widower himself.
The fact that the agency used the word “conversion” to
refer to a process in which the petition’s sponsor was
changed, just a few years after 8 U.S. C. §1153(h)(3) was
enacted, strongly suggests that the term did not have the
exclusive meaning that the plurality suggests. Similarly,
§1154(a)(1)(D)(i)(III), a provision enacted two years before
§1153(h)(3), see Victims of Trafficking and Violence Pro-
tection Act of 2000, 114 Stat. 1522, provides that a peti-
tion filed by a battered spouse on behalf of her child “shall
be considered” a self-petition filed by the child herself if
the child ages out—a conversion that obviously requires
changing the identity of the sponsor from the battered
spouse to the aged-out child. And §1153(h)(4) confirms
that such “self-petitioners” are entitled to §1153(h)(3)’s
automatic conversion remedy. The plurality never ex-
Cite as: 573 U. S. ____ (2014) 19
SOTOMAYOR, J., dissenting
plains how it can be mandatory to “convert” the identity of
the sponsors in these contexts yet impermissible to “con-
vert” the sponsors of the petitions at issue here—an un-
derstanding that is especially implausible in light of Con-
gress’ command that such petitions “shall automatically be
converted to the appropriate category.” §1153(h)(3).8
III
The concurrence reaches the same result as the plural-
ity does, but for a different reason. It begins by recognizing
that §1153(h)(3)’s eligibility clause “states a condition”
that is satisfied by aged-out “beneficiaries from any pref-
erence category.” Ante, at 2 (ROBERTS, C. J., concurring in
judgment). The concurrence thus acknowledges that the
eligibility clause encompasses aged-out beneficiaries of
family-preference petitions in the F1, F2A, F2B, F3, and
F4 categories.
The concurrence nonetheless concludes that the BIA
was free to exclude F1, F2B, F3, and F4 beneficiaries from
——————
8 Moreover, had Congress actually intended to permit relief only
where a new petition has the same sponsor as the original petition, it
had a ready model in the language of a pre-existing regulation. See 8
CFR §204.2(a)(4) (conferring priority date retention on a derivative
beneficiary only “if the subsequent petition is filed by the same peti-
tioner”). If it had wanted to limit §1153(h)(3) to just the beneficiaries
preferred by the BIA, “Congress could easily have said so.” Kucana v.
Holder, 558 U.S. 233, 248 (2010).
The plurality’s argument that a “conversion” cannot entail a change
to a petition’s sponsor ultimately boils down to this: A “conversion”
cannot include “any substantive alteration” to a petition, ante, at 15,
except when it can. For example, a “conversion” can (indeed, must)
entail changing a petition’s family-preference category and changing
the petition’s principal beneficiary (from the aged-out child’s parent to
the child herself). And the plurality concedes that in other contexts,
conversion must entail changing the identity of a petition’s sponsor
from the beneficiary’s qualifying relative to the beneficiary himself.
Ante, at 16–17, n. 10. The plurality does not explain why the word
“conversion” can encompass all of these other substantive alterations,
but not a change to the identity of a petition’s sponsor in just this case.
20 SCIALABBA v. CUELLAR DE OSORIO
SOTOMAYOR, J., dissenting
the clear scope of the eligibility clause because of a per-
ceived ambiguity as to which beneficiaries can receive
“automatic conversion.” See ante, at 4 (“Congress did not
speak clearly to which petitions can ‘automatically be
converted’ ”). In other words, the concurrence concludes
that it was reasonable for the agency to ignore the clear
text of the eligibility clause because the phrase “automatic
conversion” might be read in a manner that would benefit
F2A beneficiaries alone.
This is an unusual way to interpret a statute. The
concurrence identifies no case in which we have deferred
to an agency’s decision to use ambiguity in one portion of a
statute as a license to ignore another statutory provision
that is perfectly clear. To the contrary, “[a] provision that
may seem ambiguous in isolation is often clarified by the
remainder of the statutory scheme . . . because only one of
the permissible meanings produces a substantive effect
that is compatible with the rest of the law.” United Sav.
Assn. of Tex., 484 U.S., at 371.
The concurrence justifies its conclusion only by treating
the eligibility clause as a nullity. The concurrence is quite
candid about its approach, arguing that §1153(h)(3)’s relief
clause is its “only operative provision” and that the eligi-
bility clause does not “grant anything to anyone.” Ante, at
3. Yet “[i]t is our duty ‘to give effect, if possible, to every
clause and word of a statute.’ ” United States v. Menasche,
348 U.S. 528, 538–539 (1955). And there is an easy way
to give meaning to the eligibility clause: The clause identi-
fies who is entitled to the benefits specified in the ensuing
relief clause.
The concurrence relies ultimately on an irrelevant
hypothetical: “If a student is determined to be enrolled at
an accredited university, the student’s cost of off-campus
housing shall be deductible on her tax return.” Ante, at 3.
In this example, the concurrence points out, it is “appar-
ent. . . that an enrolled student who lives on campus is not
Cite as: 573 U. S. ____ (2014) 21
SOTOMAYOR, J., dissenting
entitled to the deduction, even though the student falls
within the conditional first clause.” Ibid. That is correct,
but it says nothing about this case. For in the hypothet-
ical, it is plain that the promised relief (a tax deduction for
off-campus housing) cannot apply to the persons at issue
(students who live on campus). Here, however, the relief
promised in §1153(h)(3) (priority date retention and auto-
matic conversion) can be given to persons specified in
the initial eligibility clause (aged-out children in all five
family-preference categories). See supra, at 9–19. And
once one recognizes that aged-out children in each cate-
gory unambiguously covered by the eligibility clause can
receive relief, the BIA’s view that no children in four of
those categories can ever receive any relief cannot be
reasonable.9
* * *
Congress faced a difficult choice when it enacted
§1153(h)(3). Given the “zero-sum world of allocating a
limited number of visas,” ante, at 33, Congress could have
——————
9 More fundamentally, the concurrence’s hypothetical is irrelevant
because it altogether ignores a critical feature of the statute before us:
§1153(h)(2)’s express enumeration of the covered petitions to include
petitions filed within the F1, F2A, F2B, F3, and F4 preference catego-
ries. See supra, at 5–6. A proper analogy would therefore be a provi-
sion that says the following: “If a student is determined to be enrolled
at an accredited junior college, community college, or 4-year college, the
student’s room and board shall be tax-deductible and the student shall
receive financial aid.” Is there any permissible reading of this provision
under which, although expressly covered in the eligibility clause, all
junior and community college students are categorically forbidden to
receive both the tax deduction and financial aid? Of course not. And
that would be true even if the term “room and board” were ambiguous
and thus open to an interpretation under which only 4-year students
could receive the tax deduction. Likewise here, where F1, F2B, F3, and
F4 derivative beneficiaries may not be categorically excluded from relief
because they are indisputably covered by §1153(h)(3)’s eligibility clause
and able to receive the relief described in the relief clause.
22 SCIALABBA v. CUELLAR DE OSORIO
SOTOMAYOR, J., dissenting
required aged-out children like Ruth Uy to lose their place
in line and wait many additional years (or even decades)
before being reunited with their parents, or it could have
enabled such immigrants to retain their place in line—
albeit at the cost of extending the wait for other immi-
grants by some shorter amount. Whatever one might
think of the policy arguments on each side, however, this
much is clear: Congress made a choice. The plurality’s
contrary view—that Congress actually delegated the
choice to the BIA in a statute that unambiguously encom-
passes aged-out children in all five preference categories
and commands that they “shall retain the[ir] original
priority date[s],” §1153(h)(3)—is untenable.
In the end, then, this case should have been resolved
under a commonsense approach to statutory interpreta-
tion: Using traditional tools of statutory construction,
agencies and courts should try to give effect to a statute’s
clear text before concluding that Congress has legislated
in conflicting and unintelligible terms. Here, there are
straightforward interpretations of §1153(h)(3) that allow it
to function as a coherent whole. Because the BIA and the
Court ignore these interpretations and advance a con-
struction that contravenes the language Congress wrote, I
respectfully dissent. | Although the workings of our Nation’s immigration system are often complex, the narrow question of statutory interpretation at the heart of this case is straightforward. Which aged-out children are entitled to retain their prior- ity dates: derivative beneficiaries of visa petitions in all five family-preference categories, or derivative beneficiar- ies of petitions in only one category? The initial clause of 8 U.S. C. provides a clear answer: Aged-out children may retain their priority dates so long as they meet a single condition—they must be “determined to be 21 years of age or older for purposes of” derivative beneficiary status. Because all five categories of aged-out children satisfy this condition, all are entitled to relief. Notwithstanding this textual command, the Board of Immigration Appeals (BIA) ruled that four of the five categories of aged-out children to whom un- ambiguously promises priority date retention, are, in fact, entitled to no relief at all. See Matter of Wang, 25 I. & N. Dec. 28, 38–39 (2009). The Court defers to that interpre- tation today. In doing so, the Court does not identify any 2 SCIALABBA v. CUELLAR DE OSORIO SOTOMAYOR, J., dissenting ambiguity in the dispositive initial clause of Indeed, it candidly admits that the clause mandates relief for “every aged-out beneficiary of a family-preference petition” in any of the five categories. Ante, at 21. The Court nevertheless holds that the BIA was free to ignore this unambiguous text on the ground that also offers aged-out derivative beneficiaries a type of relief— automatic conversion—that it thinks can apply only to one of the five categories. The Court thus perceives a conflict in the statute that, in its view, permits the BIA to override ’s initial eligibility clause. In reaching this conclusion, the Court fails to follow a cardinal rule of statutory interpretation: When deciding whether Congress has “specifically addressed the question at issue,” thereby leaving no room for an agency to fill a statutory gap, courts must “interpret the statute ‘as a coherent regulatory scheme’ and ‘fit, if possible, all parts into [a] harmonious whole.’ ” (citation omitted). Because the Court and the BIA ignore obvious ways in which can operate as a coherent whole and instead construe the statute as a self-contradiction that was broken from the moment Congress wrote it, I respectfully dissent. I Under the first question we ask when review- ing an agency’s construction of a statute is whether “Con- gress has directly spoken to the precise question at issue.” U. S. A. If it has, then “the court, as well as the agency, must give effect to th[at] unambiguously expressed intent.” at –843. Con- gress has spoken directly to the question in this case. United States and lawful permanent residents (LPRs) may petition for certain relatives who reside Cite as: 573 U. S. (2014) 3 SOTOMAYOR, J., dissenting abroad (known as the “principal beneficiaries” of such petitions) to receive immigrant visas. Congress has de- fined five categories of eligible relatives—referred to as family-preference categories—with annual limits on the number of visas that may be issued within each category.1 Because the demand for visas outstrips supply, the wait for a visa can often last many years. While a principal beneficiary waits, her place in line is determined based on her “priority date,” the date on which her petition was filed. See (b) (2014); 22 CFR (2013). Priority dates are therefore crucial—the earlier one’s priority date, the sooner one’s place will come up in line and a visa will be available. Significantly, when the wait ends and a principal beneficiary finally becomes eligible to apply for a visa, 8 U.S. C. enables the beneficiary’s spouse and minor children (known as “deriv- ative beneficiaries”) to do so too. This case arises from a common problem: Given the lengthy period prospective immigrants must wait for a visa, a principal beneficiary’s child—although younger than 21 when her parent’s petition was initially filed— often will have turned 21 by the time the parent’s priority date comes up in line. Such a child is said to have “aged out” of derivative beneficiary treatment under By way of example, respondent Norma Uy was the princi- pal beneficiary of an F4 family-preference petition filed by her U. S. citizen sister in February 1981. That petition listed Norma’s daughter, Ruth, who was then two years old, as a derivative beneficiary. If Norma had reached the front of the visa line at any time before Ruth’s 21st birth- day, would have enabled Ruth to accompany —————— 1 The five categories are F1 (unmarried adult children of U. S. citi- zens); F2A (spouses and unmarried minor children of LPRs); F2B (unmarried adult children of LPRs); F3 (married children of U. S. ); and F4 (brothers and sisters of U. S. ). 8 U.S. C. 4 SCIALABBA v. CUELLAR DE OSORIO SOTOMAYOR, J., dissenting Norma to the United States. Unfortunately, it took more than two decades for Norma’s priority date to become current, by which point Ruth was 23 and thus too old for derivative beneficiary status under Norma therefore immigrated alone to the United States, where she filed a new F2B petition (for unmarried children of LPRs) on Ruth’s behalf. Before was enacted, however, an immigrant in Ruth’s position would have been unable to retain the February 1981 priority date from her original petition; the law would have instead required her to receive a new priority date all the way at the back of the F2B line. Congress responded to this problem by enacting a provision entitled “[r]etention of priority date.” It states: “If the age of an alien is determined under [the for- mula specified in] paragraph (1)[2] to be 21 years of age or older for the purpos[e] of [] of this section, the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon re- ceipt of the original petition.” The provision’s structure is crucial to its meaning. The initial clause (call it the “eligibility clause”) specifies who is eligible for relief. The concluding clause (call it the “relief clause”) describes the two forms of relief to which eligible persons are entitled. As the title of the provision suggests, the main form of relief is the right of an aged-out derivative beneficiary to retain the priority date of her original petition. In Ruth Uy’s case, such relief would mean the difference between resuming her wait near the —————— 2 As the plurality explains, ante, at 9–10, the formula specified in paragraph (1) subtracts out bureaucratic delays resulting from the Government’s review of the relevant immigration paperwork. That formula is not at issue in this case. Cite as: 573 U. S. (2014) 5 SOTOMAYOR, J., dissenting front of the F2B line (which would allow her to receive a visa in short order) and being sent to the back of the line (where she would potentially have to wait an additional 27 years). Brief for Respondents 52. The question in this case is which aged-out beneficiaries of family-preference petitions are eligible for priority date retention: the aged-out beneficiaries of petitions in all five family-preference categories (which would include re- spondents’ children, who were derivative beneficiaries of F3 and F4 petitions for adult children and adult siblings of U. S. respectively), or the aged-out beneficiaries of only F2A petitions for spouses and children of LPRs (the interpretation offered by the BIA)? Congress answered that question in ’s eligi- bility clause, which specifies that relief is to be conferred on any immigrant who has been “determined under [the formula specified in] paragraph (1) to be 21 years of age or older” for the purpose of As the plurality con- cedes, this clause “states a condition that every aged-out beneficiary of a preference petition satisfies”—that is, it makes eligible for relief aged-out children within each of the F1, F2A, F2B, F3, and F4 categories. Ante, at 14. Congress made this clear in two mutually reinforc- ing ways. First, by referring to the formula set forth in “paragraph (1),” the statute incorporates that paragraph’s cross-reference to Section 1153(h)(2) in turn defines the set of covered petitions to include, “with re- spect to an alien child who is a derivative beneficiary under [], a petition filed for classification of the alien’s parent under And encompasses all five family-preference categories. See Second, promises relief to those who are found to be 21 “for the purpos[e] of the provision governing derivative beneficiar- ies. And that provision also unambiguously covers all five family-preference categories. See (a minor child 6 SCIALABBA v. CUELLAR DE OSORIO SOTOMAYOR, J., dissenting is “entitled to the same status” as a parent who is the principal beneficiary of a petition filed under ); (setting forth the five family-preference categories). In short, ’s eligibility clause answers the precise question in this case: Aged-out beneficiaries within all five categories are entitled to relief. “[T]he intent of Congress is clear,” so “that is the end of the matter.” 467 U.S., at II A Because it concedes that ’s eligibility clause unambiguously “encompasses every aged-out beneficiary of a family-preference petition,” ante, at 21, the plurality tries to fit this case into a special pocket of juris- prudence in which it says we must defer to an agency’s decision to ignore a clear statutory command due to a conflict between that command and another statutory provision. See ante, at 14, 21. Thus, unlike in the usual case, where ambiguity derives from the fact that the text does not speak with sufficient specificity to the question at issue, the plurality argues that this is a case in which ambiguity can only arise—if it is to arise at all—if Congress has spoken clearly on the issue in diametrically opposing ways.3 As the plurality frames it, ’s —————— 3 To understand the kind of conflict that can make deference appro- priate to an agency’s decision to override unambiguous statutory text, consider the provisions at issue in National Assn. of Home v. Defenders of Wildlife, One provision, of the Clean Water Act, 33 U.S. C. commanded, “without qualification, that the [Environmental Protection Agency] ‘shall ap- prove’ a transfer application” whenever nine exclusive criteria were A second provision, of the Endan- gered Species Act of 1973, 16 U.S. C. was “similarly imperative,” ordering “ ‘[e]ach Federal agency’ ” to ensure that its actions were “ ‘not likely to jeopardize’ ” an endangered species. Cite as: 573 U. S. (2014) 7 SOTOMAYOR, J., dissenting eligibility and relief clauses are “Janus-faced,” and that conflict “makes possible alternative reasonable construc- tions.” Ante, at 14. In rushing to find a conflict within the statute, the plurality neglects a fundamental tenet of statutory inter- pretation: We do not lightly presume that Congress has legislated in self-contradicting terms. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 180 (2012) (“The provisions of a text should be interpreted in a way that renders them compatible, not contradic- tory. [T]here can be no justification for needlessly ren- dering provisions in conflict if they can be interpreted harmoniously”). That is especially true where, as here, the conflict that Congress supposedly created is not be- tween two different statutes or even two separate provi- sions within a single statute, but between two clauses in the same sentence. See (“[I]t is invariably true that intelligent drafters do not contradict themselves”). Thus, time and again we have stressed our duty to “fit, if possi- ble, all parts [of a statute] into [a] harmonious whole.” ; see also (when two provisions “are capable of co-existence, it is the duty of the courts to regard each as effective”). In reviewing an agency’s construction of a statute, courts “must,” we have emphasized, “interpret the statute ‘as a coherent regulatory scheme’ ” rather than an internally inconsistent muddle, at war with itself and defective from —————— U. S., at 662. “[A]pplying [’s] language literally,” we observed, would contravene the “mandatory and exclusive list of [nine] criteria set forth in” because it would “engraf[t] a tenth criterion onto” the statute. at 662–663. The agency accordingly could not “simul- taneously obey” both commands: It could consider 9 criteria or 10, but not both. In that circumstance, we found it appropriate to defer to the agency’s choice as to “which command must give way.” 8 SCIALABBA v. CUELLAR DE OSORIO SOTOMAYOR, J., dissenting the day it was written. Brown & Williamson, 529 U.S., at 133. And in doing so, courts should “[e]mplo[y] traditional tools of statutory construction.” Each of these cautions springs from a common well: As judicious as it can be to defer to administrative agencies, our foremost duty is, and always has been, to give effect to the law as drafted by Congress. The plurality contends that deference is appropriate here because, in its view, 8 U.S. C. ’s two clauses are “self-contradictory.” Ante, at 33. But far from it being unworkable (or even difficult) for the agency to obey both clauses, traditional tools of statutory construc- tion reveal that clauses are entirely compatible. B The plurality argues that although ’s eligibil- ity clause clearly encompasses aged-out beneficiaries within all five preference categories, the relief clause implies a conflicting “limitation on the eligible class of recipients.” Ante, at 15. The plurality infers that limita- tion from two premises. First, it contends that no aged- out child may retain her priority date unless her petition is also eligible for automatic conversion. And second, it asserts that only aged-out F2A beneficiaries may receive automatic conversion. As a result, the plurality concludes, it was reasonable for the BIA to exclude aged-out children in the four other categories from receiving both automatic conversion and priority date retention, thereby rendering ’s eligibility clause defunct. The plurality’s conclusion is wrong because its premises are wrong. For one, is naturally read to confer priority date retention as an independent form of relief to all aged-out children, regardless of whether automatic conversion is separately available. And even if that were wrong, the plurality’s supposition that only F2A benefi- ciaries can receive automatic conversion is incorrect on its Cite as: 573 U. S. (2014) 9 SOTOMAYOR, J., dissenting own terms. Because either of these interpretations would treat as a coherent whole, the BIA’s construc- tion was impermissible. 1 The most obvious flaw in the plurality’s analysis is its presumption that permits an aged-out child to retain her original priority date only if her petition can be automatically converted. That is incorrect for many reasons. When an immigrant is determined to have aged out of derivative beneficiary status, prescribes two forms of relief: “[T]he alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.” We have held that when a statute provides two forms of relief in this manner, joined by the conjunction “and,” the two remedies are “distinct.” United 241– 242 (1989). That understanding makes particular sense here, where Congress used the mandatory word “shall” twice, once before each form of relief. See Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, (1998) (“[T]he mandatory [term] ‘shall’ normally cre- ates an obligation impervious to judicial discretion”). Moreover, the two “shall” commands operate on different subjects, further reinforcing that they prescribe distinct remedies: An aged-out “alien’s petition shall automatically be converted,” but it is “the alien” herself who, in all events, “shall retain” her original priority date. (emphasis added). The plurality responds with a series of examples in which the word “and” is used to join two commands, one of which is—as the plurality asserts here—dependent on another. Ante, at 28, and n. 15. But as the plurality recognizes, ante, at 28, that is hardly the only way the 10 SCIALABBA v. CUELLAR DE OSORIO SOTOMAYOR, J., dissenting word can be used. For example: “If today’s baseball game is rained out, your ticket shall automatically be converted to a ticket for next Saturday’s game, and you shall retain your free souvenir from today’s game.” Or: “If you provide the DMV with proof of your new address, your voter regis- tration shall automatically be converted to the correct polling location, and you shall receive in the mail an up- dated driver’s license.” It is plain in both of these exam- ples that the two commands are distinct—the fan in the first example can keep her free souvenir even if she cannot attend next Saturday’s game; the new resident will receive an updated driver’s license even if she is ineligible to vote. What the plurality does not explain is why we should forgo the same understanding of ’s relief clause when that would treat the statute as a coherent whole (and when the plurality’s alternative interpretation would render the statute a walking self-contradiction within the span of a few words). With the text unavailing, the plurality turns to a policy argument. The plurality worries that if automatic conver- sion and priority date retention are independent benefits, aged-out beneficiaries will be able to “hold on to a priority date for years while waiting for a relative to file a new petition,” which might hamper U. S. Citizenship and Immigration Services (USCIS) operations. Ante, at 29–30. But the plurality’s fears of administrative inconvenience are belied by the fact that USCIS has administered prior- ity date retention in exactly this manner for years, with no apparent problems. Well before was enacted, a regulation provided aged-out F2A derivative beneficiar- ies the ability to retain their priority dates without also providing automatic conversion. See (a)(4) (permitting priority date retention after a “separate peti- tion” is filed); 41059 (1992) (adopting this provision). Indeed, the USCIS continues to instruct field officers that a “separate petition” must be filed in Cite as: 573 U. S. (2014) 11 SOTOMAYOR, J., dissenting order for such beneficiaries to “retain” their “original priority date[s].” Adjudicator’s Field Manual, ch. 21.2(c)(5), online at http://www.uscis.gov/iframe/ilink/docView/ AFM/HTML/AFM/0-0-0-1.html (all Internet materials as visited June 5, 2014, and available in Clerk of Court’s case file). The notion that it is somehow impossible for an immigrant to retain her priority date contingent upon the filing of a separate petition is therefore contradicted by years of agency experience.4 —————— 4 The plurality does not dispute that USCIS has administered priority date retention as a form of relief independent from automatic conver- sion for years. Ante, at 30, n. 16. It nonetheless argues that the same approach is impermissible here for the counterintuitive reason that a pre-existing regulation used express language limiting priority date retention to derivative beneficiaries of F2A petitions alone. See ante, at 30, n. 16 (noting that (a)(4) permitted an aged-out benefi- ciary to retain her priority date “ ‘if the subsequent petition is filed by the same petitioner’ ”). Congress included no such language to limit the scope of priority date retention in 8 U.S. C. however, which just reinforces what the eligibility clause already makes clear: Priority date retention is independently available for aged-out de- rivative beneficiaries of all family-preference petitions, not just F2A petitions. The plurality also fails to account for the numerous other contexts in which USCIS has administered priority date retention as a benefit distinct from automatic conversion. See, e.g., (providing priority date retention to unmarried adult children of LPRs whose parents become naturalized “[r]egardless of whether a petition is converted”); (e) (“A petition approved on behalf of an alien under [the employment-based immigration provisions of accords the alien the priority date of the approved petition for any subsequently filed [employment] petition”); (a “physician beneficiary” who finds a “new employer [who] desir[es] to petition [USCIS] on the physician’s behalf” must submit a new petition, but “will retain the priority date from the initial” petition). Finally, the plurality suggests that priority date retention can operate independently of automatic conversion only if the date to be retained is attached to a valid petition. Ante, at 30, and n. 16. But that cannot be squared with USCIS’s longstanding practice of allowing F2A beneficiaries to retain the priority dates from their no-longer valid petitions upon the filing of a new petition. 12 SCIALABBA v. CUELLAR DE OSORIO SOTOMAYOR, J., dissenting In the end, the plurality suggests that we should defer to the BIA’s all-or-nothing approach because “context compels” it. Ante, at 28. Yet fatally absent from the plu- rality’s discussion of context is any mention of the first clause of the very same provision, which, as the plurality admits, unambiguously confers relief upon all five catego- ries of aged-out children. That clause is dispositive, be- cause—assuming that F2A beneficiaries alone can receive automatic conversion—a reading that treats automatic conversion and priority date retention as independent benefits is the only one that would “produc[e] a substan- tive effect that is compatible with the rest of the law.” United Sav. Assn. of ; see also Home U.S., (“ ‘It is a “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme” ’ ”). 2 Even if it were somehow impossible for an aged-out child to retain her priority date independently of auto- matic conversion, the plurality is wrong to view automatic conversion as a benefit that F2A beneficiaries alone may enjoy. Section 1153(h)(3) provides that if an aged-out child qualifies for relief under the statute’s eligibility clause, “the alien’s petition shall automatically be converted to the appropriate category.” Whether an aged-out benefi- ciary in a given preference category may enjoy this relief turns on how one understands the words “automatically” and “converted.” Because the statute does not define the terms, we apply their ordinary meaning. See Burrage v. United States, 571 U. S. (2014) (slip op., at 6). The ordinary meaning of “automatic” is “ ‘having the capability of starting, operating, moving, etc., inde- Cite as: 573 U. S. (2014) 13 SOTOMAYOR, J., dissenting pendently’ ” based upon some predetermined predicate event, with no “additional decisions, contingencies, or delays.” Ante, at 15 (quoting Random House Webster’s Unabridged Dictionary 140 (2d ed. 2001)). The ordinary meaning of “convert” is “to change (something) into a different form.” Here, the statute specifies the form into which an aged-out child’s petition shall be changed: another petition in the “appropriate category.” Tying the terms together, then, “automatic conversion” means changing an old petition into a new petition in an appropriate category upon the occurrence of some predicate event, without a further decision or contingency. All aged-out beneficiaries can have their petitions auto- matically converted under this definition. Perhaps most sensibly, all five categories of petitions may be converted to an appropriate category, without any further decision or contingency, upon a logical predicate event: when USCIS receives confirmation that an appropriate category exists. To see how this would work, recall the case of Norma Uy, and her daughter, Ruth. Norma was the principal benefi- ciary of an F4 petition filed by her U. S. citizen sister; Ruth was a derivative beneficiary of the same petition. Because Ruth had aged out of derivative beneficiary sta- tus prior to Norma’s reaching the front of the visa line, Norma immigrated to the United States without Ruth. Once Norma became an LPR, however, she also became eligible to file a new petition on Ruth’s behalf under the F2B category (unmarried adult children of LPRs), (2)(B). Thus, once Norma provides confirmation of that eligibility to sponsor Ruth (i.e., that she is an LPR, that Ruth is her daughter, and that she has not committed disqualifying criminal conduct, see ante, at 4), Ruth’s original F4 petition can automatically be converted to an 14 SCIALABBA v. CUELLAR DE OSORIO SOTOMAYOR, J., dissenting F2B petition, with no additional decision or contingency.5 Indeed, this is how USCIS already applies automatic conversion in other contexts. For example, when an LPR has filed an F2A petition on behalf of a spouse or child, and the LPR subsequently becomes a U. S. citizen, a pro- vision entitled “[a]utomatic conversion of preference classi- fication,” (i), permits the F2A petition to be automatically converted to an “immediate relative” peti- tion, See ante, at 16. Significantly, the predi- cate event that triggers this conversion is the agency’s receipt of proof that the petition’s sponsor has become a U. S. citizen—proof, in other words, that there is an ap- propriate category into which the petition can be converted.6 Section 1153(h)(3)’s automatic conversion remedy can sensibly be administered in the same way. The plurality’s contrary conclusion that automatic conversion is impossible for all but one category of family- preference petitions hinges on three basic misunderstand- —————— 5 Of course, just like any other beneficiary of a family visa petition, one whose petition has been automatically converted must still satisfy the requirements for actually obtaining a visa. See ante, at 5. For example, all visa applicants must attach an “affidavit of support” from their sponsors. 8 U.S. C. As is true for any other beneficiary, nothing stops a sponsor from declining to swear their support for the beneficiary of an automatically converted petition after a visa has become available. Converting petitions upon proof of an appropriate category therefore produces no uncertainties or contingen- cies that do not already exist for all family visa applicants to begin with. 6 See Dept. of State, If You Were an LPR and Are Now a U. S. Citizen: Upgrading a Petition, online at http://travel.state.gov/visa/immigrants/ types/types_2991.html#5. The regulation cited by the plurality, 8 CFR is not to the contrary; it merely establishes that when an automatic conversion occurs, it shall be treated as “[e]ffective upon the date of naturalization,” As the State Department’s instruc- tions make clear, the conversion itself takes place after the new citizen “send[s] proof of [her] U. S. hip to the National Visa Center.” Dept. of State, If You Were an LPR and Are Now a U. S. Citizen: Upgrading a Petition. Cite as: 573 U. S. (2014) 15 SOTOMAYOR, J., dissenting ings. First, the plurality contends that automatic conver- sion is triggered not by confirmation of the existence of an appropriate category, but rather by a different predicate event: the moment when “ ‘an immigrant visa number bec[omes] available for the alien’s parent.’ ” Ante, at 19. This is a curious argument, not least because nothing in suggests it. That provision simply makes automatic conversion available “[i]f the age of an alien is determined” to be “be 21 years of age or older” for pur- poses of Section 1153(h)(3) thus states the condition that an immigrant must satisfy to be eligible for automatic conversion, but it nowhere commands when the conversion should occur. There is no reason why conver- sion cannot occur at the logical point just described: the moment when USCIS receives proof that an appropriate category exists. The plurality acknowledges that “does not explicitly identify th[e] point in time” at which a “petition is to be ‘converted.’ ” Ante, at 18. It nevertheless suggests that the date when a conversion occurs “is best viewed” as the date when a visa became available for the aged-out child’s parent. Ante, at 19. But Congress could not have intended conversion to occur at that point for a glaring reason: The date on which a visa becomes available for an aged-out child’s parent occurs before the point at which the child is determined to have aged-out under — the very requirement prescribes for the aged- out child to be eligible for automatic conversion in the first place. As the plurality explains, ante, at 5–6, such age determinations occur when an immigration official re- views the child’s derivative visa application, which invari- ably happens after a visa became available for the child’s parent as the principal beneficiary. At best, then, the plurality’s interpretation requires USCIS to convert peti- tions at a time when it does not know which petitions are eligible for conversion; at worst, it requires the automatic 16 SCIALABBA v. CUELLAR DE OSORIO SOTOMAYOR, J., dissenting conversion of petitions benefiting immigrants who will never even qualify for such relief (i.e., aged-out immi- grants who, for any number of reasons, never file a visa application and so are never determined by officials to be older than 21). Faced with this fact, the plurality falls back to the posi- tion that automatic conversion must merely be viewed as having occurred “as of th[e] date” when a parent’s visa becomes available, although the actual “assess[ment]” of the conversion will necessarily occur at some future point in time. Ante, at 24, n. 13. That approach, however, introduces precisely the kind of “additional decisions, contingencies, and delays” that the plurality regards as inconsistent with the ordinary meaning of “automatic,” ante, at 15. For even under the plurality’s view, automatic conversion cannot actually be “assesse[d]” until and unless the aged-out child decides to apply for a visa and officials assessing the child’s application deem her to have aged out (events which may themselves be contingent on the child’s parent first filing her own successful visa application, see ante, at 6). The far simpler approach is for conversion to occur automatically upon the most logical moment sug- gested by the statute: the moment when USCIS confirms that an “appropriate category” exists, Indeed, the plurality fails to explain why this cannot be the proper predicate; it simply dismisses such an approach as sup- ported “only” by “a single-minded resolve to grant relief to every possible aged-out beneficiary.” Ante, at 25, n. 13. But that criticism is revealing: The “single-minded resolve” the plurality maligns is Congress’ own, for it is Congress that expressly provided, in the eligibility clause, for aged-out beneficiaries in all five categories to be granted relief. The plurality’s second argument is a corollary of its first. If automatic conversion must occur when a visa first becomes available for a parent, the plurality frets, that Cite as: 573 U. S. (2014) 17 SOTOMAYOR, J., dissenting will mean an aged-out child will have her petition auto- matically converted before immigration officials can ascer- tain whether her parent is even qualified to sponsor her. See ante, at 17–18. True enough, but that only confirms that it makes no sense to force USCIS to convert petitions so prematurely. The plurality’s fears can all be averted by having automatic conversion occur, as with petitions sponsored by LPRs who later become U. S. at 13–15, when USCIS receives confirmation that conver- sion is appropriate.7 The plurality’s final argument is that something about the term “conversion” precludes relief for all but the aged- out derivative beneficiaries of F2A petitions. The plurality accepts that “conversion” will always require changing some aspects of a petition, including its preference category (e.g., from F2A to F2B) and the identity of its principal beneficiary (e.g., from an aged-out child’s parent to the —————— 7 The plurality is unsatisfied with this approach to automatic conver- sion on the theory that, in order to eliminate all additional “decisions, contingencies, or delays” in the process, this solution postpones the moment of “conversion” until the necessary contingencies are Yet the plurality’s approach does the same thing, because even on its account, some “decisions, contingencies, or delays” must occur before conversion can actually be assessed by immigration officials (i.e., a parent’s visa must become available, the child must apply for a visa, and immigration officials must deem her to have aged out, see at 16). So the only question is whether the “conversion” should be consid- ered to occur after all “decisions, contingencies, or delays” are in the past such that there is an appropriate category for conversion, or after only some. The former understanding would allow the unambiguous language of the eligibility clause to be carried into effect; the latter would preclude relief for four categories of derivative beneficiaries. In support of its restrictive interpretation, the plurality offers only the argument that converting a petition upon proof of an appropriate category would require the “filing of a new document. that shows the parent’s eligibility to sponsor her aged-out [child].” Ante, at 26, n. 14. The fact that a statute may require an agency to process a form is not a reason to disregard a coherent reading of a statute in favor of a self- contradictory one. 18 SCIALABBA v. CUELLAR DE OSORIO SOTOMAYOR, J., dissenting child). But the plurality asserts that a related kind of change is entirely off the table: a change to the identity of the petition’s sponsor. Ante, at 15. If a converted petition requires a different sponsor than the original petition, the plurality suggests, then it cannot be “converted” at all. The plurality points to nothing in the plain meaning of “conversion” that supports this distinction. It instead argues that a “conversion” cannot entail a change to the identity of a petition’s sponsor because that is “the exclu- sive way immigration law used the term when Congress enacted the CSPA.” Ante, at 16. But immigration law has long allowed petitions to be converted from one category to another in contexts where doing so requires changing the sponsor’s identity. In 2006, for example, the Secretary of Homeland Security promulgated a regulatory provision entitled “automatic conversion of preference classifica- tion,” (i)(1)(iv), which allows the automatic conversion of a petition filed by a U. S. citizen on behalf of her spouse to a widower petition if the citizen dies before the petition is approved. That conversion requires chang- ing the sponsor from the citizen to the widower himself. The fact that the agency used the word “conversion” to refer to a process in which the petition’s sponsor was changed, just a few years after 8 U.S. C. was enacted, strongly suggests that the term did not have the exclusive meaning that the plurality suggests. Similarly, a provision enacted two years before see Victims of Trafficking and Violence Pro- tection Act of 2000, provides that a peti- tion filed by a battered spouse on behalf of her child “shall be considered” a self-petition filed by the child herself if the child ages out—a conversion that obviously requires changing the identity of the sponsor from the battered spouse to the aged-out child. And confirms that such “self-petitioners” are entitled to ’s automatic conversion remedy. The plurality never ex- Cite as: 573 U. S. (2014) 19 SOTOMAYOR, J., dissenting plains how it can be mandatory to “convert” the identity of the sponsors in these contexts yet impermissible to “con- vert” the sponsors of the petitions at issue here—an un- derstanding that is especially implausible in light of Con- gress’ command that such petitions “shall automatically be converted to the appropriate category.”8 III The concurrence reaches the same result as the plural- ity does, but for a different reason. It begins by recognizing that ’s eligibility clause “states a condition” that is satisfied by aged-out “beneficiaries from any pref- erence category.” Ante, at 2 (ROBERTS, C. J., concurring in judgment). The concurrence thus acknowledges that the eligibility clause encompasses aged-out beneficiaries of family-preference petitions in the F1, F2A, F2B, F3, and F4 categories. The concurrence nonetheless concludes that the BIA was free to exclude F1, F2B, F3, and F4 beneficiaries from —————— 8 Moreover, had Congress actually intended to permit relief only where a new petition has the same sponsor as the original petition, it had a ready model in the language of a pre-existing regulation. See 8 CFR (conferring priority date retention on a derivative beneficiary only “if the subsequent petition is filed by the same peti- tioner”). If it had wanted to limit to just the beneficiaries preferred by the BIA, “Congress could easily have said so.” Kucana v. Holder, The plurality’s argument that a “conversion” cannot entail a change to a petition’s sponsor ultimately boils down to this: A “conversion” cannot include “any substantive alteration” to a petition, ante, at 15, except when it can. For example, a “conversion” can (indeed, must) entail changing a petition’s family-preference category and changing the petition’s principal beneficiary (from the aged-out child’s parent to the child herself). And the plurality concedes that in other contexts, conversion must entail changing the identity of a petition’s sponsor from the beneficiary’s qualifying relative to the beneficiary himself. Ante, at 16–17, n. 10. The plurality does not explain why the word “conversion” can encompass all of these other substantive alterations, but not a change to the identity of a petition’s sponsor in just this case. 20 SCIALABBA v. CUELLAR DE OSORIO SOTOMAYOR, J., dissenting the clear scope of the eligibility clause because of a per- ceived ambiguity as to which beneficiaries can receive “automatic conversion.” See ante, at 4 (“Congress did not speak clearly to which petitions can ‘automatically be converted’ ”). In other words, the concurrence concludes that it was reasonable for the agency to ignore the clear text of the eligibility clause because the phrase “automatic conversion” might be read in a manner that would benefit F2A beneficiaries alone. This is an unusual way to interpret a statute. The concurrence identifies no case in which we have deferred to an agency’s decision to use ambiguity in one portion of a statute as a license to ignore another statutory provision that is perfectly clear. To the contrary, “[a] provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” United Sav. Assn. of 484 U.S., at The concurrence justifies its conclusion only by treating the eligibility clause as a nullity. The concurrence is quite candid about its approach, arguing that ’s relief clause is its “only operative provision” and that the eligi- bility clause does not “grant anything to anyone.” Ante, at 3. Yet “[i]t is our duty ‘to give effect, if possible, to every clause and word of a statute.’ ” United And there is an easy way to give meaning to the eligibility clause: The clause identi- fies who is entitled to the benefits specified in the ensuing relief clause. The concurrence relies ultimately on an irrelevant hypothetical: “If a student is determined to be enrolled at an accredited university, the student’s cost of off-campus housing shall be deductible on her tax return.” Ante, at 3. In this example, the concurrence points out, it is “appar- ent. that an enrolled student who lives on campus is not Cite as: 573 U. S. (2014) 21 SOTOMAYOR, J., dissenting entitled to the deduction, even though the student falls within the conditional first clause.” That is correct, but it says nothing about this case. For in the hypothet- ical, it is plain that the promised relief (a tax deduction for off-campus housing) cannot apply to the persons at issue (students who live on campus). Here, however, the relief promised in (priority date retention and auto- matic conversion) can be given to persons specified in the initial eligibility clause (aged-out children in all five family-preference categories). See at 9–19. And once one recognizes that aged-out children in each cate- gory unambiguously covered by the eligibility clause can receive relief, the BIA’s view that no children in four of those categories can ever receive any relief cannot be reasonable.9 * * * Congress faced a difficult choice when it enacted Given the “zero-sum world of allocating a limited number of visas,” ante, at 33, Congress could have —————— 9 More fundamentally, the concurrence’s hypothetical is irrelevant because it altogether ignores a critical feature of the statute before us: express enumeration of the covered petitions to include petitions filed within the F1, F2A, F2B, F3, and F4 preference catego- ries. See at 5–6. A proper analogy would therefore be a provi- sion that says the following: “If a student is determined to be enrolled at an accredited junior college, community college, or 4-year college, the student’s room and board shall be tax-deductible and the student shall receive financial aid.” Is there any permissible reading of this provision under which, although expressly covered in the eligibility clause, all junior and community college students are categorically forbidden to receive both the tax deduction and financial aid? Of course not. And that would be true even if the term “room and board” were ambiguous and thus open to an interpretation under which only 4-year students could receive the tax deduction. Likewise here, where F1, F2B, F3, and F4 derivative beneficiaries may not be categorically excluded from relief because they are indisputably covered by ’s eligibility clause and able to receive the relief described in the relief clause. 22 SCIALABBA v. CUELLAR DE OSORIO SOTOMAYOR, J., dissenting required aged-out children like Ruth Uy to lose their place in line and wait many additional years (or even decades) before being reunited with their parents, or it could have enabled such immigrants to retain their place in line— albeit at the cost of extending the wait for other immi- grants by some shorter amount. Whatever one might think of the policy arguments on each side, however, this much is clear: Congress made a choice. The plurality’s contrary view—that Congress actually delegated the choice to the BIA in a statute that unambiguously encom- passes aged-out children in all five preference categories and commands that they “shall retain the[ir] original priority date[s],” —is untenable. In the end, then, this case should have been resolved under a commonsense approach to statutory interpreta- tion: Using traditional tools of statutory construction, agencies and courts should try to give effect to a statute’s clear text before concluding that Congress has legislated in conflicting and unintelligible terms. Here, there are straightforward interpretations of that allow it to function as a coherent whole. Because the BIA and the Court ignore these interpretations and advance a con- struction that contravenes the language Congress wrote, I respectfully dissent. |
Justice Rehnquist | majority | false | Aldinger v. Howard | 1976-06-24T00:00:00 | null | https://www.courtlistener.com/opinion/109503/aldinger-v-howard/ | https://www.courtlistener.com/api/rest/v3/clusters/109503/ | 1,976 | 1975-144 | 1 | 6 | 3 | This case presents the "subtle and complex question with far-reaching implications," alluded to but not answered in Moor v. County of Alameda, 411 U.S. 693, 715 (1973), and Philbrook v. Glodgett, 421 U.S. 707, 720 (1975): whether the doctrine of pendent jurisdiction extends to confer jurisdiction over a party as to whom *3 no independent basis of federal jurisdiction exists. In this action, where jurisdiction over the main, federal claim against various officials of Spokane County, Wash., was grounded in 28 U.S. C. § 1343 (3), the Court of Appeals for the Ninth Circuit held that pendent jurisdiction was not available to adjudicate petitioner's state-law claims against Spokane County, over which party federal jurisdiction was otherwise nonexistent. While noting that its previous holdings to this effect were left undisturbed by Moor, which arose from that Circuit, the Court of Appeals was "not unaware of the widespread rejection" of its position in almost all other Federal Circuits. 513 F.2d 1257, 1261 (1975). We granted certiorari to resolve the conflict on this important question. 423 U.S. 823 (1975). We affirm.
I
This case arises at the pleading stage, and the allegations in petitioner's complaint are straightforward. Petitioner was hired in 1971 by respondent Howard, the Spokane County treasurer, for clerical work in that office. Two months later Howard informed petitioner by letter that although her job performance was "excellent," she would be dismissed, effective two weeks hence, because she was allegedly "living with [her] boy friend." Howard's action, petitioner alleged, was taken pursuant to a state statute which provides that the appointing county officer "may revoke each appointment at pleasure."[1] Though a hearing was requested, none was held before or after the effective date of the discharge.
Petitioner's action in the United States District Court for the Eastern District of Washington, as embodied in her second amended complaint, claimed principally under *4 the Civil Rights Act of 1871, 42 U.S. C. § 1983,[2] that the discharge violated her substantive constitutional rights under the First, Ninth, and Fourteenth Amendments, and was procedurally defective under the latter's Due Process Clause. An injunction restraining the dismissal and damages for salary loss were sought against Howard, his wife, the named county commissioners, and the county. Jurisdiction over the federal claim was asserted under 28 U.S. C. § 1343 (3),[3] and pendent jurisdiction was alleged to lie over the "state law claims against the parties." As to the county, the state-law *5 claim was said to rest on state statutes waiving the county's sovereign immunity and providing for vicarious liability arising out of tortious conduct of its officials. 513 F.2d, at 1358. The District Court dismissed the action as to the county on the ground that since it was not suable as a "person" under § 1983, there was no independent basis of jurisdiction over the county, and thus "this court [has no] power to exercise pendent jurisdiction over the claims against Spokane County." From this final judgment, see Fed. Rule Civ. Proc. 54 (b), petitioner appealed.
The Court of Appeals first rejected petitioner's claim that her § 1983 action against the county fell within the District Court's § 1343 (3) jurisdiction, as obviously foreclosed by this Court's decisions in Moor, supra, and City of Kenosha v. Bruno, 412 U.S. 507 (1973). Turning to petitioner's pendent-jurisdiction argument, the Court of Appeals noted, 513 F.2d, at 1260, that the District Court had made no alternative ruling on the "suitability of this case for the discretionary exercise of pendent jurisdiction" under the second part of the rule enunciated in Mine Workers v. Gibbs, 383 U.S. 715, 726-727 (1966). But since this Court in Moor had expressly left undisturbed the Ninth Circuit's refusal to apply pendent jurisdiction over a nonfederal party, the instant panel felt free to apply that rule as set out in Hymer v. Chai, 407 F.2d 136 (CA9 1969), and Moor v. Madigan, 458 F.2d 1217 (CA9 1972), aff'd in part, rev'd in part, 411 U.S. 693 (1973). This kind of case, the Court of Appeals reasoned, presented the "weakest rationale" for extension of Gibbs to pendent parties: (1) The state claims are pressed against a party who would otherwise not be in federal court;[4] (2) diversity cases generally present more *6 attractive opportunities for exercise of pendent-party jurisdiction, since all claims therein by definition arise from state law; (3) federal courts should be wary of extending court-created doctrines of jurisdiction to reach parties who are expressly excluded by Congress from liability, and hence federal jurisdiction, in the federal statute sought to be applied to the defendant in the main claim; (4) pendent state-law claims arising in a civil rights context will "almost inevitably" involve the federal court in difficult and unsettled questions of state law, with the accompanying potential for jury confusion. 513 F.2d, at 1261-1262.
II
The question whether "pendent" federal jurisdiction encompasses not merely the litigation of additional claims between parties with respect to whom there is federal jurisdiction, but also the joining of additional parties with respect to whom there is no independent basis of federal jurisdiction, has been much litigated in other federal courts[5] and much discussed by commentators[6] since this Court's decision in Gibbs. Gibbs, in turn, is the most recent in a long line of our cases dealing with the relationship between the judicial power of the United States and the actual contours of the cases and controversies to which that power is extended by Art. III.
In Osborn v. Bank of the United States, 9 Wheat. 738 *7 (1824), Mr. Chief Justice Marshall in his opinion for the Court addressed the argument that the presence in a federal lawsuit of questions which were not dependent on the construction of a law of the United States prevented the federal court from exercising Art. III jurisdiction, even in a case in which the plaintiff had been authorized by Congress to sue in federal court. Noting that "[t]here is scarcely any case, every part of which depends" upon federal law, id., at 820, the Chief Justice rejected the contention:
"If it be a sufficient foundation for jurisdiction, that the title or right set up by the party, may be defeated by one construction of the constitution or law of the United States, and sustained by the opposite construction, provided the facts necessary to support the action be made out, then all the other questions must be decided as incidental to this, which gives that jurisdiction. Those other questions cannot arrest the proceedings. . . .
"We think, then, that when a question to which the judicial power of the Union is extended by the constitution, forms an ingredient of the original cause, it is in the power of congress to give the Circuit Courts jurisdiction of that cause, although other questions of fact or of law may be involved in it." Id., at 822-823.
This doctrine was later applied in Siler v. Louisville & Nashville R. Co., 213 U.S. 175 (1909), to hold that where federal jurisdiction is properly based on a colorable federal claim, the court has the "right to decide all the questions in the case, even though it decided the Federal questions adversely to the party raising them, or even if it omitted to decide them at all, but decided the case on local or state questions only." Id., at 191. In Moore v. N. Y. Cotton Exchange, 270 U.S. 593, 609-610 (1926), *8 the Court in similar fashion sustained jurisdiction over a defendant's compulsory counterclaim arising out of the same transaction upon which the plaintiff's federal antitrust claim was grounded, although the latter had been dismissed for failure to state a claim, and the former had no independent federal jurisdictional basis. A few years later, in Hurn v. Oursler, 289 U.S. 238 (1933), the Court drew upon the foregoing cases to establish federal jurisdiction to decide a state-law claim joined with a federal copyright infringement claim, where both were considered "two distinct grounds in support of a single cause of action," although the federal ground had proved unsuccessful. Id., at 246.
In Gibbs, the respondent brought an action in federal court against petitioner UMW, asserting parallel claims a federal statutory claim and a claim under the common law of Tennesseearising out of alleged concerted union efforts to deprive him of contractual and employment relationships with the coal mine's owners. Though the federal claim was ultimately dismissed after trial, and though diversity was absent, the lower courts sustained jurisdiction over the state-law claim, and affirmed the damages award based thereon. Before reaching the merits (on which the lower courts were reversed), this Court addressed the argument that under the rule of pendent jurisdiction as set out in Hurn v. Oursler, supra, at 245-246, Gibbs had merely stated "two separate and distinct causes of action" as opposed to "two distinct grounds in support of a single cause of action," in which former case the federal court lacked the power to "retain and dispose" of the "non-federal cause of action." The Court stated that since the Hurn test was formulated before the unification of law and equity by the Federal Rules of Civil Procedure, it was therefore unnecessarily tied to the outmoded concept of a "cause of *9 action" developed under code pleading rules. Recognizing that the Federal Rules themselves cannot expand federal-court jurisdiction, the Court nevertheless found in them a sufficient basis to go beyond Hurn's "unnecessarily grudging" approach to parallel claims, and to adopt a more flexible treatment within the contours of Art. III, § 2. Thus, in a federal-question case, where the federal claim is of sufficient substance, and the factual relationship between "that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional `case,' " pendent jurisdiction extends to the state claim. 383 U.S., at 725. The Court, in the second aspect of the Gibbs formulation, went on to enumerate the various factors bearing on a district court's discretionary decision whether the power should be exercised in a given parallel-claims case, emphasizing that "pendent jurisdiction is a doctrine of discretion, not of plaintiff's right." Id., at 726.
These cases, from Osborn to Gibbs, show that in treating litigation where nonfederal questions or claims were bound up with the federal claim upon which the parties were already in federal court, this Court has found nothing in Art. III's grant of judicial power which prevented adjudication of the nonfederal portions of the parties' dispute. None of them, however, adverted to the separate question, involved in the instant case, of whether a nonfederal claim could in turn be the basis for joining a party over whom no independent federal jurisdiction exists, simply because that claim could be derived from the "common nucleus of operative fact" giving rise to the dispute between the parties to the federal claim.
But while none of the foregoing line of cases discussed the joining of additional parties, other decisions of this Court have developed a doctrine of "ancillary jurisdiction," *10 and it is in part upon this developmentand its relationship to Gibbsthat petitioner relies to support "pendent party" jurisdiction here. Under this doctrine, the Court has identified certain considerations which justified the joining of parties with respect to whom there was no independent basis of federal jurisdiction. In Freeman v. Howe, 24 How. 450 (1861), the Court held that the state court had no jurisdiction over a replevin action brought by creditor claimants to property that had already been attached by the federal marshal in a federal diversity action. The claimants argued that a want of state-court jurisdiction would leave them without a remedy, since diversity between them and the marshal was lacking. This Court stated that an equitable action in federal court by those claimants, seeking to prevent injustice in the diversity suit, would not have been "an original suit, but ancillary and dependent, supplementary merely to the original suit," and thus maintainable irrespective of diversity of citizenship. Id., at 460. A similar approach was taken in Stewart v. Dunham, 115 U.S. 61 (1885), where, after a creditors' suit to set aside an allegedly fraudulent conveyance was removed to federal court on grounds of diversity, other nondiverse creditors were permitted to intervene to assert an identical interest. Since it was merely a matter of form whether the latter appeared as parties or came in later under a final decree to prove their claims before a master, the federal court "could incidentally decree in favor of [the nondiverse] creditors[, and s]uch a proceeding would be ancillary to the jurisdiction acquired between the original parties . . . ." Id., at 64. Dunham was in turn held controlling in Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356 (1921). There, suing in diversity, out-of-state "Class A" members of an Indiana fraternal benefit society had sought a decree adjudicating their common interests in the control and disposition of *11 the society's funds. After successfully defending that action, the society brought a second suit in federal court seeking to protect that judgment as against an identical state-court action brought by members of "Class A" who were of Indiana citizenship. Since under Dunham "intervention of the Indiana citizens in the [original] suit would not have defeated the jurisdiction already acquired," 255 U.S., at 366, the earlier judgment was binding against them, and the federal court had ancillary jurisdiction over the society's suit to enjoin the later state action, irrespective of diversity.
The doctrine of ancillary jurisdiction developed in the foregoing cases is bottomed on the notion that since federal jurisdiction in the principal suit effectively controls the property or fund under dispute, other claimants thereto should be allowed to intervene in order to protect their interest, without regard to jurisdiction.[7] As this Court stated in Fulton Bank v. Hozier, 267 U.S. 276, 280 (1925):
"The general rule is that when a federal court has properly acquired jurisdiction over a cause it may entertain, by intervention, dependent or ancillary controversies; but no controversy can be regarded as dependent or ancillary unless it has direct relation *12 to property or assets actually or constructively drawn into the court's possession or control by the principal suit."
The decisional bridge between these two relatively discrete lines of cases appears to be this Court's decision in Moore. Since the defendant's nonfederal counterclaim in Moore arose out of the same transaction giving rise to the antitrust dispute between the parties, and federal jurisdiction was sustained over the former, the Court in Hurn, though faced with a plaintiff's assertion of pendent jurisdiction over an additional nonfederal claim, thought the two cases, "in principle, cannot be distinguished." Hurn, 289 U. S., at 242. It was Hurn's "unnecessarily grudging" test of pendent jurisdiction, of course, which the Court expanded in Gibbs. On the other hand, because Moore was a suit in equity, the jurisdiction sustained there has been rationalized as falling under the umbrella of ancillary jurisdiction,[8] though Moore neither used that term nor cited to Fulton Bank, supra. Petitioner thus suggests that since Moore, read as an "ancillary" case, adopted a "transactional" test of jurisdiction quite similar to that set out in Gibbs, there is presently no "principled" distinction between the two doctrines. Since under the Federal Rules "joinder of claims, parties and remedies is strongly encouraged," Gibbs, 383 U. S., at 724, her use of the Rules here is as a matter of jurisdictional power assertedly limited only by whether the claim against the county "derive[s] from a common nucleus of operative fact." Id., at 725. Hence, petitioner concludes, based on Gibbs' treatment of pendent claims, and the use of ancillary jurisdiction to *13 bring in additional parties, that her nonfederal claim against a nonfederal defendant falls within pendent jurisdiction since it satisfies Gibbs' test on its face.
For purposes of addressing the jurisdictional question in this case, however, we think it quite unnecessary to formulate any general, all-encompassing jurisdictional rule. Given the complexities of the many manifestations of federal jurisdiction, together with the countless factual permutations possible under the Federal Rules, there is little profit in attempting to decide, for example, whether there are any "principled" differences between pendent and ancillary jurisdiction; or, if there are, what effect Gibbs had on such differences. Since it is upon Gibbs' language that the lower federal courts have relied in extending the kind of pendent-party jurisdiction urged by petitioner here, we think the better approach is to determine what Gibbs did and did not decide, and to identify what we deem are important differences between the jurisdiction sustained in Gibbs and that asserted here.
Gibbs and its lineal ancestor, Osborn, were couched in terms of Art. III's grant of judicial power in "Cases . . . arising under this Constitution, the Laws of the United States, and [its] Treaties," since they (and implicitly the cases which linked them) represented inquiries into the scope of Art. III jurisdiction in litigation where the "common nucleus of operative fact" gave rise to non-federal questions or claims between the parties. None of them posed the need for a further inquiry into the underlying statutory grant of federal jurisdiction or a flexible analysis of concepts such as "question," "claim," and "cause of action," because Congress had not addressed itself by statute to this matter. In short, Congress had said nothing about the scope of the word "Cases" in Art. III which would offer guidance on the *14 kind of elusive question addressed in Osborn and Gibbs: whether and to what extent jurisdiction extended to a parallel state claim against the existing federal defendant.
Thus, it was perfectly consistent with Art. III, and the particular grant of subject-matter jurisdiction upon which the federal claim against the defendant in those cases was grounded, to require that defendant to answer as well to a second claim deriving from the "common nucleus" of fact, though it be of state-law vintage. This would not be an "unfair" use of federal power by the suing party, he already having placed the defendant properly in federal court for a substantial federal cause of action. Judicial economy would also be served because the plaintiff's claims were "such that he would ordinarily be expected to try them all in one judicial proceeding . . . ." Gibbs, 383 U. S., at 725.
The situation with respect to the joining of a new party, however, strikes us as being both factually and legally different from the situation facing the Court in Gibbs and its predecessors. From a purely factual point of view, it is one thing to authorize two parties, already present in federal court by virtue of a case over which the court has jurisdiction, to litigate in addition to their federal claim a state-law claim over which there is no independent basis of federal jurisdiction. But it is quite another thing to permit a plaintiff, who has asserted a claim against one defendant with respect to which there is federal jurisdiction, to join an entirely different defendant on the basis of a state-law claim over which there is no independent basis of federal jurisdiction, simply because his claim against the first defendant and his claim against the second defendant "derive from a common nucleus of operative fact." Ibid. True, the same considerations of judicial economy would be served *15 insofar as plaintiff's claims "are such that he would ordinarily be expected to try them all in one judicial proceeding . . . ." Ibid. But the addition of a completely new party would run counter to the well-established principle that federal courts, as opposed to state trial courts of general jurisdiction, are courts of limited jurisdiction marked out by Congress. We think there is much sense in the observation of Judge Sobeloff, writing for the Court of Appeals in Kenrose Mfg. Co. v. Fred Whitaker Co., 512 F.2d 890, 894 (CA4 1972):
"The value of efficiency in the disposition of law-suits by avoiding multiplicity may be readily conceded, but that is not the only consideration a federal court should take into account in assessing the presence or absence of jurisdiction. Especially is this true where, as here, the efficiency plaintiff seeks so avidly is available without question in the state courts."
There is also a significant legal difference. In Osborn and Gibbs Congress was silent on the extent to which the defendant, already properly in federal court under a statute, might be called upon to answer nonfederal questions or claims; the way was thus left open for the Court to fashion its own rules under the general language of Art. III. But the extension of Gibbs to this kind of "pendent party" jurisdictionbringing in an additional defendant at the behest of the plaintiffpresents rather different statutory jurisdictional considerations. Petitioner's contention that she should be entitled to sue Spokane County as a new third party, and then to try a wholly state-law claim against the county, all of which would be "pendent" to her federal claim against respondent county treasurer, must be decided, not in the context of congressional silence or tacit encouragement, but in *16 quite the opposite context. The question here, which it was not necessary to address in Gibbs or Osborn, is whether by virtue of the statutory grant of subject-matter jurisdiction, upon which petitioner's principal claim against the treasurer rests, Congress has addressed itself to the party as to whom jurisdiction pendent to the principal claim is sought. And it undoubtedly has done so.
III
Congress has in specific terms conferred Art. III jurisdiction on the district courts to decide actions brought to redress deprivations of civil rights. Under the opening language of § 1343,[9] those courts "shall have original jurisdiction of any civil action authorized by law to be commenced by any person . . ." (emphasis added). The civil rights action set out in § 1983[10] is, of course, included within the jurisdictional grant of subsection (3) of § 1343. Yet petitioner does not, and indeed could not, contest the fact that as to § 1983, counties are excluded from the "person[s]" answerable to the plaintiff "in an action at law [or] suit in equity" to redress the enumerated deprivations.[11] Petitioner must necessarily argue that in spite of the language emphasized above Congress left it open for the federal courts to fashion a jurisdictional doctrine under the general language of Art. III enabling them to circumvent this exclusion, as long as the civil rights action and the state-law claim arise from a "common nucleus of operative fact." But the question whether jurisdiction over the instant lawsuit extends not only to a related state-law claim, but to the defendant against whom that claim is made, turns initially, not on the general *17 contours of the language in Art. III, i. e., "Cases . . . arising under," but upon the deductions which may be drawn from congressional statutes as to whether Congress wanted to grant this sort of jurisdiction to federal courts. Parties such as counties, whom Congress excluded from liability in § 1983, and therefore by reference in the grant of jurisdiction under § 1343 (3), can argue with a great deal of force that the scope of that "civil action" over which the district courts have been given statutory jurisdiction should not be so broadly read as to bring them back within that power merely because the facts also give rise to an ordinary civil action against them under state law. In short, as against a plaintiff's claim of additional power over a "pendent party," the reach of the statute conferring jurisdiction should be construed in light of the scope of the cause of action as to which federal judicial power has been extended by Congress.
Resolution of a claim of pendent-party jurisdiction, therefore, calls for careful attention to the relevant statutory language. As we have indicated, we think a fair reading of the language used in § 1343, together with the scope of § 1983, requires a holding that the joinder of a municipal corporation, like the county here, for purposes of asserting a state-law claim not within federal diversity jurisdiction, is without the statutory jurisdiction of the district court.[12]
*18 There are, of course, many variations in the language which Congress has employed to confer jurisdiction upon the federal courts, and we decide here only the issue of so-called "pendent party" jurisdiction with respect to a claim brought under §§ 1343 (3) and 1983. Other statutory grants and other alignments of parties and claims might call for a different result. When the grant of jurisdiction to a federal court is exclusive, for example, as in the prosecution of tort claims against the United States under 28 U.S. C. § 1346, the argument of judicial economy and convenience can be coupled with the additional argument that only in a federal court may all of the claims be tried together.[13] As we indicated at the outset of this opinion, the question of pendent-party jurisdiction is "subtle and complex," and we believe that it would be as unwise as it would be unnecessary to lay down any sweeping pronouncement upon the existence or exercise of such jurisdiction. Two observations suffice for the disposition of the type of case before us. If the new party sought to be joined is not otherwise subject to federal jurisdiction, there is a more serious obstacle to the exercise of pendent jurisdiction than if parties already before the court are required to litigate a state-law claim. Before it can be concluded that such jurisdiction exists, a federal court must satisfy itself not only that Art. III permits it, but that Congress in the statutes conferring jurisdiction has not expressly or by implication negated its existence.
*19 We conclude that in this case Congress has by implication declined to extend federal jurisdiction over a party such as Spokane County. The judgment of the Court of Appeals for the Ninth Circuit is therefore
Affirmed.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR. | This case presents the "subtle and complex question with far-reaching implications," alluded to but not answered in and : whether the doctrine of pendent jurisdiction extends to confer jurisdiction over a party as to whom *3 no independent basis of federal jurisdiction exists. In this action, where jurisdiction over the main, federal claim against various officials of Spokane County, Wash., was grounded in 28 U.S. C. 1343 (3), the Court of Appeals for the Ninth Circuit held that pendent jurisdiction was not available to adjudicate petitioner's state-law claims against Spokane County, over which party federal jurisdiction was otherwise nonexistent. While noting that its previous holdings to this effect were left undisturbed by which arose from that Circuit, the Court of Appeals was "not unaware of the widespread rejection" of its position in almost all other Federal Circuits. We granted certiorari to resolve the conflict on this important question. We affirm. I This case arises at the pleading stage, and the allegations in petitioner's complaint are straightforward. Petitioner was hired in 1971 by respondent Howard, the Spokane County treasurer, for clerical work in that office. Two months later Howard informed petitioner by letter that although her job performance was "excellent," she would be dismissed, effective two weeks hence, because she was allegedly "living with [her] boy friend." Howard's action, petitioner alleged, was taken pursuant to a state statute which provides that the appointing county officer "may revoke each appointment at pleasure."[1] Though a hearing was requested, none was held before or after the effective date of the discharge. Petitioner's action in the United States District Court for the Eastern District of Washington, as embodied in her second amended complaint, claimed principally under *4 the Civil Rights Act of 1871, 42 U.S. C. 1983,[2] that the discharge violated her substantive constitutional rights under the First, Ninth, and Fourteenth Amendments, and was procedurally defective under the latter's Due Process Clause. An injunction restraining the dismissal and damages for salary loss were sought against Howard, his wife, the named county commissioners, and the county. Jurisdiction over the federal claim was asserted under 28 U.S. C. 1343 (3),[3] and pendent jurisdiction was alleged to lie over the "state law claims against the parties." As to the county, the state-law *5 claim was said to rest on state statutes waiving the county's sovereign immunity and providing for vicarious liability arising out of tortious conduct of its officials. The District Court dismissed the action as to the county on the ground that since it was not suable as a "person" under 1983, there was no independent basis of jurisdiction over the county, and thus "this court [has no] power to exercise pendent jurisdiction over the claims against Spokane County." From this final judgment, see Fed. Rule Civ. Proc. 54 (b), petitioner appealed. The Court of Appeals first rejected petitioner's claim that her 1983 action against the county fell within the District Court's 1343 (3) jurisdiction, as obviously foreclosed by this Court's decisions in and City of Turning to petitioner's pendent-jurisdiction argument, the Court of Appeals that the District Court had made no alternative ruling on the "suitability of this case for the discretionary exercise of pendent jurisdiction" under the second part of the rule enunciated in Mine 383 U.S. But since this Court in had expressly left undisturbed the Ninth Circuit's refusal to apply pendent jurisdiction over a nonfederal party, the instant panel felt free to apply that rule as set out in and v. Madigan, aff'd in part, rev'd in part, This kind of case, the Court of Appeals reasoned, presented the "weakest rationale" for extension of to pendent parties: (1) The state claims are pressed against a party who would otherwise not be in federal court;[4] (2) diversity cases generally present more *6 attractive opportunities for exercise of pendent-party jurisdiction, since all claims therein by definition arise from state law; (3) federal courts should be wary of extending court-created doctrines of jurisdiction to reach parties who are expressly excluded by Congress from liability, and hence federal jurisdiction, in the federal statute sought to be applied to the defendant in the main claim; (4) pendent state-law claims arising in a civil rights context will "almost inevitably" involve the federal court in difficult and unsettled questions of state law, with the accompanying potential for confusion. 513 F.2d, at -1262. II The question whether "pendent" federal jurisdiction encompasses not merely the litigation of additional claims between parties with respect to whom there is federal jurisdiction, but also the joining of additional parties with respect to whom there is no independent basis of federal jurisdiction, has been much litigated in other federal courts[5] and much discussed by commentators[6] since this Court's decision in in turn, is the most recent in a long line of our cases dealing with the relationship between the judicial power of the United States and the actual contours of the cases and controversies to which that power is extended by Art. III. In Mr. Chief Justice Marshall in his opinion for the Court addressed the argument that the presence in a federal lawsuit of questions which were not dependent on the construction of a law of the United States prevented the federal court from exercising Art. III jurisdiction, even in a case in which the plaintiff had been authorized by Congress to sue in federal court. Noting that "[t]here is scarcely any case, every part of which depends" upon federal law, the Chief Justice rejected the contention: "If it be a sufficient foundation for jurisdiction, that the title or right set up by the party, may be defeated by one construction of the constitution or law of the United States, and sustained by the opposite construction, provided the facts necessary to support the action be made out, then all the other questions must be decided as incidental to this, which gives that jurisdiction. Those other questions cannot arrest the proceedings. "We think, then, that when a question to which the judicial power of the Union is extended by the constitution, forms an ingredient of the original cause, it is in the power of congress to give the Circuit Courts jurisdiction of that cause, although other questions of fact or of law may be involved in it." This doctrine was later applied in to hold that where federal jurisdiction is properly based on a colorable federal claim, the court has the "right to decide all the questions in the case, even though it decided the Federal questions adversely to the party raising them, or even if it omitted to decide them at all, but decided the case on local or state questions only." In e v. N. Y. Cotton Exchange, *8 the Court in similar fashion sustained jurisdiction over a defendant's compulsory counterclaim arising out of the same transaction upon which the plaintiff's federal antitrust claim was grounded, although the latter had been dismissed for failure to state a claim, and the former had no independent federal jurisdictional basis. A few years later, in the Court drew upon the foregoing cases to establish federal jurisdiction to decide a state-law claim joined with a federal copyright infringement claim, where both were considered "two distinct grounds in support of a single cause of action," although the federal ground had proved unsuccessful. In the respondent brought an action in federal court against petitioner UMW, asserting parallel claims a federal statutory claim and a claim under the common law of Tennesseearising out of alleged concerted union efforts to deprive him of contractual and employment relationships with the coal mine's owners. Though the federal claim was ultimately dismissed after trial, and though diversity was absent, the lower courts sustained jurisdiction over the state-law claim, and affirmed the damages award based thereon. Before reaching the merits (on which the lower courts were reversed), this Court addressed the argument that under the rule of pendent jurisdiction as set out in had merely stated "two separate and distinct causes of action" as opposed to "two distinct grounds in support of a single cause of action," in which former case the federal court lacked the power to "retain and dispose" of the "non-federal cause of action." The Court stated that since the test was formulated before the unification of law and equity by the Federal Rules of Civil Procedure, it was therefore unnecessarily tied to the outmoded concept of a "cause of *9 action" developed under code pleading rules. Recognizing that the Federal Rules themselves cannot expand federal-court jurisdiction, the Court nevertheless found in them a sufficient basis to go beyond 's "unnecessarily grudging" approach to parallel claims, and to adopt a more flexible treatment within the contours of Art. III, 2. Thus, in a federal-question case, where the federal claim is of sufficient substance, and the factual relationship between "that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional `case,' " pendent jurisdiction extends to the state The Court, in the second aspect of the formulation, went on to enumerate the various factors bearing on a district court's discretionary decision whether the power should be exercised in a given parallel-claims case, emphasizing that "pendent jurisdiction is a doctrine of discretion, not of plaintiff's right." These cases, from Osborn to show that in treating litigation where nonfederal questions or claims were bound up with the federal claim upon which the parties were already in federal court, this Court has found nothing in Art. III's grant of judicial power which prevented adjudication of the nonfederal portions of the parties' dispute. None of them, however, adverted to the separate question, involved in the instant case, of whether a nonfederal claim could in turn be the basis for joining a party over whom no independent federal jurisdiction exists, simply because that claim could be derived from the "common nucleus of operative fact" giving rise to the dispute between the parties to the federal But while none of the foregoing line of cases discussed the joining of additional parties, other decisions of this Court have developed a doctrine of "ancillary jurisdiction," *10 and it is in part upon this developmentand its relationship to that petitioner relies to support "pendent party" jurisdiction here. Under this doctrine, the Court has identified certain considerations which justified the joining of parties with respect to whom there was no independent basis of federal jurisdiction. In the Court held that the state court had no jurisdiction over a replevin action brought by creditor claimants to property that had already been attached by the federal marshal in a federal diversity action. The claimants argued that a want of state-court jurisdiction would leave them without a remedy, since diversity between them and the marshal was lacking. This Court stated that an equitable action in federal court by those claimants, seeking to prevent injustice in the diversity suit, would not have been "an original suit, but ancillary and dependent, supplementary merely to the original suit," and thus maintainable irrespective of diversity of citizenship. A similar approach was taken in where, after a creditors' suit to set aside an allegedly fraudulent conveyance was removed to federal court on grounds of diversity, other nondiverse creditors were permitted to intervene to assert an identical interest. Since it was merely a matter of form whether the latter appeared as parties or came in later under a final decree to prove their claims before a master, the federal court "could incidentally decree in favor of [the nondiverse] creditors[, and s]uch a proceeding would be ancillary to the jurisdiction acquired between the original parties" Dunham was in turn held controlling in Supreme Tribe of There, suing in diversity, out-of-state "Class A" members of an Indiana fraternal benefit society had sought a decree adjudicating their common interests in the control and disposition of *11 the society's funds. After successfully defending that action, the society brought a second suit in federal court seeking to protect that judgment as against an identical state-court action brought by members of "Class A" who were of Indiana citizenship. Since under Dunham "intervention of the Indiana citizens in the [original] suit would not have defeated the jurisdiction already acquired," the earlier judgment was binding against them, and the federal court had ancillary jurisdiction over the society's suit to enjoin the later state action, irrespective of diversity. The doctrine of ancillary jurisdiction developed in the foregoing cases is bottomed on the notion that since federal jurisdiction in the principal suit effectively controls the property or fund under dispute, other claimants thereto should be allowed to intervene in order to protect their interest, without regard to jurisdiction.[7] As this Court stated in Fulton : "The general rule is that when a federal court has properly acquired jurisdiction over a cause it may entertain, by intervention, dependent or ancillary controversies; but no controversy can be regarded as dependent or ancillary unless it has direct relation *12 to property or assets actually or constructively drawn into the court's possession or control by the principal suit." The decisional bridge between these two relatively discrete lines of cases appears to be this Court's decision in e. Since the defendant's nonfederal counterclaim in e arose out of the same transaction giving rise to the antitrust dispute between the parties, and federal jurisdiction was sustained over the former, the Court in though faced with a plaintiff's assertion of pendent jurisdiction over an additional nonfederal claim, thought the two cases, "in principle, cannot be distinguished." It was 's "unnecessarily grudging" test of pendent jurisdiction, of course, which the Court expanded in On the other hand, because e was a suit in equity, the jurisdiction sustained there has been rationalized as falling under the umbrella of ancillary jurisdiction,[8] though e neither used that term nor cited to Fulton Petitioner thus suggests that since e, read as an "ancillary" case, adopted a "transactional" test of jurisdiction quite similar to that set out in there is presently no "principled" distinction between the two doctrines. Since under the Federal Rules "joinder of claims, parties and remedies is strongly encouraged," her use of the Rules here is as a matter of jurisdictional power assertedly limited only by whether the claim against the county "derive[s] from a common nucleus of operative fact." Hence, petitioner concludes, based on ' treatment of pendent claims, and the use of ancillary jurisdiction to *13 bring in additional parties, that her nonfederal claim against a nonfederal defendant falls within pendent jurisdiction since it satisfies ' test on its face. For purposes of addressing the jurisdictional question in this case, however, we think it quite unnecessary to formulate any general, all-encompassing jurisdictional rule. Given the complexities of the many manifestations of federal jurisdiction, together with the countless factual permutations possible under the Federal Rules, there is little profit in attempting to decide, for example, whether there are any "principled" differences between pendent and ancillary jurisdiction; or, if there are, what effect had on such differences. Since it is upon ' language that the lower federal courts have relied in extending the kind of pendent-party jurisdiction urged by petitioner here, we think the better approach is to determine what did and did not decide, and to identify what we deem are important differences between the jurisdiction sustained in and that asserted here. and its lineal ancestor, Osborn, were couched in terms of Art. III's grant of judicial power in "Cases arising under this Constitution, the Laws of the United States, and [its] Treaties," since they (and implicitly the cases which linked them) represented inquiries into the scope of Art. III jurisdiction in litigation where the "common nucleus of operative fact" gave rise to non-federal questions or claims between the parties. None of them posed the need for a further inquiry into the underlying statutory grant of federal jurisdiction or a flexible analysis of concepts such as "question," "claim," and "cause of action," because Congress had not addressed itself by statute to this matter. In short, Congress had said nothing about the scope of the word "Cases" in Art. III which would offer guidance on the *14 kind of elusive question addressed in Osborn and : whether and to what extent jurisdiction extended to a parallel state claim against the existing federal defendant. Thus, it was perfectly consistent with Art. III, and the particular grant of subject-matter jurisdiction upon which the federal claim against the defendant in those cases was grounded, to require that defendant to answer as well to a second claim deriving from the "common nucleus" of fact, though it be of state-law vintage. This would not be an "unfair" use of federal power by the suing party, he already having placed the defendant properly in federal court for a substantial federal cause of action. Judicial economy would also be served because the plaintiff's claims were "such that he would ordinarily be expected to try them all in one judicial proceeding" 383 U. S., The situation with respect to the joining of a new party, however, strikes us as being both factually and legally different from the situation facing the Court in and its predecessors. From a purely factual point of view, it is one thing to authorize two parties, already present in federal court by virtue of a case over which the court has jurisdiction, to litigate in addition to their federal claim a state-law claim over which there is no independent basis of federal jurisdiction. But it is quite another thing to permit a plaintiff, who has asserted a claim against one defendant with respect to which there is federal jurisdiction, to join an entirely different defendant on the basis of a state-law claim over which there is no independent basis of federal jurisdiction, simply because his claim against the first defendant and his claim against the second defendant "derive from a common nucleus of operative fact." True, the same considerations of judicial economy would be served *15 insofar as plaintiff's claims "are such that he would ordinarily be expected to try them all in one judicial proceeding" But the addition of a completely new party would run counter to the well-established principle that federal courts, as opposed to state trial courts of general jurisdiction, are courts of limited jurisdiction marked out by Congress. We think there is much sense in the observation of Judge Sobeloff, writing for the Court of Appeals in Kenrose Mfg. : "The value of efficiency in the disposition of law-suits by avoiding multiplicity may be readily conceded, but that is not the only consideration a federal court should take into account in assessing the presence or absence of jurisdiction. Especially is this true where, as here, the efficiency plaintiff seeks so avidly is available without question in the state courts." There is also a significant legal difference. In Osborn and Congress was silent on the extent to which the defendant, already properly in federal court under a statute, might be called upon to answer nonfederal questions or claims; the way was thus left open for the Court to fashion its own rules under the general language of Art. III. But the extension of to this kind of "pendent party" jurisdictionbringing in an additional defendant at the behest of the plaintiffpresents rather different statutory jurisdictional considerations. Petitioner's contention that she should be entitled to sue Spokane County as a new third party, and then to try a wholly state-law claim against the county, all of which would be "pendent" to her federal claim against respondent county treasurer, must be decided, not in the context of congressional silence or tacit encouragement, but in *16 quite the opposite context. The question here, which it was not necessary to address in or Osborn, is whether by virtue of the statutory grant of subject-matter jurisdiction, upon which petitioner's principal claim against the treasurer rests, Congress has addressed itself to the party as to whom jurisdiction pendent to the principal claim is sought. And it undoubtedly has done so. III Congress has in specific terms conferred Art. III jurisdiction on the district courts to decide actions brought to redress deprivations of civil rights. Under the opening language of 1343,[9] those courts "shall have original jurisdiction of any civil action authorized by law to be commenced by any person" (emphasis added). The civil rights action set out in 1983[10] is, of course, included within the jurisdictional grant of subsection (3) of 1343. Yet petitioner does not, and indeed could not, contest the fact that as to 1983, counties are excluded from the "person[s]" answerable to the plaintiff "in an action at law [or] suit in equity" to redress the enumerated deprivations.[11] Petitioner must necessarily argue that in spite of the language emphasized above Congress left it open for the federal courts to fashion a jurisdictional doctrine under the general language of Art. III enabling them to circumvent this exclusion, as long as the civil rights action and the state-law claim arise from a "common nucleus of operative fact." But the question whether jurisdiction over the instant lawsuit extends not only to a related state-law claim, but to the defendant against whom that claim is made, turns initially, not on the general *17 contours of the language in Art. III, i. e., "Cases arising under," but upon the deductions which may be drawn from congressional statutes as to whether Congress wanted to grant this sort of jurisdiction to federal courts. Parties such as counties, whom Congress excluded from liability in 1983, and therefore by reference in the grant of jurisdiction under 1343 (3), can argue with a great deal of force that the scope of that "civil action" over which the district courts have been given statutory jurisdiction should not be so broadly read as to bring them back within that power merely because the facts also give rise to an ordinary civil action against them under state law. In short, as against a plaintiff's claim of additional power over a "pendent party," the reach of the statute conferring jurisdiction should be construed in light of the scope of the cause of action as to which federal judicial power has been extended by Congress. Resolution of a claim of pendent-party jurisdiction, therefore, calls for careful attention to the relevant statutory language. As we have indicated, we think a fair reading of the language used in 1343, together with the scope of 1983, requires a holding that the joinder of a municipal corporation, like the county here, for purposes of asserting a state-law claim not within federal diversity jurisdiction, is without the statutory jurisdiction of the district court.[12] *18 There are, of course, many variations in the language which Congress has employed to confer jurisdiction upon the federal courts, and we decide here only the issue of so-called "pendent party" jurisdiction with respect to a claim brought under 1343 (3) and 1983. Other statutory grants and other alignments of parties and claims might call for a different result. When the grant of jurisdiction to a federal court is exclusive, for example, as in the prosecution of tort claims against the United States under 28 U.S. C. 1346, the argument of judicial economy and convenience can be coupled with the additional argument that only in a federal court may all of the claims be tried together.[13] As we indicated at the outset of this opinion, the question of pendent-party jurisdiction is "subtle and complex," and we believe that it would be as unwise as it would be unnecessary to lay down any sweeping pronouncement upon the existence or exercise of such jurisdiction. Two observations suffice for the disposition of the type of case before us. If the new party sought to be joined is not otherwise subject to federal jurisdiction, there is a more serious obstacle to the exercise of pendent jurisdiction than if parties already before the court are required to litigate a state-law Before it can be concluded that such jurisdiction exists, a federal court must satisfy itself not only that Art. III permits it, but that Congress in the statutes conferring jurisdiction has not expressly or by implication negated its existence. *19 We conclude that in this case Congress has by implication declined to extend federal jurisdiction over a party such as Spokane County. The judgment of the Court of Appeals for the Ninth Circuit is therefore Affirmed. MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR. |
Justice Burger | dissenting | false | Department of Air Force v. Rose | 1976-04-21T00:00:00 | null | https://www.courtlistener.com/opinion/109431/department-of-air-force-v-rose/ | https://www.courtlistener.com/api/rest/v3/clusters/109431/ | 1,976 | 1975-079 | 2 | 5 | 3 | If "hard cases make bad law," unusual cases surely have the potential to make even worse law. Today, on the basis of a highly unusual request for information about a unique governmental process, a military academy honor system, the Court interprets definitively a substantial and very significant part of a major federal statute governing the balance between the public's "right to know" and the privacy of the individual citizen.
In my view, the Court makes this case carry too much jurisprudential baggage. Consequently, the basic congressional intent to protect a reasonable balance between the availability of information in the custody of the Government and the particular individual's right of privacy is undermined. In addition, district courts are burdened with a task Congress could not have intended for them.
(1) This case does not compel us to decide whether the summaries at issue here are "personnel files" or whether files so categorized are beyond the proviso of Exemption 6 that disclosure constitute "a clearly unwarranted invasion of personal privacy." Even assuming, arguendo, that the Government must show that the summaries are subject to the foregoing standard, it is quite *383 clear, in my view, that the disclosure of the material at issue here constitutes such an invasion, no matter what excision process is attempted by a federal judge.
The Court correctly notes that Congress, in enacting Exemption 6, intended to strike "a proper balance between the protection of the individual's right of privacy and the preservation of the public's right to Government information by excluding those kinds of files the disclosure of which might harm the individual." H. R. Rep. No. 1497, 89th Cong., 2d Sess., 11 (1966). Having acknowledged the necessity of such a balance, however, the Court, in my view, blandly ignores and thereby frustrates the congressional intent by refusing to weigh, realistically, the grave consequences implicit in release of this particular information, in any form, against the relatively inconsequential claim of "need" for the material alleged in the complaint.
The opinions of this Court have long recognized the opprobrium which both the civilian and the military segments of our society attribute to allegations of dishonor among commissioned officers of our Armed Forces. See, e. g., Parker v. Levy, 417 U.S. 733, 744 (1974), quoting Orloff v. Willoughby, 345 U.S. 83, 91 (1953). The stigma which our society imposes on the individual who has accepted such a position of trust[1] and abused it is not erasable, in any realistic sense, by the passage of time *384 or even by subsequent exemplary conduct. The absence of the broken sword, the torn epaulets, and the Rogue's March from our military ritual does not lessen the indelibility of the stigma. Significantly, cadets and midshipmen "inchoate officers"[2]have traditionally been held to the same high standards and subjected to the same stigma as commissioned officers when involved in matters with overtones of dishonor.[3] Indeed, the mode of punitive separation as the result of court-martial is the same for both officers and cadetsdismissal. United States v. Ellman, 9 U.S. C. M. A. 549, 26 Cow. M. R. 329 (1958). Moreover, as the Court of Appeals noted, it is unrealistic to conclude, in most cases, that a finding of "not guilty" or "discretion" exonerates the cadet in anything other than the purely technical and legal sense of the term.
Admittedly, the Court requires that, before release, these documents be subject to in camera inspection with power of excising parts. But, as the Court admits, any such attempt to "sanitize" these summaries would still leave the very distinct possibility that the individual would still be identifiable and thereby injured. In light of Congress' recent manifest concern in the Privacy Act of 1974, 5 U.S. C. § 552a (1970 ed., Supp. V), for "governmental respect for the privacy of citizens . . . ," S. Rep. No. 93-1183, p. 1 (1974), it is indeed difficult to attribute to Congress a willingness to subject an individual citizen to the risk of possible severe damage to his reputation simply to permit law students to invade individual privacy to prepare a law journal article. Its definition of a "clearly unwarranted invasion of personal *385 privacy" as equated with "protect[ing] an individual's private affairs from unnecessary public scrutiny . . . ," S. Rep. No. 813, 89th Cong., 1st Sess., 9 (1965) (emphasis supplied), would otherwise be rendered meaningless.
(2) Moreover, excision would not only be ineffectual in accomplishing the legislative intent of protecting an individual's affairs from unnecessary public scrutiny, but it would place an intolerable burden upon a district court which, in my view, Congress never intended to inflict. Although the 1974 amendments to the Freedom of Information Act require that "[a]ny reasonably segregable portion of a record . . . ," 5 U.S. C. § 552 (b) (1970 ed., Supp. V), otherwise exempt, be provided, there is nothing in the legislative history of the original Act or its amendments which would require a district court to construct, in effect, a new document. Yet, the excision process mandated here could only require such a sweeping reconstruction of the material that the end product would constitute an entirely new document. No provision of the Freedom of Information Act contemplates a federal district judge acting as a "rewrite editor" of the original material.
If the Court's holding is indeed a fair reflection of congressional intent, we are confronted with a "splitpersonality" legislative reaction, by the conflict between a seeming passion for privacy and a comparable passion for needless invasions of privacy.
Accordingly, I would reverse the judgment of the Court of Appeals.
MR. | If "hard cases make bad law," unusual cases surely have the potential to make even worse law. Today, on the basis of a highly unusual request for information about a unique governmental process, a military academy honor system, the Court interprets definitively a substantial and very significant part of a major federal statute governing the balance between the public's "right to know" and the privacy of the individual citizen. In my view, the Court makes this case carry too much jurisprudential baggage. Consequently, the basic congressional intent to protect a reasonable balance between the availability of information in the custody of the Government and the particular individual's right of privacy is undermined. In addition, district courts are burdened with a task Congress could not have intended for them. (1) This case does not compel us to decide whether the summaries at issue here are "personnel files" or whether files so categorized are beyond the proviso of Exemption 6 that disclosure constitute "a clearly unwarranted invasion of personal privacy." Even assuming, arguendo, that the Government must show that the summaries are subject to the foregoing standard, it is quite *383 clear, in my view, that the disclosure of the material at issue here constitutes such an invasion, no matter what excision process is attempted by a federal judge. The Court correctly notes that Congress, in enacting Exemption 6, intended to strike "a proper balance between the protection of the individual's right of privacy and the preservation of the public's right to Government information by excluding those kinds of files the disclosure of which might harm the individual." H. R. Rep. No. 1497, 89th Cong., 2d Sess., 11 (1966). Having acknowledged the necessity of such a balance, however, the Court, in my view, blandly ignores and thereby frustrates the congressional intent by refusing to weigh, realistically, the grave consequences implicit in release of this particular information, in any form, against the relatively inconsequential claim of "need" for the material alleged in the complaint. The opinions of this Court have long recognized the opprobrium which both the civilian and the military segments of our society attribute to allegations of dishonor among commissioned officers of our Armed Forces. See, e. g., quoting The stigma which our society imposes on the individual who has accepted such a position of trust[1] and abused it is not erasable, in any realistic sense, by the passage of time *384 or even by subsequent exemplary conduct. The absence of the broken sword, the torn epaulets, and the Rogue's March from our military ritual does not lessen the indelibility of the stigma. Significantly, cadets and midshipmen "inchoate officers"[2]have traditionally been held to the same high standards and subjected to the same stigma as commissioned officers when involved in matters with overtones of dishonor.[3] Indeed, the mode of punitive separation as the result of court-martial is the same for both officers and cadetsdismissal. United States v. Ellman, 9 U.S. C. M. A. 549, 26 Cow. M. R. 329 (1958). Moreover, as the Court of Appeals noted, it is unrealistic to conclude, in most cases, that a finding of "not guilty" or "discretion" exonerates the cadet in anything other than the purely technical and legal sense of the term. Admittedly, the Court requires that, before release, these documents be subject to in camera inspection with power of excising parts. But, as the Court admits, any such attempt to "sanitize" these summaries would still leave the very distinct possibility that the individual would still be identifiable and thereby injured. In light of Congress' recent manifest concern in the Privacy Act of 1974, 5 U.S. C. 552a (1970 ed., Supp. V), for "governmental respect for the privacy of citizens" S. Rep. No. 93-1183, p. 1 it is indeed difficult to attribute to Congress a willingness to subject an individual citizen to the risk of possible severe damage to his reputation simply to permit law students to invade individual privacy to prepare a law journal article. Its definition of a "clearly unwarranted invasion of personal *385 privacy" as equated with "protect[ing] an individual's private affairs from unnecessary public scrutiny" S. Rep. No. 813, 89th Cong., 1st Sess., 9 (1965) (emphasis supplied), would otherwise be rendered meaningless. (2) Moreover, excision would not only be ineffectual in accomplishing the legislative intent of protecting an individual's affairs from unnecessary public scrutiny, but it would place an intolerable burden upon a district court which, in my view, Congress never intended to inflict. Although the 1974 amendments to the Freedom of Information Act require that "[a]ny reasonably segregable portion of a record" 5 U.S. C. 552 (b) (1970 ed., Supp. V), otherwise exempt, be provided, there is nothing in the legislative history of the original Act or its amendments which would require a district court to construct, in effect, a new document. Yet, the excision process mandated here could only require such a sweeping reconstruction of the material that the end product would constitute an entirely new document. No provision of the Freedom of Information Act contemplates a federal district judge acting as a "rewrite editor" of the original material. If the Court's holding is indeed a fair reflection of congressional intent, we are confronted with a "splitpersonality" legislative reaction, by the conflict between a seeming passion for privacy and a comparable passion for needless invasions of privacy. Accordingly, I would reverse the judgment of the Court of Appeals. MR. |
Justice Sotomayor | dissenting | false | Bruesewitz v. Wyeth LLC | 2011-02-22T00:00:00 | null | https://www.courtlistener.com/opinion/205203/bruesewitz-v-wyeth-llc/ | https://www.courtlistener.com/api/rest/v3/clusters/205203/ | 2,011 | 2010-015 | 2 | 6 | 2 | Vaccine manufacturers have long been subject to a legal
duty, rooted in basic principles of products liability law, to
improve the designs of their vaccines in light of advances
in science and technology. Until today, that duty was
enforceable through a traditional state-law tort action for
defective design. In holding that §22(b)(1) of the National
Childhood Vaccine Injury Act of 1986 (Vaccine Act or Act),
42 U.S. C. §300aa–22(b)(1), pre-empts all design defect
claims for injuries stemming from vaccines covered under
the Act, the Court imposes its own bare policy preference
over the considered judgment of Congress. In doing so,
the Court excises 13 words from the statutory text, mis
construes the Act’s legislative history, and disturbs the
careful balance Congress struck between compensating
vaccine-injured children and stabilizing the childhood
vaccine market. Its decision leaves a regulatory vacuum
in which no one ensures that vaccine manufacturers ade
quately take account of scientific and technological ad
vancements when designing or distributing their products.
Because nothing in the text, structure, or legislative his
tory of the Vaccine Act remotely suggests that Congress
intended such a result, I respectfully dissent.
2 BRUESEWITZ v. WYETH LLC
SOTOMAYOR, J., dissenting
I
A
Section 22 of the Vaccine Act provides “[s]tandards of
responsibility” to govern civil actions against vaccine
manufacturers. 42 U.S. C. §300aa–22. Section 22(a) sets
forth the “[g]eneral rule” that “State law shall apply to a
civil action brought for damages for a vaccine-related
injury or death.” §300aa–22(a). This baseline rule that
state law applies is subject to three narrow exceptions, one
of which, §22(b)(1), is at issue in this case. Section 22(b)(1)
provides:
“No vaccine manufacturer shall be liable in a civil ac
tion for damages arising from a vaccine-related injury
or death associated with the administration of a vac
cine after October 1, 1988, if the injury or death re
sulted from side effects that were unavoidable even
though the vaccine was properly prepared and was
accompanied by proper directions and warnings.”
§300aa–22(b)(1).
The provision contains two key clauses: “if the injury or
death resulted from side effects that were unavoidable”
(the “if ” clause), and “even though the vaccine was prop
erly prepared and was accompanied by proper directions
and warnings” (the “even though” clause).
Blackletter products liability law generally recognizes
three different types of product defects: design defects,
manufacturing defects, and labeling defects (e.g., failure to
warn).1 The reference in the “even though” clause to a
“properly prepared” vaccine “accompanied by proper direc
tions and warnings” is an obvious reference to two such
defects—manufacturing and labeling defects. The plain
terms of the “even though” clause thus indicate that
——————
1 W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on
Law of Torts 695 (5th ed. 1984).
Cite as: 562 U. S. ____ (2011) 3
SOTOMAYOR, J., dissenting
§22(b)(1) applies only where neither kind of defect is pre
sent. Because §22(b)(1) is invoked by vaccine manufactur
ers as a defense to tort liability, it follows that the “even
though” clause requires a vaccine manufacturer in each
civil action to demonstrate that its vaccine is free from
manufacturing and labeling defects to fall within the
liability exemption of §22(b)(1).2
Given that the “even though” clause requires the ab
sence of manufacturing and labeling defects, the “if ”
clause’s reference to “side effects that were unavoidable”
must refer to side effects caused by something other than
manufacturing and labeling defects. The only remaining
kind of product defect recognized under traditional prod
ucts liability law is a design defect. Thus, “side effects
that were unavoidable” must refer to side effects caused by
a vaccine’s design that were “unavoidable.” Because
§22(b)(1) uses the conditional term “if,” moreover, the text
plainly implies that some side effects stemming from a
vaccine’s design are “unavoidable,” while others are avoid
able. See Webster’s Third New International Dictionary
1124 (2002) (“if ” means “in the event that,” “so long as,” or
“on condition that”). Accordingly, because the “if ” clause
(like the “even though” clause) sets forth a condition to
invoke §22(b)(1)’s defense to tort liability, Congress must
also have intended a vaccine manufacturer to demonstrate
in each civil action that the particular side effects of a
vaccine’s design were “unavoidable.”
Congress’ use of conditional “if” clauses in two other
provisions of the Vaccine Act supports the conclusion that
§22(b)(1) requires an inquiry in each case in which a
manufacturer seeks to invoke the provision’s exception to
——————
2 See Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 255 (1984); Brown
v. Earthboard Sports USA, Inc., 481 F.3d 901, 912 (CA6 2007)
(“ ‘[F]ederal preemption is an affirmative defense upon which the
defendants bear the burden of proof ’ ” (quoting Fifth Third Bank v.
CSX Corp., 415 F.3d 741, 745 (CA7 2005))).
4 BRUESEWITZ v. WYETH LLC
SOTOMAYOR, J., dissenting
state tort liability. In §22(b)(2), Congress created a pre
sumption that, for purposes of §22(b)(1), “a vaccine shall
be presumed to be accompanied by proper directions and
warnings if the vaccine manufacturer shows that it com
plied in all material respects with” federal labeling re
quirements. 42 U.S. C. §300aa–22(b)(2). Similarly, in
§23(d)(2), Congress created an exemption from punitive
damages “[i]f . . . the manufacturer shows that it complied,
in all material respects,” with applicable federal laws,
unless it engages in “fraud,” “intentional and wrongful
withholding of information” from federal regulators, or
“other criminal or illegal activity.” §300aa–23(d)(2). It
would be highly anomalous for Congress to use a condi
tional “if ” clause in §§22(b)(2) and 23(d)(2) to require a
specific inquiry in each case while using the same condi
tional “if ” clause in §22(b)(1) to denote a categorical ex
emption from liability. Cf. 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”).
Indeed, when Congress intends to pre-empt design
defect claims categorically, it does so using categorical
(e.g., “all”) and/or declarative language (e.g., “shall”),
rather than a conditional term (“if ”). For example, in
a related context, Congress has authorized the Secretary
of Health and Human Services to designate a vaccine
designed to prevent a pandemic or epidemic as a “covered
countermeasure.” 42 U.S. C. §§247d–6d(b), (i)(1),
(i)(7)(A)(i). With respect to such “covered countermea
sure[s],” Congress provided that subject to certain excep
tions, “a covered person shall be immune from suit and
liability under Federal and State law with respect to all
claims for loss caused by, arising out of, relating to, or
resulting from the administration to or the use by an
individual of a covered countermeasure,” §247d–6d(a)(1)
(emphasis added), including specifically claims relating to
Cite as: 562 U. S. ____ (2011) 5
SOTOMAYOR, J., dissenting
“the design” of the countermeasure, §247d–6d(a)(2)(B).
The plain text and structure of the Vaccine Act thus
compel the conclusion that §22(b)(1) pre-empts some—but
not all—design defect claims. Contrary to the majority’s
and respondent’s categorical reading, petitioners correctly
contend that, where a plaintiff has proved that she has
suffered an injury resulting from a side effect caused by
a vaccine’s design, a vaccine manufacturer may invoke
§22(b)(1)’s liability exemption only if it demonstrates that
the side effect stemming from the particular vaccine’s
design is “unavoidable,” and that the vaccine is otherwise
free from manufacturing and labeling defects.3
B
The legislative history confirms petitioners’ interpreta
tion of §22(b)(1) and sheds further light on its pre-emptive
scope. The House Energy and Commerce Committee
Report accompanying the Vaccine Act, H. R. Rep. No. 99–
908, pt. 1 (1986) (hereinafter 1986 Report), explains in
relevant part:
“Subsection (b)—Unavoidable Adverse Side Effects;
Direct Warnings.—This provision sets forth the prin
ciple contained in Comment K of Section 402A of the
Restatement of Torts (Second) that a vaccine manu
facturer should not be liable for injuries or deaths re
sulting from unavoidable side effects even though the
vaccine was properly prepared and accompanied by
proper directions and warnings.
“The Committee has set forth Comment K in this
bill because it intends that the principle in Comment
K regarding ‘unavoidably unsafe’ products, i.e., those
products which in the present state of human skill
and knowledge cannot be made safe, apply to the vac
——————
3 This leaves the question of what precisely §22(b)(1) means by “un
avoidable” side effects, which I address in the next section.
6 BRUESEWITZ v. WYETH LLC
SOTOMAYOR, J., dissenting
cines covered in the bill and that such products not be
the subject of liability in the tort system.” Id., at 25–
26.
The Report expressly adopts comment k of §402A of the
Restatement of Torts (Second) (1963–1964) (hereinafter
Restatement), which provides that “unavoidably unsafe”
products—i.e., those that “in the present state of human
knowledge, are quite incapable of being made safe for
their intended and ordinary use”—are not defective.4 As
“[a]n outstanding example” of an “[u]navoidably unsafe”
product, comment k cites “the vaccine for the Pasteur
treatment of rabies, which not uncommonly leads to very
serious and damaging consequences when it is injected”;
——————
4 Comment k provides as follows:
“Unavoidably unsafe products. There are some products which, in
the present state of human knowledge, are quite incapable of being
made safe for their intended and ordinary use. These are especially
common in the field of drugs. An outstanding example is the vaccine
for the Pasteur treatment of rabies, which not uncommonly leads to
very serious and damaging consequences when it is injected. Since the
disease itself invariably leads to a dreadful death, both the marketing
and the use of the vaccine are fully justified, notwithstanding the
unavoidable high degree of risk which they involve. Such a product,
properly prepared, and accompanied by proper directions and warning,
is not defective, nor is it unreasonably dangerous. The same is true of
many other drugs, vaccines, and the like, many of which for this very
reason cannot legally be sold except to physicians, or under the pre
scription of a physician. It is also true in particular of many new or
experimental drugs as to which, because of lack of time and opportunity
for sufficient medical experience, there can be no assurance of safety, or
perhaps even of purity of ingredients, but such experience as there is
justifies the marketing and use of the drug notwithstanding a medically
recognizable risk. The seller of such products, again with the qualifica
tion that they are properly prepared and marketed, and proper warning
is given, where the situation calls for it, is not to be held to strict
liability for unfortunate consequences attending their use, merely
because he has undertaken to supply the public with an apparently
useful and desirable product, attended with a known but apparently
reasonable risk.” Restatement 353–354.
Cite as: 562 U. S. ____ (2011) 7
SOTOMAYOR, J., dissenting
“[s]ince the disease itself invariably leads to a dreadful
death, both the marketing and the use of the vaccine are
fully justified, notwithstanding the unavoidable high
degree of risk which they involve.” Id., at 353. Comment
k thus provides that “seller[s]” of “[u]navoidably unsafe”
products are “not to be held to strict liability” provided
that such products “are properly prepared and marketed,
and proper warning is given.” Ibid.
As the 1986 Report explains, Congress intended that the
“principle in Comment K regarding ‘unavoidably unsafe’
products” apply to the vaccines covered in the bill. 1986
Report 26. That intent, in turn, is manifested in the plain
text of §22(b)(1)—in particular, Congress’ use of the word
“unavoidable,” as well as the phrases “properly prepared”
and “accompanied by proper directions and warnings,”
which were taken nearly verbatim from comment k. 42
U.S. C. §300aa–22(b)(1); see Restatement 353–354 (“Such
a[n unavoidably unsafe] product, properly prepared, and
accompanied by proper directions and warning, is not
defective”). By the time of the Vaccine Act’s enactment in
1986, numerous state and federal courts had interpreted
comment k to mean that a product is “unavoidably unsafe”
when, given proper manufacture and labeling, no feasible
alternative design would reduce the safety risks without
compromising the product’s cost and utility.5 Given Con
——————
5 See, e.g., Smith ex rel. Smith v. Wyeth Labs., Inc., No. Civ. A 84–
2002, 1986 WL 720792, *5 (SD W. Va., Aug. 21, 1986) (“[A] prescription
drug is not ‘unavoidably unsafe’ when its dangers can be eliminated
through design changes that do not unduly affect its cost or utility”);
Kearl v. Lederle Labs., 172 Cal. App. 3d 812, 830, 218 Cal. Rptr. 453,
464 (1985) (“unavoidability” turns on “(i) whether the product was
designed to minimize—to the extent scientifically knowable at the time
it was distributed—the risk inherent in the product, and (ii) the avail
ability . . . of any alternative product that would have as effectively
accomplished the full intended purpose of the subject product”), disap
proved in part by Brown v. Superior Ct., 44 Cal. 3d 1049, 751 P.2d 470
(1988); Belle Bonfils Memorial Blood Bank v. Hansen, 665 P.2d 118,
8 BRUESEWITZ v. WYETH LLC
SOTOMAYOR, J., dissenting
gress’ expressed intent to codify the “principle in Comment
K,” 1986 Report 26, the term “unavoidable” in §22(b)(1) is
best understood as a term of art, which incorporates the
commonly understood meaning of “unavoidably unsafe”
products under comment k at the time of the Act’s enact
ment in 1986. See McDermott Int’l, Inc. v. Wilander, 498
U.S. 337, 342 (1991) (“[W]e assume that when a statute
uses . . . a term [of art], Congress intended it to have its
established meaning”); Morissette v. United States, 342
U.S. 246, 263 (1952) (same).6 Similarly, courts applying
——————
122 (Colo. 1983) (“[A]pplicability of comment k . . . depends upon the co
existence of several factors,” including that “the product’s benefits must
not be achievable in another manner; and the risk must be unavoidable
under the present state of knowledge”); see also 1 L. Frumer & M.
Friedman, Products Liability §§8.07[1]–[2], pp. 8–277 to 8–278 (2010)
(comment k applies “only to defects in design,” and there “must be no
feasible alternative design which on balance accomplishes the subject
product’s purpose with a lesser risk” (internal quotation marks omit
ted)). To be sure, a number of courts at the time of the Vaccine Act’s
enactment had interpreted comment k to preclude design defect claims
categorically for certain kinds of products, see Hill v. Searle Labs., 884
F.2d 1064, 1068 (CA8 1989) (collecting cases), but as indicated by the
sources cited above, the courts that had construed comment k to apply
on a case-specific basis generally agreed on the basic elements of what
constituted an “unavoidably unsafe” product. See also n. 8, infra. The
majority’s suggestion that “judges who must rule on motions to dismiss,
motions for summary judgment, and motions for judgment as a matter
of law” are incapable of adjudicating claims alleging “unavoidable” side
effects, ante, at 7–8, n. 35, is thus belied by the experience of the many
courts that had adjudicated such claims for years by the time of the
Vaccine Act’s enactment.
6 The majority refuses to recognize that “unavoidable” is a term of art
derived from comment k, suggesting that “ ‘[u]navoidable’ is hardly a
rarely used word.” Ante, at 10. In fact, however, “unavoidable” is an
extremely rare word in the relevant context. It appears exactly once
(i.e., in §300aa–22(b)(1)) in the entirety of Title 42 of the U. S. Code
(“Public Health and Welfare”), which governs, inter alia, Social Secu
rity, see 42 U.S. C. §301 et seq., Medicare, see §1395 et seq., and several
other of the Federal Government’s largest entitlement programs. The
singular rarity in which Congress used the term supports the conclu
Cite as: 562 U. S. ____ (2011) 9
SOTOMAYOR, J., dissenting
comment k had long required manufacturers invoking
the defense to demonstrate that their products were not
only “unavoidably unsafe” but also properly manufactured
and labeled.7 By requiring “prope[r] prepar[ation]” and
“proper directions and warnings” in §22(b)(1), Congress
plainly intended to incorporate these additional comment
k requirements.
The 1986 Report thus confirms petitioners’ interpreta
tion of §22(b)(1). The Report makes clear that “side effects
that were unavoidable” in §22(b)(1) refers to side effects
stemming from a vaccine’s design that were “unavoidable.”
By explaining what Congress meant by the term “un
avoidable,” moreover, the Report also confirms that
whether a side effect is “unavoidable” for purposes of
§22(b)(1) involves a specific inquiry in each case as to
whether the vaccine “in the present state of human skill
and knowledge cannot be made safe,” 1986 Report 26—i.e.,
whether a feasible alternative design existed that would
have eliminated the adverse side effects of the vaccine
without compromising its cost and utility. See Brief for
Kenneth W. Starr et al. as Amici Curiae 14–15 (“If a par
ticular plaintiff could show that her injury at issue was
avoidable . . . through the use of a feasible alternative
design for a specific vaccine, then she would satisfy the
plain language of the statute, because she would have
demonstrated that the side effects were not unavoidable”).
Finally, the Report confirms that the “even though” clause
is properly read to establish two additional prerequisites—
proper manufacturing and proper labeling—to qualify for
——————
sion that “unavoidable” is a term of art.
7 See, e.g., Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652, 657
(CA1 1981); Needham v. White Labs., Inc., 639 F.2d 394, 402 (CA7
1981); Reyes v. Wyeth Labs., 498 F.2d 1264, 1274–1275 (CA5 1974);
Davis v. Wyeth Labs., 399 F.2d 121, 127–129 (CA9 1968); Feldman v.
Lederle Labs., 97 N. J. 429, 448, 479 A.2d 374, 384 (1984); see also
Toner v. Lederle Labs., 112 Idaho 328, 336, 732 P.2d 297, 305 (1987).
10 BRUESEWITZ v. WYETH LLC
SOTOMAYOR, J., dissenting
§22(b)(1)’s liability exemption.8
In addition to the 1986 Report, one other piece of the
Act’s legislative history provides further confirmation of
the petitioners’ textual reading of §22(b)(1). When Con
gress enacted the Vaccine Act in 1986, it did not initially
include a source of payment for the no-fault compensation
program the Act established. The Act thus “made the
compensation program and accompanying tort reforms
contingent on the enactment of a tax to provide funding
——————
8 Respondent suggests an alternative reading of the 1986 Report.
According to respondent, “the principle in Comment K” is simply that of
nonliability for “unavoidably unsafe” products, and thus Congress’
stated intent in the 1986 Report to apply the “principle in Comment K”
to “the vaccines covered in the bill” means that Congress viewed the
covered vaccines as a class to be “ ‘unavoidably unsafe.’ ” 1986 Report
25–26; Brief for Respondent 42. The concurrence makes a similar
argument. Ante, at 1–2 (opinion of BREYER, J.). This interpretation
finds some support in the 1986 Report, which states that “if [injured
individuals] cannot demonstrate under applicable law either that a
vaccine was improperly prepared or that it was accompanied by im
proper directions or inadequate warnings [they] should pursue recom
pense in the compensation system, not the tort system.” 1986 Report
26. It also finds some support in the pre-Vaccine Act case law, which
reflected considerable disagreement in the courts over “whether com
ment k applies to pharmaceutical products across the board or only on
a case-by-case basis.” Ausness, Unavoidably Unsafe Products and
Strict Products Liability: What Liability Rule Should be Applied to the
Sellers of Pharmaceutical Products? 78 Ky. L. J. 705, 708, and n. 11
(1989–1990) (collecting cases). This interpretation, however, is under
mined by the fact that Congress has never directed the Food and Drug
Administration (FDA) or any other federal agency to review vaccines
for optimal vaccine design, see infra, at 20–22, and n. 19, and thus it
seems highly unlikely that Congress intended to eliminate the tradi
tional mechanism for such review (i.e., design defect liability), particu
larly given its express retention of state tort law in the Vaccine Act, see
42 U.S. C. §300aa–22(a). In any event, to the extent there is ambiguity
as to how precisely Congress intended the “principle in Comment K” to
apply to the covered vaccines, that ambiguity is explicitly resolved in
petitioners’ favor by the 1987 House Energy and Commerce Committee
Report, H. R. Rep. No. 100–391, pt. 1, pp. 690–691 (hereinafter 1987
Report). See infra this page and 11–12.
Cite as: 562 U. S. ____ (2011) 11
SOTOMAYOR, J., dissenting
for the compensation.” 1987 Report 690. In 1987, Con
gress passed legislation to fund the compensation pro
gram. The House Energy and Commerce Committee
Report9 accompanying that legislation specifically stated
that “the codification of Comment (k) of The Restatement
(Second) of Torts was not intended to decide as a matter of
law the circumstances in which a vaccine should be
deemed unavoidably unsafe.” Id., at 691. The Committee
noted that “[a]n amendment to establish . . . that a manu
facturer’s failure to develop [a] safer vaccine was not
grounds for liability was rejected by the Committee during
its original consideration of the Act.” Ibid. In light of that
rejection, the Committee emphasized that “there should be
no misunderstanding that the Act undertook to decide as a
matter of law whether vaccines were unavoidably unsafe
or not,” and that “[t]his question is left to the courts to
determine in accordance with applicable law.” Ibid.
To be sure, postenactment legislative history created by
a subsequent Congress is ordinarily a hazardous basis
from which to infer the intent of the enacting Congress.
See Sullivan v. Finkelstein, 496 U.S. 617, 631–632 (1990)
(SCALIA, J., concurring in part). But unlike ordinary
postenactment legislative history, which is justifiably
given little or no weight, the 1987 Report reflects the
intent of the Congress that enacted the funding legislation
necessary to give operative effect to the principal provi
sions of the Vaccine Act, including §22(b)(1).10 Congress in
——————
9 The Third Circuit’s opinion below expressed uncertainty as to
whether the 1987 Report was authored by the House Budget Commit
tee or the House Energy and Commerce Committee. See 561 F.3d 233,
250 (2009). As petitioners explain, although the Budget Committee
compiled and issued the Report, the Energy and Commerce Committee
wrote and approved the relevant language. Title IV of the Report,
entitled “Committee on Energy and Commerce,” comprises “two Com
mittee Prints approved by the Committee on Energy and Commerce for
inclusion in the forthcoming reconciliation bill.” 1987 Report 377, 380.
10 The majority suggests that the 1987 legislation creating the fund
12 BRUESEWITZ v. WYETH LLC
SOTOMAYOR, J., dissenting
1987 had a number of options before it, including adopting
an entirely different compensation scheme, as the Reagan
administration was proposing;11 establishing different
limitations on tort liability, including eliminating design
defect liability, as pharmaceutical industry leaders were
advocating;12 or not funding the compensation program at
all, which would have effectively nullified the relevant
portions of the Act. Because the tort reforms in the 1986
Act, including §22(b)(1), had no operative legal effect
unless and until Congress provided funding for the com
pensation program, the views of the Congress that enacted
that funding legislation are a proper and, indeed, authori
tative guide to the meaning of §22(b)(1). Those views, as
reflected in the 1987 Report, provide unequivocal confir
——————
ing mechanism is akin to appropriations legislation and that giving
weight to the legislative history of such legislation “would set a danger
ous precedent.” Ante, at 18. The difference, of course, is that appro
priations legislation ordinarily funds congressional enactments that
already have operative legal effect; in contrast, operation of the tort
reforms in the 1986 Act, including §22(b)(1), was expressly conditioned
on the enactment of a separate tax to fund the compensation program.
See §323(a), 100 Stat. 3784. Accordingly, this Court’s general reluc
tance to view appropriations legislation as modifying substantive
legislation, see, e.g., TVA v. Hill, 437 U.S. 153, 190 (1978), has no
bearing here.
11 See 1987 Report 700 (describing the administration’s alternative
proposal).
12 See, e.g., Hearings on Funding of the Childhood Vaccine Program
before the Subcommittee on Select Revenue Measures of the House
Committee on Ways and Means, 100th Cong., 1st Sess., 85 (1987)
(“[T]he liability provisions of the 1986 Act should be amended to assure
that manufacturers will not be found liable in the tort system if they
have fully complied with applicable government regulations. In par
ticular, manufacturers should not face liability under a ‘design defect’
theory in cases where plaintiffs challenge the decisions of public health
authorities and federal regulators that the licensed vaccines are the
best available way to protect children from deadly diseases” (statement
of Robert B. Johnson, President, Lederle Laboratories Division, Ameri
can Cyanamid Co.)).
Cite as: 562 U. S. ____ (2011) 13
SOTOMAYOR, J., dissenting
mation of petitioners’ reading of §22(b)(1).
In sum, the text, structure, and legislative history of the
Vaccine Act are fully consistent with petitioners’ reading
of §22(b)(1). Accordingly, I believe §22(b)(1) exempts
vaccine manufacturers from tort liability only upon a
showing by the manufacturer in each case that the vaccine
was properly manufactured and labeled, and that the side
effects stemming from the vaccine’s design could not have
been prevented by a feasible alternative design that would
have eliminated the adverse side effects without compro
mising the vaccine’s cost and utility.
II
In contrast to the interpretation of §22(b)(1) set forth
above, the majority’s interpretation does considerable vio
lence to the statutory text, misconstrues the legislative
history, and draws the wrong conclusions from the struc
ture of the Vaccine Act and the broader federal scheme
regulating vaccines.
A
As a textual matter, the majority’s interpretation of
§22(b)(1) is fundamentally flawed in three central re
spects. First, the majority’s categorical reading rests on a
faulty and untenable premise. Second, its reading func
tionally excises 13 words from the statutory text, including
the key term “unavoidable.” And third, the majority en
tirely ignores the Vaccine Act’s default rule preserving
state tort law.
To begin, the majority states that “[a] side effect of a
vaccine could always have been avoidable by use of a
differently designed vaccine not containing the harmful
element.” Ante, at 7. From that premise, the majority
concludes that the statute must mean that “the design of
the vaccine is a given, not subject to question in the tort
action,” because construing the statute otherwise would
14 BRUESEWITZ v. WYETH LLC
SOTOMAYOR, J., dissenting
render §22(b)(1) a nullity. Ibid. A tort claimant, accord
ing to the majority, will always be able to point to a differ
ently designed vaccine not containing the “harmful ele
ment,” and if that were sufficient to show that a vaccine’s
side effects were not “unavoidable,” the statute would pre
empt nothing.
The starting premise of the majority’s interpretation,
however, is fatally flawed. Although in the most literal
sense, as the majority notes, a side effect can always be
avoided “by use of a differently designed vaccine not con
taining the harmful element,” ibid., this interpretation of
“unavoidable” would effectively read the term out of the
statute, and Congress could not have intended that result.
Indeed, §22(b)(1) specifically uses the conditional phrase
“if the injury or death resulted from side effects that were
unavoidable,” which plainly indicates that Congress con
templated that there would be some instances in which a
vaccine’s side effects are “unavoidable” and other in
stances in which they are not. See supra, at 3. The major
ity’s premise that a vaccine’s side effects can always be
“avoid[ed] by use of a differently designed vaccine not
containing the harmful element,” ante, at 7, entirely ig
nores the fact that removing the “harmful element” will
often result in a less effective (or entirely ineffective)
vaccine. A vaccine, by its nature, ordinarily employs a
killed or weakened form of a bacteria or virus to stimulate
antibody production;13 removing that bacteria or virus
might remove the “harmful element,” but it would also
necessarily render the vaccine inert. As explained above,
the legislative history of the Vaccine Act and the cases
interpreting comment k make clear that a side effect is
——————
13 SeeAmerican Academy of Pediatrics, Questions and Answers about
Vaccine Ingredients (Oct. 2008), http://www.aap.org/immunization/
families/faq/Vaccineingredients.pdf (all Internet materials as visited
Feb. 18, 2011, and available in Clerk of Court’s case file).
Cite as: 562 U. S. ____ (2011) 15
SOTOMAYOR, J., dissenting
“unavoidable” for purposes of §22(b)(1) only where there is
no feasible alternative design that would eliminate the
side effect of the vaccine without compromising its cost
and utility. See supra, at 7. The majority’s premise—that
side effects stemming from a vaccine’s design are always
avoidable—is thus belied by the statutory text and legisla
tive history of §22(b)(1). And because its starting premise
is invalid, its conclusion—that the design of a vaccine is
not subject to challenge in a tort action—is also necessar
ily invalid.
The majority’s reading suffers from an even more fun
damental defect. If Congress intended to exempt vaccine
manufacturers categorically from all design defect liabil
ity, it more logically would have provided: “No vaccine
manufacturer shall be liable in a civil action for damages
arising from a vaccine-related injury or death associated
with the administration of a vaccine after October 1, 1988,
if the vaccine was properly prepared and was accompanied
by proper directions and warnings.” There would have
been no need for Congress to include the additional 13
words “the injury or death resulted from side effects that
were unavoidable even though.” See TRW Inc. v. An
drews, 534 U.S. 19, 31 (2001) (noting “cardinal principle
of statutory construction that a statute ought, upon the
whole, to be so construed that, if it can be prevented, no
clause, sentence, or word shall be superfluous, void, or
insignificant” (internal quotation marks omitted)).
In Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005),
this Court considered an analogous situation where an
express pre-emption provision stated that certain States
“ ‘shall not impose or continue in effect any requirements
for labeling or packaging in addition to or different from
those required under this subchapter.’ ” Id., at 436 (quot
ing 7 U.S. C. §136v(b) (2000 ed.)). The Bates Court
stated:
16 BRUESEWITZ v. WYETH LLC
SOTOMAYOR, J., dissenting
“Conspicuously absent from the submissions by [re
spondent] and the United States is any plausible al
ternative interpretation of ‘in addition to or different
from’ that would give that phrase meaning. Instead,
they appear to favor reading those words out of the
statute, which would leave the following: ‘Such State
shall not impose or continue in effect any require
ments for labeling or packaging.’ This amputated
version of [the statute] would no doubt have clearly
and succinctly commanded the pre-emption of all
state requirements concerning labeling. That Con
gress added the remainder of the provision is evidence
of its intent to draw a distinction between state label
ing requirements that are pre-empted and those that
are not.” 544 U.S., at 448–449.
As with the statutory interpretation rejected by this Court
in Bates, the majority’s interpretation of §22(b)(1) func
tionally excises 13 words out of the statute, including the
key term “unavoidable.” See Duncan v. Walker, 533 U.S.
167, 174 (2001) (“We are especially unwilling” to treat a
statutory term as surplusage “when the term occupies so
pivotal a place in the statutory scheme”). Although the
resulting “amputated version” of the statutory provision
“would no doubt have clearly and succinctly commanded
the pre-emption of all state” design defect claims, the fact
“[t]hat Congress added the remainder of the provision” is
strong evidence of its intent not to pre-empt design defect
claims categorically. Bates, 544 U.S., at 449; see also
American Home Prods. Corp. v. Ferrari, 284 Ga. 384, 393,
668 S.E.2d 236, 242 (2008) (“ ‘If Congress had intended to
deprive injured parties of a long available form of compen
sation, it surely would have expressed that intent more
clearly’ ” (quoting Bates, 544 U.S., at 449)), cert. pending,
No. 08–1120.
Strikingly, the majority concedes that its interpretation
Cite as: 562 U. S. ____ (2011) 17
SOTOMAYOR, J., dissenting
renders 13 words of the statute entirely superfluous. See
ante, at 12 (“The intervening passage (‘the injury or death
resulted from side effects that were unavoidable even
though’) is unnecessary. True enough”). Nevertheless, the
majority contends that “the rule against giving a portion of
text an interpretation which renders it superfluous . . .
applies only if verbosity and prolixity can be eliminated by
giving the offending passage, or the remainder of the text,
a competing interpretation.” Ibid. According to the major
ity, petitioners’ reading of §22(b)(1) renders the “even
though” clause superfluous because, to reach petitioners’
desired outcome, “[i]t would suffice to say ‘if the injury or
death resulted from side effects that were unavoidable’—
full stop.” Ibid. As explained above, however, the “even
though” clause establishes two additional prerequisites—
proper manufacturing and proper labeling—to qualify for
§22(b)(1)’s exemption from liability. Contrary to the ma
jority’s contention, then, the “even though” clause serves
an important function by limiting the scope of the pre
emption afforded by the preceding “if ” clause.14
The majority’s only other textual argument is based on
——————
14 In this manner, the “even though” clause functions in a “concessive
subordinat[ing]” fashion, ante, at 11, in accord with normal grammati
cal usage. According to the majority, however, the “even though” clause
“clarifies the word that precedes it” by “delineat[ing]” the conditions
that make a side effect “unavoidable” under the statute. Ante, at 7.
The majority’s interpretation hardly treats the clause as “concessive,”
and indeed strains the meaning of “even though.” In the majority’s
view, proper manufacturing and labeling are the sole prerequisites that
render a vaccine’s side effects unavoidable. Thus, an injurious side
effect is unavoidable because the vaccine was properly prepared and
labeled, not “even though” it was. The two conjunctions are not equiva
lent: The sentence “I am happy even though it is raining” can hardly be
read to mean that “I am happy because it is raining.” In any event, the
more fundamental point is that petitioners’ interpretation actually
gives meaning to the words “even though,” whereas the majority
concedes that its interpretation effectively reads those words entirely
out of the statute. See supra this page.
18 BRUESEWITZ v. WYETH LLC
SOTOMAYOR, J., dissenting
the expressio unius, exclusio alterius canon. According to
the majority, because blackletter products liability law
generally recognizes three different types of product de
fects, “[i]f all three were intended to be preserved, it would
be strange [for Congress] to mention specifically only
two”—namely, manufacturing and labeling defects in the
“even though” clause—“and leave the third to implication.”
Ante, at 8. The majority’s argument, however, ignores
that the default rule under the Vaccine Act is that state
law is preserved. As explained above, §22(a) expressly
provides that the “[g]eneral rule” is that “State law shall
apply to a civil action brought for damages for a vaccine
related injury or death.” 42 U.S. C. §300aa–22(a). Be
cause §22(a) already preserves state-law design defect
claims (to the extent the exemption in §22(b)(1) does not
apply), there was no need for Congress separately and
expressly to preserve design defect claims in §22(b)(1).
Indeed, Congress’ principal aim in enacting §22(b)(1) was
not to preserve manufacturing and labeling claims (those,
too, were already preserved by §22(a)), but rather, to
federalize comment k-type protection for “unavoidably
unsafe” vaccines. The “even though” clause simply func
tions to limit the applicability of that defense. The lack of
express language in §22(b)(1) specifically preserving de
sign defect claims thus cannot fairly be understood as
impliedly (and categorically) pre-empting such traditional
state tort claims, which had already been preserved by
§22(a).15
——————
15 This Court, moreover, has long operated on “the assumption that
the historic police powers of the States are not to be superseded by the
Federal Act unless that was the clear and manifest purpose of Con
gress.” Altria Group, Inc. v. Good, 555 U. S. ___, ___ (2008) (slip op., at
5) (internal quotation marks and alteration omitted). Given the long
history of state regulation of vaccines, see Brief for Petitioners 3–6, the
presumption provides an additional reason not to read §22(b)(1) as pre
empting all design defect claims, especially given Congress’ inclusion of
Cite as: 562 U. S. ____ (2011) 19
SOTOMAYOR, J., dissenting
The majority also suggests that if Congress wished to
preserve design defect claims, it could have simply pro
vided that manufacturers would be liable for “defective
manufacture, defective directions or warning, and defec
tive design.” Ante, at 8 (internal quotation marks omit
ted). Putting aside the fact that §22(a) already preserves
design defect claims (to the extent §22(b)(1) does not ap
ply), the majority’s proposed solution would not have fully
effectuated Congress’ intent. As the legislative history
makes clear, Congress used the term “unavoidable” to
effectuate its intent that the “principle in Comment K
regarding ‘unavoidably unsafe’ products . . . apply to the
vaccines covered in the bill.” 1986 Report 26; see also
1987 Report 691. At the time of the Vaccine Act’s enact
ment in 1986, at least one State had expressly rejected
comment k,16 while many others had not addressed the
applicability of comment k specifically to vaccines or ap
plied comment k to civil actions proceeding on a theory
other than strict liability (e.g., negligence17). A statute
——————
an express saving clause in the same statutory section, see 42 U.S. C.
§300aa–22(a), and its use of the conditional “if” clause in defining the
pre-emptive scope of the provision. See Bates v. Dow Agrosciences LLC,
544 U.S. 431, 449 (2005) (“In areas of traditional state regulation, we
assume that a federal statute has not supplanted state law unless
Congress has made such an intention clear and manifest” (internal
quotation marks omitted)).
16 See Collins v. Eli Lilly Co., 116 Wis. 2d 166, 197, 342 N.W.2d 37,
52 (1984) (“We conclude that the rule embodied in comment k is too
restrictive and, therefore, not commensurate with strict products
liability law in Wisconsin”). Collins did, however, “recognize that in
some exigent circumstances it may be necessary to place a drug on the
market before adequate testing can be done.” Ibid. It thus adopted a
narrower defense (based on “exigent circumstances”) than that recog
nized in other jurisdictions that had expressly adopted comment k.
17 See, e.g., Kearl, 172 Cal. App. 3d, at 831, n. 15, 218 Cal. Rptr., at
465, n. 15 (“[T]he unavoidably dangerous product doctrine merely
exempts the product from a strict liability design defect analysis; a
plaintiff remains free to pursue his design defect theory on the basis of
20 BRUESEWITZ v. WYETH LLC
SOTOMAYOR, J., dissenting
that simply stated that vaccine manufacturers would be
liable for “defective design” would be silent as to the avail
ability of a comment k-type defense for “unavoidably
unsafe” vaccines, and thus would not have fully achieved
Congress’ aim of extending greater liability protection
to vaccine manufacturers by providing comment k-type
protection in all civil actions as a matter of federal law.
B
The majority’s structural arguments fare no better than
its textual ones. The principal thrust of the majority’s
position is that, since nothing in the Vaccine Act or the
FDA’s regulations governing vaccines expressly mentions
design defects, Congress must have intended to remove
issues concerning the design of FDA-licensed vaccines
from the tort system. Ante, at 13. The flaw in that rea
soning, of course, is that the FDA’s silence on design de
fects existed long before the Vaccine Act was enacted.
Indeed, the majority itself concedes that the “FDA has
never even spelled out in regulations the criteria it uses to
decide whether a vaccine is safe and effective for its in
tended use.”18 Ibid. And yet it is undisputed that prior to
the Act, vaccine manufacturers had long been subject to
liability under state tort law for defective vaccine design.
That the Vaccine Act did not itself set forth a comprehen
sive regulatory scheme with respect to design defects is
thus best understood to mean not that Congress suddenly
decided to change course sub silentio and pre-empt a
——————
negligence”); Toner, 112 Idaho, at 340, 732 P. 2d, at 309–310 (“The
authorities universally agree that where a product is deemed unavoid
ably unsafe, the plaintiff is deprived of the advantage of a strict liabil
ity cause of action, but may proceed under a negligence cause of ac
tion”).
18 See 42 U.S. C. §262(a)(2)(C)(i)(I) (“The Secretary shall approve a
biologics license application . . . on the basis of a demonstration that . . .
the biological product that is the subject of the application is safe, pure,
and potent”).
Cite as: 562 U. S. ____ (2011) 21
SOTOMAYOR, J., dissenting
longstanding, traditional category of state tort law, but
rather, that Congress intended to leave the status quo
alone (except, of course, with respect to those aspects of
state tort law that the Act expressly altered). See 1987
Report 691 (“It is not the Committee’s intention to pre
clude court actions under applicable law. The Commit
tee’s intent at the time of considering the Act . . . was . . .
to leave otherwise applicable law unaffected, except as
expressly altered by the Act”).
The majority also suggests that Congress necessarily
intended to pre-empt design defect claims since the aim of
such tort suits is to promote the development of improved
designs and provide compensation for injured individuals,
and the Vaccine Act “provides other means for achieving
both effects”—most notably through the no-fault compen
sation program and the National Vaccine Program. Ante,
at 14, and nn. 57–60 (citing 42 U.S. C. §§300aa–1, 300aa–
2(a)(1)–(3), 300aa–3, 300aa–25(b), 300aa–27(a)(1)). But
the majority’s position elides a significant difference be
tween state tort law and the federal regulatory scheme.
Although the Vaccine Act charges the Secretary of Health
and Human Services with the obligation to “promote the
development of childhood vaccines” and “make or assure
improvements in . . . vaccines, and research on vaccines,”
§300aa–27(a), neither the Act nor any other provision of
federal law places a legal duty on vaccine manufacturers
to improve the design of their vaccines to account for
scientific and technological advances. Indeed, the FDA
does not condition approval of a vaccine on it being the
most optimally designed among reasonably available
alternatives, nor does it (or any other federal entity) en
sure that licensed vaccines keep pace with technological
and scientific advances.19 Rather, the function of ensuring
——————
19 See, e.g., Hurley v. Lederle Labs., 863 F.2d 1173, 1177 (CA5 1988)
(“[T]he FDA is a passive agency: it considers whether to approve
22 BRUESEWITZ v. WYETH LLC
SOTOMAYOR, J., dissenting
that vaccines are optimally designed in light of existing
science and technology has traditionally been left to the
States through the imposition of damages for design de
fects. Cf. Bates, 544 U.S., at 451 (“ ‘[T]he specter of dam
age actions may provide manufacturers with added dy
namic incentives to continue to keep abreast of all possible
injuries stemming from use of their product[s] so as to
forestall such actions through product improvement’ ”);
Wyeth v. Levine, 555 U. S. ___, ___ (2009) (slip op., at 22–
——————
vaccine designs only if and when manufacturers come forward with a
proposal”); Jones v. Lederle Labs., 695 F. Supp. 700, 711 (EDNY 1988)
(“[T]he agency takes the drugs and manufacturers as it finds them.
While its goal is to oversee inoculation with the best possible vaccine, it
is limited to reviewing only those drugs submitted by various manufac
turers, regardless of their flaws”). Although the FDA has authority
under existing regulations to revoke a manufacturer’s biologics licenses,
that authority can be exercised only where (as relevant here) “[t]he
licensed product is not safe and effective for all of its intended uses.” 21
CFR §601.5(b)(1)(vi) (2010); see §600.3(p) (defining “safety” as “relative
freedom from harmful effect to persons affected, directly or indirectly,
by a product when prudently administered, taking into consideration
the character of the product in relation to the condition of the recipient
at the time”). The regulation does not authorize the FDA to revoke a
biologics license for a manufacturer’s failure to adopt an optimal
vaccine design in light of existing science and technology. See Conk, Is
There a Design Defect in the Restatement (Third) of Torts: Products
Liability? 109 Yale L. J. 1087, 1128–1129 (1999–2000) (“The FDA does
not claim to review products for optimal design . . . . FDA review thus
asks less of drug . . . manufacturers than the common law of products
liability asks of other kinds of manufacturers”). At oral argument,
counsel for amicus United States stated that the Centers for Disease
Control and Prevention (CDC) routinely performs comparative analyses
of vaccines that are already on the market. See Tr. of Oral Arg. 44–45;
id., at 52–53 (describing CDC’s comparison of Sabin and Salk polio
vaccines). Neither the United States nor any of the parties, however,
has represented that CDC examines whether a safer alternative
vaccine could have been designed given practical and scientific limits,
the central inquiry in a state tort law action for design defect. CDC
does not issue biologics licenses, moreover, and thus has no authority to
require a manufacturer to adopt a different vaccine design.
Cite as: 562 U. S. ____ (2011) 23
SOTOMAYOR, J., dissenting
23) (noting that the FDA has “traditionally regarded state
law as a complementary form of drug regulation” as
“[s]tate tort suits uncover unknown drug hazards and
provide incentives for drug manufacturers to disclose
safety risks promptly”).20 The importance of the States’
traditional regulatory role is only underscored by the
unique features of the vaccine market, in which there are
“only one or two manufacturers for a majority of the vac
cines listed on the routine childhood immunization sched
ule.” Brief for Respondent 55. The normal competitive
forces that spur innovation and improvements to existing
product lines in other markets thus operate with less force
in the vaccine market, particularly for vaccines that have
already been released and marketed to the public. Absent
a clear statutory mandate to the contrary, there is no
reason to think that Congress intended in the vaccine
context to eliminate the traditional incentive and deter
rence functions served by state tort liability in favor of a
federal regulatory scheme providing only carrots and no
sticks.21 See Levine, 555 U. S., at ___ (slip op., at 18) (“The
——————
20 Indeed, we observed in Levine that the FDA is perpetually under
staffed and underfunded, see 555 U. S., at ___, n. 11 (slip op., at 22,
n. 11), and the agency has been criticized in the past for its slow re
sponse in failing to withdraw or warn about potentially dangerous
products, see, e.g., L. Leveton, H. Sox, & M. Soto, Institute of Medicine,
HIV and the Blood Supply: An Analysis of Crisis Decisionmaking
(1995) (criticizing FDA response to transmission of AIDS through blood
supply). These practical shortcomings reinforce the conclusion that
“state law offers an additional, and important, layer of consumer
protection that complements FDA regulation.” Levine, 555 U. S., at ___
(slip op., at 23).
21 The majority mischaracterizes my position as expressing a general
“skeptic[ism] of preemption unless the congressional substitute oper
ate[s] like the tort system.” Ante, at 16. Congress could, of course,
adopt a regulatory regime that operates differently from state tort
systems, and such a difference is not necessarily a reason to question
Congress’ pre-emptive intent. In the specific context of the Vaccine Act,
however, the relevant point is that this Court should not lightly assume
24 BRUESEWITZ v. WYETH LLC
SOTOMAYOR, J., dissenting
case for federal pre-emption is particularly weak where
Congress has indicated its awareness of the operation of
state law in a field of federal interest, and has nonetheless
decided to stand by both concepts and to tolerate whatever
tension there is between them.” (internal quotation marks
and alteration omitted)).
III
In enacting the Vaccine Act, Congress established a
carefully wrought federal scheme that balances the com
peting interests of vaccine-injured persons and vaccine
manufacturers. As the legislative history indicates, the
Act addressed “two overriding concerns”: “(a) the inade
quacy—from both the perspective of vaccine-injured per
sons as well as vaccine manufacturers—of the current
approach to compensating those who have been damaged
by a vaccine; and (b) the instability and unpredictability of
the childhood vaccine market.” 1986 Report 7. When
viewed in the context of the Vaccine Act as a whole,
§22(b)(1) is just one part of a broader statutory scheme
that balances the need for compensating vaccine-injured
children with added liability protections for vaccine manu
facturers to ensure a stable childhood vaccine market.
The principal innovation of the Act was the creation of
the no-fault compensation program—a scheme funded
entirely through an excise tax on vaccines.22 Through that
——————
that Congress intended sub silentio to displace a longstanding species
of state tort liability where, as here, Congress specifically included an
express saving clause preserving state law, there is a long history of
state-law regulation of vaccine design, and pre-emption of state law
would leave an important regulatory function—i.e., ensuring optimal
vaccine design—entirely unaddressed by the congressional substitute.
22 The majority’s suggestion that “vaccine manufacturers fund from
their sales” the compensation program is misleading. Ante, at 15.
Although the manufacturers nominally pay the tax, the amount of the
tax is specifically included in the vaccine price charged to purchasers.
See CDC Vaccine Price List (Feb. 15, 2011), http://www.cdc.gov/
Cite as: 562 U. S. ____ (2011) 25
SOTOMAYOR, J., dissenting
program, Congress relieved vaccine manufacturers of the
burden of compensating victims of vaccine-related injuries
in the vast majority of cases23—an extremely significant
economic benefit that “functionally creat[es] a valuable
insurance policy for vaccine-related injuries.” Reply Brief
for Petitioners 10. The structure and legislative history,
moreover, point clearly to Congress’ intention to divert
would-be tort claimants into the compensation program,
rather than eliminate a longstanding category of tradi
tional tort claims. See 1986 Report 13 (“The Committee
anticipates that the speed of the compensation program,
the low transaction costs of the system, the no-fault na
ture of the required findings, and the relative certainty
and generosity of the system’s awards will divert a signifi
cant number of potential plaintiffs from litigation”). In
deed, although complete pre-emption of tort claims would
have eliminated the principal source of the “unpredictabil
ity” in the vaccine market, Congress specifically chose not
to pre-empt state tort claims categorically. See 42 U.S. C.
§300aa–22(a) (providing as a “[g]eneral rule” that “State
law shall apply to a civil action brought for damages for a
vaccine-related injury or death”). That decision reflects
Congress’ recognition that court actions are essential
——————
vaccines/programs/vfc/cdc-vac-price-list.htm. Accordingly, the only way
the vaccine manufacturers can be said to actually “fund” the compensa
tion program is if the cost of the excise tax has an impact on the num
ber of vaccines sold by the vaccine manufacturer. The majority points
to no evidence that the excise tax—which ordinarily amounts to 75
cents per dose, 26 U.S. C. §4131(b)—has any impact whatsoever on the
demand for vaccines.
23 See Brief for United States as Amicus Curiae 28 (“Department of
Justice records indicate that 99.8% of successful Compensation Pro
gram claimants have accepted their awards, foregoing any tort reme
dies against vaccine manufacturers”); S. Plotkin, W. Orenstein, & P.
Offit, Vaccines 1673 (5th ed. 2008) (noting that “[v]irtually all . . .
petitioners, even those who were not awarded compensation” under the
compensation program, choose to accept the program’s determination).
26 BRUESEWITZ v. WYETH LLC
SOTOMAYOR, J., dissenting
because they provide injured persons with significant
procedural tools—including, most importantly, civil dis
covery—that are not available in administrative proceed
ings under the compensation program. See §§300aa–
12(d)(2)(E), (d)(3). Congress thus clearly believed there
was still an important function to be played by state tort
law.
Instead of eliminating design defect liability entirely,
Congress enacted numerous measures to reduce manufac
turers’ liability exposure, including a limited regulatory
compliance presumption of adequate warnings, see
§300aa–22(b)(2), elimination of claims based on failure
to provide direct warnings to patients, §300aa–22(c), a
heightened standard for punitive damages, §300aa–
23(d)(2), and, of course, immunity from damages for “un
avoidable” side effects, §300aa–22(b)(1). Considered in
light of the Vaccine Act as a whole, §22(b)(1)’s exemption
from liability for unavoidably unsafe vaccines is just one
part of a broader statutory scheme that reflects Congress’
careful balance between providing adequate compensation
for vaccine-injured children and conferring substantial
benefits on vaccine manufacturers to ensure a stable and
predictable childhood vaccine supply.
The majority’s decision today disturbs that careful
balance based on a bare policy preference that it is better
“to leave complex epidemiological judgments about vaccine
design to the FDA and the National Vaccine Program
rather than juries.” Ante, at 15.24 To be sure, reasonable
minds can disagree about the wisdom of having juries
weigh the relative costs and benefits of a particular vac
cine design. But whatever the merits of the majority’s
——————
24 JUSTICE BREYER’s separate concurrence is even more explicitly
policy driven, reflecting his own preference for the “more expert judg
ment” of federal agencies over the “less expert” judgment of juries.
Ante, at 5.
Cite as: 562 U. S. ____ (2011) 27
SOTOMAYOR, J., dissenting
policy preference, the decision to bar all design defect
claims against vaccine manufacturers is one that Congress
must make, not this Court.25 By construing §22(b)(1) to
——————
25 Respondent notes that there are some 5,000 petitions alleging a
causal link between certain vaccines and autism spectrum disorders
that are currently pending in an omnibus proceeding in the Court of
Federal Claims (Vaccine Court). Brief for Respondent 56–57. Accord
ing to respondent, a ruling that §22(b)(1) does not pre-empt design
defect claims could unleash a “crushing wave” of tort litigation that
would bankrupt vaccine manufacturers and deplete vaccine supply.
Id., at 28. This concern underlies many of the policy arguments in
respondent’s brief and appears to underlie the majority and concurring
opinions in this case. In the absence of any empirical data, however,
the prospect of an onslaught of autism-related tort litigation by claim
ants denied relief by the Vaccine Court seems wholly speculative. As
an initial matter, the special masters in the autism cases have thus far
uniformly rejected the alleged causal link between vaccines and autism.
See Brief for American Academy of Pediatrics et al. as Amici Curiae
20–21, n. 4 (collecting cases). To be sure, those rulings do not necessar
ily mean that no such causal link exists, cf. Brief for United States as
Amicus Curiae 29 (noting that injuries have been added to the Vaccine
Injury Table for existing vaccines), or that claimants will not ultimately
be able to prove such a link in a state tort action, particularly with the
added tool of civil discovery. But these rulings do highlight the sub
stantial hurdles to recovery a claimant faces. See Schafer v. American
Cyanamid Co., 20 F.3d 1, 5 (CA1 1994) (“[A] petitioner to whom the
Vaccine Court gives nothing may see no point in trying to overcome tort
law’s yet more serious obstacles to recovery”). Trial courts, moreover,
have considerable experience in efficiently handling and disposing of
meritless products liability claims, and decades of tort litigation (in
cluding for design defect) in the prescription-drug context have not led
to shortages in prescription drugs. Despite the doomsday predictions of
respondent and the various amici cited by the concurrence, ante, at 6–7,
the possibility of a torrent of meritless lawsuits bankrupting manufac
turers and causing vaccine shortages seems remote at best. More
fundamentally, whatever the merits of these policy arguments, the
issue in this case is what Congress has decided, and as to that question,
the text, structure, and legislative history compel the conclusion that
Congress intended to leave the courthouse doors open for children who
have suffered severe injuries from defectively designed vaccines. The
majority’s policy-driven decision to the contrary usurps Congress’ role
and deprives such vaccine-injured children of a key remedy that Con
gress intended them to have.
28 BRUESEWITZ v. WYETH LLC
SOTOMAYOR, J., dissenting
pre-empt all design defect claims against vaccine manu
facturers for covered vaccines, the majority’s decision
leaves a regulatory vacuum in which no one—neither the
FDA nor any other federal agency, nor state and federal
juries—ensures that vaccine manufacturers adequately
take account of scientific and technological advancements.
This concern is especially acute with respect to vaccines
that have already been released and marketed to the
public. Manufacturers, given the lack of robust competi
tion in the vaccine market, will often have little or no
incentive to improve the designs of vaccines that are al
ready generating significant profit margins. Nothing in
the text, structure, or legislative history remotely suggests
that Congress intended that result.
I respectfully dissent | Vaccine manufacturers have long been subject to a legal duty, rooted in basic principles of products liability law, to improve the designs of their vaccines in light of advances in science and technology. Until today, that duty was enforceable through a traditional state-law tort action for defective design. In holding that of the National Childhood Vaccine Injury Act of (Vaccine Act or Act), 42 U.S. C. pre-empts all design defect claims for injuries stemming from vaccines covered under the Act, the Court imposes its own bare policy preference over the considered judgment of Congress. In doing so, the Court excises 13 words from the statutory text, mis construes the Act’s legislative history, and disturbs the careful balance Congress struck between compensating vaccine-injured children and stabilizing the childhood vaccine market. Its decision leaves a regulatory vacuum in which no one ensures that vaccine manufacturers ade quately take account of scientific and technological ad vancements when designing or distributing their products. Because nothing in the text, structure, or legislative his tory of the Vaccine Act remotely suggests that Congress intended such a result, I respectfully dissent. 2 BRUESEWITZ v. WYETH LLC SOTOMAYOR, J., dissenting I A Section 22 of the Vaccine Act provides “[s]tandards of responsibility” to govern civil actions against vaccine manufacturers. 42 U.S. C. Section 22(a) sets forth the “[g]eneral rule” that “State law shall apply to a civil action brought for damages for a vaccine-related injury or death.” This baseline rule that state law applies is subject to three narrow exceptions, one of which, is at issue in this case. Section 22(b)(1) provides: “No vaccine manufacturer shall be liable in a civil ac tion for damages arising from a vaccine-related injury or death associated with the administration of a vac cine after October 1, if the injury or death re sulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.” The provision contains two key clauses: “if the injury or death resulted from side effects that were unavoidable” (the “if ” clause), and “even though the vaccine was prop erly prepared and was accompanied by proper directions and warnings” (the “even though” clause). Blackletter products liability law generally recognizes three different types of product defects: design defects, manufacturing defects, and labeling defects (e.g., failure to warn).1 The reference in the “even though” clause to a “properly prepared” vaccine “accompanied by proper direc tions and warnings” is an obvious reference to two such defects—manufacturing and labeling defects. The plain terms of the “even though” clause thus indicate that —————— 1 W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 69 Cite as: 62 U. S. (2011) 3 SOTOMAYOR, J., dissenting applies only where neither kind of defect is pre sent. Because is invoked by vaccine manufactur ers as a defense to tort liability, it follows that the “even though” clause requires a vaccine manufacturer in each civil action to demonstrate that its vaccine is free from manufacturing and labeling defects to fall within the liability exemption of2 Given that the “even though” clause requires the ab sence of manufacturing and labeling defects, the “if ” clause’s reference to “side effects that were unavoidable” must refer to side effects caused by something other than manufacturing and labeling defects. The only remaining kind of product defect recognized under traditional prod ucts liability law is a design defect. Thus, “side effects that were unavoidable” must refer to side effects caused by a vaccine’s design that were “unavoidable.” Because uses the conditional term “if,” moreover, the text plainly implies that some side effects stemming from a vaccine’s design are “unavoidable,” while others are avoid able. See Webster’s Third New International Dictionary 1124 (2002) (“if ” means “in the event that,” “so long as,” or “on condition that”). Accordingly, because the “if ” clause (like the “even though” clause) sets forth a condition to invoke ’s defense to tort liability, Congress must also have intended a vaccine manufacturer to demonstrate in each civil action that the particular side effects of a vaccine’s design were “unavoidable.” Congress’ use of conditional “if” clauses in two other provisions of the Vaccine Act supports the conclusion that requires an inquiry in each case in which a manufacturer seeks to invoke the provision’s exception to —————— 2 See ; Brown v. Earthboard Sports USA, Inc., )). 4 BRUESEWITZ v. WYETH LLC SOTOMAYOR, J., dissenting state tort liability. In Congress created a pre sumption that, for purposes of “a vaccine shall be presumed to be accompanied by proper directions and warnings if the vaccine manufacturer shows that it com plied in all material respects with” federal labeling re quirements. 42 U.S. C. Similarly, in Congress created an exemption from punitive damages “[i]f the manufacturer shows that it complied, in all material respects,” with applicable federal laws, unless it engages in “fraud,” “intentional and wrongful withholding of information” from federal regulators, or “other criminal or illegal activity.” It would be highly anomalous for Congress to use a condi tional “if ” clause in and 23(d)(2) to require a specific inquiry in each case while using the same condi tional “if ” clause in to denote a categorical ex emption from liability. Cf. (“[A] legislative body generally uses a particular word with a consistent meaning in a given context”). Indeed, when Congress intends to pre-empt design defect claims categorically, it does so using categorical (e.g., “all”) and/or declarative language (e.g., “shall”), rather than a conditional term (“if ”). For example, in a related context, Congress has authorized the Secretary of Health and Human Services to designate a vaccine designed to prevent a pandemic or epidemic as a “covered countermeasure.” 42 U.S. C. (i)(1), (i)(7)(A)(i). With respect to such “covered countermea sure[s],” Congress provided that subject to certain excep tions, “a covered person shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure,” (emphasis added), including specifically claims relating to Cite as: 62 U. S. (2011) SOTOMAYOR, J., dissenting “the design” of the countermeasure, The plain text and structure of the Vaccine Act thus compel the conclusion that pre-empts some—but not all—design defect claims. Contrary to the majority’s and respondent’s categorical reading, petitioners correctly contend that, where a plaintiff has proved that she has suffered an injury resulting from a side effect caused by a vaccine’s design, a vaccine manufacturer may invoke ’s liability exemption only if it demonstrates that the side effect stemming from the particular vaccine’s design is “unavoidable,” and that the vaccine is otherwise free from manufacturing and labeling defects.3 B The legislative history confirms petitioners’ interpreta tion of and sheds further light on its pre-emptive scope. The House Energy and Commerce Committee Report accompanying the Vaccine Act, H. R. Rep. No. 99– 908, pt. 1 (hereinafter Report), explains in relevant part: “Subsection (b)—Unavoidable Adverse Side Effects; Direct Warnings.—This provision sets forth the prin ciple contained in Comment K of Section A of the Restatement of Torts (Second) that a vaccine manu facturer should not be liable for injuries or deaths re sulting from unavoidable side effects even though the vaccine was properly prepared and accompanied by proper directions and warnings. “The Committee has set forth Comment K in this bill because it intends that the principle in Comment K regarding ‘unavoidably unsafe’ products, i.e., those products which in the present state of human skill and knowledge cannot be made safe, apply to the vac —————— 3 This leaves the question of what precisely means by “un avoidable” side effects, which I address in the next section. 6 BRUESEWITZ v. WYETH LLC SOTOMAYOR, J., dissenting cines covered in the bill and that such products not be the subject of liability in the tort system.” at 2– 26. The Report expressly adopts comment k of of the Restatement of Torts (Second) (1963–1964) (hereinafter Restatement), which provides that “unavoidably unsafe” products—i.e., those that “in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use”—are not defective.4 As “[a]n outstanding example” of an “[u]navoidably unsafe” product, comment k cites “the vaccine for the Pasteur treatment of rabies, which not uncommonly leads to very serious and damaging consequences when it is injected”; —————— 4 Comment k provides as follows: “Unavoidably unsafe products. There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. An outstanding example is the vaccine for the Pasteur treatment of rabies, which not uncommonly leads to very serious and damaging consequences when it is injected. Since the disease itself invariably leads to a dreadful death, both the marketing and the use of the vaccine are fully justified, notwithstanding the unavoidable high degree of risk which they involve. Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except to physicians, or under the pre scription of a physician. It is also true in particular of many new or experimental drugs as to which, because of lack of time and opportunity for sufficient medical experience, there can be no assurance of safety, or perhaps even of purity of ingredients, but such experience as there is justifies the marketing and use of the drug notwithstanding a medically recognizable risk. The seller of such products, again with the qualifica tion that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.” Restatement 33–34. Cite as: 62 U. S. (2011) 7 SOTOMAYOR, J., dissenting “[s]ince the disease itself invariably leads to a dreadful death, both the marketing and the use of the vaccine are fully justified, notwithstanding the unavoidable high degree of risk which they involve.” Comment k thus provides that “seller[s]” of “[u]navoidably unsafe” products are “not to be held to strict liability” provided that such products “are properly prepared and marketed, and proper warning is given.” As the Report explains, Congress intended that the “principle in Comment K regarding ‘unavoidably unsafe’ products” apply to the vaccines covered in the bill. Report 26. That intent, in turn, is manifested in the plain text of —in particular, Congress’ use of the word “unavoidable,” as well as the phrases “properly prepared” and “accompanied by proper directions and warnings,” which were taken nearly verbatim from comment k. 42 U.S. C. see Restatement 33–34 (“Such a[n unavoidably unsafe] product, properly prepared, and accompanied by proper directions and warning, is not defective”). By the time of the Vaccine Act’s enactment in numerous state and federal courts had interpreted comment k to mean that a product is “unavoidably unsafe” when, given proper manufacture and labeling, no feasible alternative design would reduce the safety risks without compromising the product’s cost and utility. Given Con —————— See, e.g., Smith ex rel. (“[A] prescription drug is not ‘unavoidably unsafe’ when its dangers can be eliminated through design changes that do not unduly affect its cost or utility”); 464 (198) (“unavoidability” turns on “(i) whether the product was designed to minimize—to the extent scientifically knowable at the time it was distributed—the risk inherent in the product, and (ii) the avail ability of any alternative product that would have as effectively accomplished the full intended purpose of the subject product”), disap proved in part by ; Belle Bonfils Memorial Blood 8 BRUESEWITZ v. WYETH LLC SOTOMAYOR, J., dissenting gress’ expressed intent to codify the “principle in Comment K,” Report 26, the term “unavoidable” in is best understood as a term of art, which incorporates the commonly understood meaning of “unavoidably unsafe” products under comment k at the time of the Act’s enact ment in See McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 342 (1991) (“[W]e assume that when a statute uses a term [of art], Congress intended it to have its established meaning”); Morissette v. United States, 342 U.S. 246, 263 (192) (same).6 Similarly, courts applying —————— 122 (Colo. 1983) (“[A]pplicability of comment k depends upon the co existence of several factors,” including that “the product’s benefits must not be achievable in another manner; and the risk must be unavoidable under the present state of knowledge”); see also 1 L. Frumer & M. Friedman, Products Liability pp. 8–277 to 8–278 (2010) (comment k applies “only to defects in design,” and there “must be no feasible alternative design which on balance accomplishes the subject product’s purpose with a lesser risk” (internal quotation marks omit ted)). To be sure, a number of courts at the time of the Vaccine Act’s enactment had interpreted comment k to preclude design defect claims categorically for certain kinds of products, see Hill v. Searle Labs., 884 F.2d 1064, 1068 (CA8 1989) (collecting cases), but as indicated by the sources cited above, the courts that had construed comment k to apply on a case-specific basis generally agreed on the basic elements of what constituted an “unavoidably unsafe” product. See also n. 8, infra. The majority’s suggestion that “judges who must rule on motions to dismiss, motions for summary judgment, and motions for judgment as a matter of law” are incapable of adjudicating claims alleging “unavoidable” side effects, ante, –8, n. 3, is thus belied by the experience of the many courts that had adjudicated such claims for years by the time of the Vaccine Act’s enactment. 6 The majority refuses to recognize that “unavoidable” is a term of art derived from comment k, suggesting that “ ‘[u]navoidable’ is hardly a rarely used word.” Ante, at 10. In fact, however, “unavoidable” is an extremely rare word in the relevant context. It appears exactly once (i.e., in in the entirety of Title 42 of the U. S. Code (“Public Health and Welfare”), which governs, inter alia, Social Secu rity, see 42 U.S. C. et seq., Medicare, see et seq., and several other of the Federal Government’s largest entitlement programs. The singular rarity in which Congress used the term supports the conclu Cite as: 62 U. S. (2011) 9 SOTOMAYOR, J., dissenting comment k had long required manufacturers invoking the defense to demonstrate that their products were not only “unavoidably unsafe” but also properly manufactured and labeled.7 By requiring “prope[r] prepar[ation]” and “proper directions and warnings” in Congress plainly intended to incorporate these additional comment k requirements. The Report thus confirms petitioners’ interpreta tion of The Report makes clear that “side effects that were unavoidable” in refers to side effects stemming from a vaccine’s design that were “unavoidable.” By explaining what Congress meant by the term “un avoidable,” moreover, the Report also confirms that whether a side effect is “unavoidable” for purposes of involves a specific inquiry in each case as to whether the vaccine “in the present state of human skill and knowledge cannot be made safe,” Report 26—i.e., whether a feasible alternative design existed that would have eliminated the adverse side effects of the vaccine without compromising its cost and utility. See Brief for Kenneth W. Starr et al. as Amici Curiae 14–1 (“If a par ticular plaintiff could show that her injury at issue was avoidable through the use of a feasible alternative design for a specific vaccine, then she would satisfy the plain language of the statute, because she would have demonstrated that the side effects were not unavoidable”). Finally, the Report confirms that the “even though” clause is properly read to establish two additional prerequisites— proper manufacturing and proper labeling—to qualify for —————— sion that “unavoidable” is a term of art. 7 See, e.g., (CA1 1981); (CA7 1981); ; ; Feldman v. Lederle Labs., 97 N. J. 429, 448, ; see also 10 BRUESEWITZ v. WYETH LLC SOTOMAYOR, J., dissenting ’s liability exemption.8 In addition to the Report, one other piece of the Act’s legislative history provides further confirmation of the petitioners’ textual reading of When Con gress enacted the Vaccine Act in it did not initially include a source of payment for the no-fault compensation program the Act established. The Act thus “made the compensation program and accompanying tort reforms contingent on the enactment of a tax to provide funding —————— 8 Respondent suggests an alternative reading of the Report. According to respondent, “the principle in Comment K” is simply that of nonliability for “unavoidably unsafe” products, and thus Congress’ stated intent in the Report to apply the “principle in Comment K” to “the vaccines covered in the bill” means that Congress viewed the covered vaccines as a class to be “ ‘unavoidably unsafe.’ ” Report 2–26; Brief for Respondent 42. The concurrence makes a similar argument. Ante, at 1–2 (opinion of BREYER, J.). This interpretation finds some support in the Report, which states that “if [injured individuals] cannot demonstrate under applicable law either that a vaccine was improperly prepared or that it was accompanied by im proper directions or inadequate warnings [they] should pursue recom pense in the compensation system, not the tort system.” Report 26. It also finds some support in the pre-Vaccine Act case law, which reflected considerable disagreement in the courts over “whether com ment k applies to pharmaceutical products across the board or only on a case-by-case basis.” Ausness, Unavoidably Unsafe Products and Strict Products Liability: What Liability Rule Should be Applied to the Sellers of Pharmaceutical Products? 78 Ky. L. J. 70, 708, and n. 11 (collecting cases). This interpretation, however, is under mined by the fact that Congress has never directed the Food and Drug Administration (FDA) or any other federal agency to review vaccines for optimal vaccine design, see infra, at 20–22, and n. 19, and thus it seems highly unlikely that Congress intended to eliminate the tradi tional mechanism for such review (i.e., design defect liability), particu larly given its express retention of state tort law in the Vaccine Act, see 42 U.S. C. In any event, to the extent there is ambiguity as to how precisely Congress intended the “principle in Comment K” to apply to the covered vaccines, that ambiguity is explicitly resolved in petitioners’ favor by the House Energy and Commerce Committee Report, H. R. Rep. No. 100–391, pt. 1, pp. 690–691 (hereinafter Report). See infra this page and 11–12. Cite as: 62 U. S. (2011) 11 SOTOMAYOR, J., dissenting for the compensation.” Report 690. In Con gress passed legislation to fund the compensation pro gram. The House Energy and Commerce Committee Report9 accompanying that legislation specifically stated that “the codification of Comment (k) of The Restatement (Second) of Torts was not intended to decide as a matter of law the circumstances in which a vaccine should be deemed unavoidably unsafe.” The Committee noted that “[a]n amendment to establish that a manu facturer’s failure to develop [a] safer vaccine was not grounds for liability was rejected by the Committee during its original consideration of the Act.” In light of that rejection, the Committee emphasized that “there should be no misunderstanding that the Act undertook to decide as a matter of law whether vaccines were unavoidably unsafe or not,” and that “[t]his question is left to the courts to determine in accordance with applicable law.” To be sure, postenactment legislative history created by a subsequent Congress is ordinarily a hazardous basis from which to infer the intent of the enacting Congress. See (SCALIA, J., concurring in part). But unlike ordinary postenactment legislative history, which is justifiably given little or no weight, the Report reflects the intent of the Congress that enacted the funding legislation necessary to give operative effect to the principal provi sions of the Vaccine Act, including10 Congress in —————— 9 The Third Circuit’s opinion below expressed uncertainty as to whether the Report was authored by the House Budget Commit tee or the House Energy and Commerce Committee. See 20 (2009). As petitioners explain, although the Budget Committee compiled and issued the Report, the Energy and Commerce Committee wrote and approved the relevant language. Title IV of the Report, entitled “Committee on Energy and Commerce,” comprises “two Com mittee Prints approved by the Committee on Energy and Commerce for inclusion in the forthcoming reconciliation bill.” Report 377, 380. 10 The majority suggests that the legislation creating the fund 12 BRUESEWITZ v. WYETH LLC SOTOMAYOR, J., dissenting had a number of options before it, including adopting an entirely different compensation scheme, as the Reagan administration was proposing;11 establishing different limitations on tort liability, including eliminating design defect liability, as pharmaceutical industry leaders were advocating;12 or not funding the compensation program at all, which would have effectively nullified the relevant portions of the Act. Because the tort reforms in the Act, including had no operative legal effect unless and until Congress provided funding for the com pensation program, the views of the Congress that enacted that funding legislation are a proper and, indeed, authori tative guide to the meaning of Those views, as reflected in the Report, provide unequivocal confir —————— ing mechanism is akin to appropriations legislation and that giving weight to the legislative history of such legislation “would set a danger ous precedent.” Ante, at 18. The difference, of course, is that appro priations legislation ordinarily funds congressional enactments that already have operative legal effect; in contrast, operation of the tort reforms in the Act, including was expressly conditioned on the enactment of a separate tax to fund the compensation program. See Accordingly, this Court’s general reluc tance to view appropriations legislation as modifying substantive legislation, see, e.g., has no bearing here. 11 See Report 700 (describing the administration’s alternative proposal). 12 See, e.g., Hearings on Funding of the Childhood Vaccine Program before the Subcommittee on Select Revenue Measures of the House Committee on Ways and Means, 100th Cong., 1st Sess., 8 (“[T]he liability provisions of the Act should be amended to assure that manufacturers will not be found liable in the tort system if they have fully complied with applicable government regulations. In par ticular, manufacturers should not face liability under a ‘design defect’ theory in cases where plaintiffs challenge the decisions of public health authorities and federal regulators that the licensed vaccines are the best available way to protect children from deadly diseases” (statement of Robert B. Johnson, President, Lederle Laboratories Division, Ameri can Cyanamid Co.)). Cite as: 62 U. S. (2011) 13 SOTOMAYOR, J., dissenting mation of petitioners’ reading of In sum, the text, structure, and legislative history of the Vaccine Act are fully consistent with petitioners’ reading of Accordingly, I believe exempts vaccine manufacturers from tort liability only upon a showing by the manufacturer in each case that the vaccine was properly manufactured and labeled, and that the side effects stemming from the vaccine’s design could not have been prevented by a feasible alternative design that would have eliminated the adverse side effects without compro mising the vaccine’s cost and utility. II In contrast to the interpretation of set forth above, the majority’s interpretation does considerable vio lence to the statutory text, misconstrues the legislative history, and draws the wrong conclusions from the struc ture of the Vaccine Act and the broader federal scheme regulating vaccines. A As a textual matter, the majority’s interpretation of is fundamentally flawed in three central re spects. First, the majority’s categorical reading rests on a faulty and untenable premise. Second, its reading func tionally excises 13 words from the statutory text, including the key term “unavoidable.” And third, the majority en tirely ignores the Vaccine Act’s default rule preserving state tort law. To begin, the majority states that “[a] side effect of a vaccine could always have been avoidable by use of a differently designed vaccine not containing the harmful element.” Ante, From that premise, the majority concludes that the statute must mean that “the design of the vaccine is a given, not subject to question in the tort action,” because construing the statute otherwise would 14 BRUESEWITZ v. WYETH LLC SOTOMAYOR, J., dissenting render a nullity. A tort claimant, accord ing to the majority, will always be able to point to a differ ently designed vaccine not containing the “harmful ele ment,” and if that were sufficient to show that a vaccine’s side effects were not “unavoidable,” the statute would pre empt nothing. The starting premise of the majority’s interpretation, however, is fatally flawed. Although in the most literal sense, as the majority notes, a side effect can always be avoided “by use of a differently designed vaccine not con taining the harmful element,” ib this interpretation of “unavoidable” would effectively read the term out of the statute, and Congress could not have intended that result. Indeed, specifically uses the conditional phrase “if the injury or death resulted from side effects that were unavoidable,” which plainly indicates that Congress con templated that there would be some instances in which a vaccine’s side effects are “unavoidable” and other in stances in which they are not. See The major ity’s premise that a vaccine’s side effects can always be “avoid[ed] by use of a differently designed vaccine not containing the harmful element,” ante, entirely ig nores the fact that removing the “harmful element” will often result in a less effective (or entirely ineffective) vaccine. A vaccine, by its nature, ordinarily employs a killed or weakened form of a bacteria or virus to stimulate antibody production;13 removing that bacteria or virus might remove the “harmful element,” but it would also necessarily render the vaccine inert. As explained above, the legislative history of the Vaccine Act and the cases interpreting comment k make clear that a side effect is —————— 13 SeeAmerican Academy of Pediatrics, Questions and Answers about Vaccine Ingredients http://www.aap.org/immunization/ families/faq/Vaccineingredients.pdf (all Internet materials as visited Feb. 18, 2011, and available in Clerk of Court’s case file). Cite as: 62 U. S. (2011) 1 SOTOMAYOR, J., dissenting “unavoidable” for purposes of only where there is no feasible alternative design that would eliminate the side effect of the vaccine without compromising its cost and utility. See The majority’s premise—that side effects stemming from a vaccine’s design are always avoidable—is thus belied by the statutory text and legisla tive history of And because its starting premise is invalid, its conclusion—that the design of a vaccine is not subject to challenge in a tort action—is also necessar ily invalid. The majority’s reading suffers from an even more fun damental defect. If Congress intended to exempt vaccine manufacturers categorically from all design defect liabil ity, it more logically would have provided: “No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, if the vaccine was properly prepared and was accompanied by proper directions and warnings.” There would have been no need for Congress to include the additional 13 words “the injury or death resulted from side effects that were unavoidable even though.” See TRW (noting “cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant” (internal quotation marks omitted)). In 44 U.S. 4 this Court considered an analogous situation where an express pre-emption provision stated that certain States “ ‘shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.’ ” (quot ing 7 U.S. C. (2000 ed.)). The Court stated: 16 BRUESEWITZ v. WYETH LLC SOTOMAYOR, J., dissenting “Conspicuously absent from the submissions by [re spondent] and the United States is any plausible al ternative interpretation of ‘in addition to or different from’ that would give that phrase meaning. Instead, they appear to favor reading those words out of the statute, which would leave the following: ‘Such State shall not impose or continue in effect any require ments for labeling or packaging.’ This amputated version of [the statute] would no doubt have clearly and succinctly commanded the pre-emption of all state requirements concerning labeling. That Con gress added the remainder of the provision is evidence of its intent to draw a distinction between state label ing requirements that are pre-empted and those that are not.” –. As with the statutory interpretation rejected by this Court in the majority’s interpretation of func tionally excises 13 words out of the statute, including the key term “unavoidable.” See Duncan v. Walker, 33 U.S. 167, 174 (“We are especially unwilling” to treat a statutory term as surplusage “when the term occupies so pivotal a place in the statutory scheme”). Although the resulting “amputated version” of the statutory provision “would no doubt have clearly and succinctly commanded the pre-emption of all state” design defect claims, the fact “[t]hat Congress added the remainder of the provision” is strong evidence of its intent not to pre-empt design defect claims categorically. ; see also American Home Prods. 284 Ga. (“ ‘If Congress had intended to deprive injured parties of a long available form of compen sation, it surely would have expressed that intent more clearly’ ” (quoting )), cert. pending, No. 08–1120. Strikingly, the majority concedes that its interpretation Cite as: 62 U. S. (2011) 17 SOTOMAYOR, J., dissenting renders 13 words of the statute entirely superfluous. See ante, at 12 (“The intervening passage (‘the injury or death resulted from side effects that were unavoidable even though’) is unnecessary. True enough”). Nevertheless, the majority contends that “the rule against giving a portion of text an interpretation which renders it superfluous applies only if verbosity and prolixity can be eliminated by giving the offending passage, or the remainder of the text, a competing interpretation.” According to the major ity, petitioners’ reading of renders the “even though” clause superfluous because, to reach petitioners’ desired outcome, “[i]t would suffice to say ‘if the injury or death resulted from side effects that were unavoidable’— full stop.” As explained above, however, the “even though” clause establishes two additional prerequisites— proper manufacturing and proper labeling—to qualify for ’s exemption from liability. Contrary to the ma jority’s contention, then, the “even though” clause serves an important function by limiting the scope of the pre emption afforded by the preceding “if ” clause.14 The majority’s only other textual argument is based on —————— 14 In this manner, the “even though” clause functions in a “concessive subordinat[ing]” fashion, ante, at 11, in accord with normal grammati cal usage. According to the majority, however, the “even though” clause “clarifies the word that precedes it” by “delineat[ing]” the conditions that make a side effect “unavoidable” under the statute. Ante, The majority’s interpretation hardly treats the clause as “concessive,” and indeed strains the meaning of “even though.” In the majority’s view, proper manufacturing and labeling are the sole prerequisites that render a vaccine’s side effects unavoidable. Thus, an injurious side effect is unavoidable because the vaccine was properly prepared and labeled, not “even though” it was. The two conjunctions are not equiva lent: The sentence “I am happy even though it is raining” can hardly be read to mean that “I am happy because it is raining.” In any event, the more fundamental point is that petitioners’ interpretation actually gives meaning to the words “even though,” whereas the majority concedes that its interpretation effectively reads those words entirely out of the statute. See this page. 18 BRUESEWITZ v. WYETH LLC SOTOMAYOR, J., dissenting the expressio unius, exclusio alterius canon. According to the majority, because blackletter products liability law generally recognizes three different types of product de fects, “[i]f all three were intended to be preserved, it would be strange [for Congress] to mention specifically only two”—namely, manufacturing and labeling defects in the “even though” clause—“and leave the third to implication.” Ante, at 8. The majority’s argument, however, ignores that the default rule under the Vaccine Act is that state law is preserved. As explained above, expressly provides that the “[g]eneral rule” is that “State law shall apply to a civil action brought for damages for a vaccine related injury or death.” 42 U.S. C. Be cause already preserves state-law design defect claims (to the extent the exemption in does not apply), there was no need for Congress separately and expressly to preserve design defect claims in Indeed, Congress’ principal aim in enacting was not to preserve manufacturing and labeling claims (those, too, were already preserved by ), but rather, to federalize comment k-type protection for “unavoidably unsafe” vaccines. The “even though” clause simply func tions to limit the applicability of that defense. The lack of express language in specifically preserving de sign defect claims thus cannot fairly be understood as impliedly (and categorically) pre-empting such traditional state tort claims, which had already been preserved by1 —————— 1 This Court, moreover, has long operated on “the assumption that the historic police powers of the States are not to be superseded by the Federal Act unless that was the clear and manifest purpose of Con gress.” Altria Group, Inc. v. Good, U. S. (slip op., at ) (internal quotation marks and alteration omitted). Given the long history of state regulation of vaccines, see Brief for Petitioners 3–6, the presumption provides an additional reason not to read as pre empting all design defect claims, especially given Congress’ inclusion of Cite as: 62 U. S. (2011) 19 SOTOMAYOR, J., dissenting The majority also suggests that if Congress wished to preserve design defect claims, it could have simply pro vided that manufacturers would be liable for “defective manufacture, defective directions or warning, and defec tive design.” Ante, at 8 (internal quotation marks omit ted). Putting aside the fact that already preserves design defect claims (to the extent does not ap ply), the majority’s proposed solution would not have fully effectuated Congress’ intent. As the legislative history makes clear, Congress used the term “unavoidable” to effectuate its intent that the “principle in Comment K regarding ‘unavoidably unsafe’ products apply to the vaccines covered in the bill.” Report 26; see also Report 691. At the time of the Vaccine Act’s enact ment in at least one State had expressly rejected comment k,16 while many others had not addressed the applicability of comment k specifically to vaccines or ap plied comment k to civil actions proceeding on a theory other than strict liability (e.g., negligence17). A statute —————— an express saving clause in the same statutory section, see 42 U.S. C. and its use of the conditional “if” clause in defining the pre-emptive scope of the provision. See 44 U.S. 4, (“In areas of traditional state regulation, we assume that a federal statute has not supplanted state law unless Congress has made such an intention clear and manifest” (internal quotation marks omitted)). 16 See 2 (“We conclude that the rule embodied in comment k is too restrictive and, therefore, not commensurate with strict products liability law in Wisconsin”). Collins did, however, “recognize that in some exigent circumstances it may be necessary to place a drug on the market before adequate testing can be done.” It thus adopted a narrower defense (based on “exigent circumstances”) than that recog nized in other jurisdictions that had expressly adopted comment k. 17 See, e.g., 172 Cal. App. 3d, at 8, n. 1, 218 Cal. Rptr., at 46, n. 1 (“[T]he unavoidably dangerous product doctrine merely exempts the product from a strict liability design defect analysis; a plaintiff remains free to pursue his design defect theory on the basis of 20 BRUESEWITZ v. WYETH LLC SOTOMAYOR, J., dissenting that simply stated that vaccine manufacturers would be liable for “defective design” would be silent as to the avail ability of a comment k-type defense for “unavoidably unsafe” vaccines, and thus would not have fully achieved Congress’ aim of extending greater liability protection to vaccine manufacturers by providing comment k-type protection in all civil actions as a matter of federal law. B The majority’s structural arguments fare no better than its textual ones. The principal thrust of the majority’s position is that, since nothing in the Vaccine Act or the FDA’s regulations governing vaccines expressly mentions design defects, Congress must have intended to remove issues concerning the design of FDA-licensed vaccines from the tort system. Ante, at 13. The flaw in that rea soning, of course, is that the FDA’s silence on design de fects existed long before the Vaccine Act was enacted. Indeed, the majority itself concedes that the “FDA has never even spelled out in regulations the criteria it uses to decide whether a vaccine is safe and effective for its in tended use.”18 And yet it is undisputed that prior to the Act, vaccine manufacturers had long been subject to liability under state tort law for defective vaccine design. That the Vaccine Act did not itself set forth a comprehen sive regulatory scheme with respect to design defects is thus best understood to mean not that Congress suddenly decided to change course sub silentio and pre-empt a —————— negligence”); 112 Idaho, 40, 732 P. 2d, 09–0 (“The authorities universally agree that where a product is deemed unavoid ably unsafe, the plaintiff is deprived of the advantage of a strict liabil ity cause of action, but may proceed under a negligence cause of ac tion”). 18 See 42 U.S. C. (“The Secretary shall approve a biologics license application on the basis of a demonstration that the biological product that is the subject of the application is safe, pure, and potent”). Cite as: 62 U. S. (2011) 21 SOTOMAYOR, J., dissenting longstanding, traditional category of state tort law, but rather, that Congress intended to leave the status quo alone (except, of course, with respect to those aspects of state tort law that the Act expressly altered). See Report 691 (“It is not the Committee’s intention to pre clude court actions under applicable law. The Commit tee’s intent at the time of considering the Act was to leave otherwise applicable law unaffected, except as expressly altered by the Act”). The majority also suggests that Congress necessarily intended to pre-empt design defect claims since the aim of such tort suits is to promote the development of improved designs and provide compensation for injured individuals, and the Vaccine Act “provides other means for achieving both effects”—most notably through the no-fault compen sation program and the National Vaccine Program. Ante, at 14, and nn. 7–60 (citing 42 U.S. C. 300aa– 2(a)(1)–(3), 300aa–3, 300aa–2(b), 300aa–27(a)(1)). But the majority’s position elides a significant difference be tween state tort law and the federal regulatory scheme. Although the Vaccine Act charges the Secretary of Health and Human Services with the obligation to “promote the development of childhood vaccines” and “make or assure improvements in vaccines, and research on vaccines,” neither the Act nor any other provision of federal law places a legal duty on vaccine manufacturers to improve the design of their vaccines to account for scientific and technological advances. Indeed, the FDA does not condition approval of a vaccine on it being the most optimally designed among reasonably available alternatives, nor does it (or any other federal entity) en sure that licensed vaccines keep pace with technological and scientific advances.19 Rather, the function of ensuring —————— 19 See, e.g., (“[T]he FDA is a passive agency: it considers whether to approve 22 BRUESEWITZ v. WYETH LLC SOTOMAYOR, J., dissenting that vaccines are optimally designed in light of existing science and technology has traditionally been left to the States through the imposition of damages for design de fects. Cf. (“ ‘[T]he specter of dam age actions may provide manufacturers with added dy namic incentives to continue to keep abreast of all possible injuries stemming from use of their product[s] so as to forestall such actions through product improvement’ ”); Wyeth v. Levine, U. S. (2009) (slip op., at 22– —————— vaccine designs only if and when manufacturers come forward with a proposal”); (“[T]he agency takes the drugs and manufacturers as it finds them. While its goal is to oversee inoculation with the best possible vaccine, it is limited to reviewing only those drugs submitted by various manufac turers, regardless of their flaws”). Although the FDA has authority under existing regulations to revoke a manufacturer’s biologics licenses, that authority can be exercised only where (as relevant here) “[t]he licensed product is not safe and effective for all of its intended uses.” 21 CFR (2010); see (defining “safety” as “relative freedom from harmful effect to persons affected, directly or indirectly, by a product when prudently administered, taking into consideration the character of the product in relation to the condition of the recipient at the time”). The regulation does not authorize the FDA to revoke a biologics license for a manufacturer’s failure to adopt an optimal vaccine design in light of existing science and technology. See Conk, Is There a Design Defect in the Restatement (Third) of Torts: Products Liability? 109 Yale L. J. 1087, 1128–1129 (1999–2000) (“The FDA does not claim to review products for optimal design FDA review thus asks less of drug manufacturers than the common law of products liability asks of other kinds of manufacturers”). At oral argument, counsel for amicus United States stated that the Centers for Disease Control and Prevention (CDC) routinely performs comparative analyses of vaccines that are already on the market. See Tr. of Oral Arg. 44–4; at 2–3 (describing CDC’s comparison of Sabin and Salk polio vaccines). Neither the United States nor any of the parties, however, has represented that CDC examines whether a safer alternative vaccine could have been designed given practical and scientific limits, the central inquiry in a state tort law action for design defect. CDC does not issue biologics licenses, moreover, and thus has no authority to require a manufacturer to adopt a different vaccine design. Cite as: 62 U. S. (2011) 23 SOTOMAYOR, J., dissenting 23) (noting that the FDA has “traditionally regarded state law as a complementary form of drug regulation” as “[s]tate tort suits uncover unknown drug hazards and provide incentives for drug manufacturers to disclose safety risks promptly”).20 The importance of the States’ traditional regulatory role is only underscored by the unique features of the vaccine market, in which there are “only one or two manufacturers for a majority of the vac cines listed on the routine childhood immunization sched ule.” Brief for Respondent The normal competitive forces that spur innovation and improvements to existing product lines in other markets thus operate with less force in the vaccine market, particularly for vaccines that have already been released and marketed to the public. Absent a clear statutory mandate to the contrary, there is no reason to think that Congress intended in the vaccine context to eliminate the traditional incentive and deter rence functions served by state tort liability in favor of a federal regulatory scheme providing only carrots and no sticks.21 See Levine, U. S., at (slip op., at 18) (“The —————— 20 Indeed, we observed in Levine that the FDA is perpetually under staffed and underfunded, see U. S., at n. 11 (slip op., at 22, n. 11), and the agency has been criticized in the past for its slow re sponse in failing to withdraw or warn about potentially dangerous products, see, e.g., L. Leveton, H. Sox, & M. Soto, Institute of Medicine, HIV and the Blood Supply: An Analysis of Crisis Decisionmaking (199) (criticizing FDA response to transmission of AIDS through blood supply). These practical shortcomings reinforce the conclusion that “state law offers an additional, and important, layer of consumer protection that complements FDA regulation.” Levine, U. S., at (slip op., at 23). 21 The majority mischaracterizes my position as expressing a general “skeptic[ism] of preemption unless the congressional substitute oper ate[s] like the tort system.” Ante, at 16. Congress could, of course, adopt a regulatory regime that operates differently from state tort systems, and such a difference is not necessarily a reason to question Congress’ pre-emptive intent. In the specific context of the Vaccine Act, however, the relevant point is that this Court should not lightly assume 24 BRUESEWITZ v. WYETH LLC SOTOMAYOR, J., dissenting case for federal pre-emption is particularly weak where Congress has indicated its awareness of the operation of state law in a field of federal interest, and has nonetheless decided to stand by both concepts and to tolerate whatever tension there is between them.” (internal quotation marks and alteration omitted)). III In enacting the Vaccine Act, Congress established a carefully wrought federal scheme that balances the com peting interests of vaccine-injured persons and vaccine manufacturers. As the legislative history indicates, the Act addressed “two overriding concerns”: “(a) the inade quacy—from both the perspective of vaccine-injured per sons as well as vaccine manufacturers—of the current approach to compensating those who have been damaged by a vaccine; and (b) the instability and unpredictability of the childhood vaccine market.” Report 7. When viewed in the context of the Vaccine Act as a whole, is just one part of a broader statutory scheme that balances the need for compensating vaccine-injured children with added liability protections for vaccine manu facturers to ensure a stable childhood vaccine market. The principal innovation of the Act was the creation of the no-fault compensation program—a scheme funded entirely through an excise tax on vaccines.22 Through that —————— that Congress intended sub silentio to displace a longstanding species of state tort liability where, as here, Congress specifically included an express saving clause preserving state law, there is a long history of state-law regulation of vaccine design, and pre-emption of state law would leave an important regulatory function—i.e., ensuring optimal vaccine design—entirely unaddressed by the congressional substitute. 22 The majority’s suggestion that “vaccine manufacturers fund from their sales” the compensation program is misleading. Ante, at 1. Although the manufacturers nominally pay the tax, the amount of the tax is specifically included in the vaccine price charged to purchasers. See CDC Vaccine Price List (Feb. 1, 2011), http://www.cdc.gov/ Cite as: 62 U. S. (2011) 2 SOTOMAYOR, J., dissenting program, Congress relieved vaccine manufacturers of the burden of compensating victims of vaccine-related injuries in the vast majority of cases23—an extremely significant economic benefit that “functionally creat[es] a valuable insurance policy for vaccine-related injuries.” Reply Brief for Petitioners 10. The structure and legislative history, moreover, point clearly to Congress’ intention to divert would-be tort claimants into the compensation program, rather than eliminate a longstanding category of tradi tional tort claims. See Report 13 (“The Committee anticipates that the speed of the compensation program, the low transaction costs of the system, the no-fault na ture of the required findings, and the relative certainty and generosity of the system’s awards will divert a signifi cant number of potential plaintiffs from litigation”). In deed, although complete pre-emption of tort claims would have eliminated the principal source of the “unpredictabil ity” in the vaccine market, Congress specifically chose not to pre-empt state tort claims categorically. See 42 U.S. C. (providing as a “[g]eneral rule” that “State law shall apply to a civil action brought for damages for a vaccine-related injury or death”). That decision reflects Congress’ recognition that court actions are essential —————— vaccines/programs/vfc/cdc-vac-price-list.htm. Accordingly, the only way the vaccine manufacturers can be said to actually “fund” the compensa tion program is if the cost of the excise tax has an impact on the num ber of vaccines sold by the vaccine manufacturer. The majority points to no evidence that the excise tax—which ordinarily amounts to 7 cents per dose, 26 U.S. C. §41(b)—has any impact whatsoever on the demand for vaccines. 23 See Brief for United States as Amicus Curiae 28 (“Department of Justice records indicate that 99.8% of successful Compensation Pro gram claimants have accepted their awards, foregoing any tort reme dies against vaccine manufacturers”); S. Plotkin, W. Orenstein, & P. Offit, Vaccines 1673 (noting that “[v]irtually all petitioners, even those who were not awarded compensation” under the compensation program, choose to accept the program’s determination). 26 BRUESEWITZ v. WYETH LLC SOTOMAYOR, J., dissenting because they provide injured persons with significant procedural tools—including, most importantly, civil dis covery—that are not available in administrative proceed ings under the compensation program. See 12(d)(2)(E), (d)(3). Congress thus clearly believed there was still an important function to be played by state tort law. Instead of eliminating design defect liability entirely, Congress enacted numerous measures to reduce manufac turers’ liability exposure, including a limited regulatory compliance presumption of adequate warnings, see elimination of claims based on failure to provide direct warnings to patients, a heightened standard for punitive damages, 23(d)(2), and, of course, immunity from damages for “un avoidable” side effects, Considered in light of the Vaccine Act as a whole, ’s exemption from liability for unavoidably unsafe vaccines is just one part of a broader statutory scheme that reflects Congress’ careful balance between providing adequate compensation for vaccine-injured children and conferring substantial benefits on vaccine manufacturers to ensure a stable and predictable childhood vaccine supply. The majority’s decision today disturbs that careful balance based on a bare policy preference that it is better “to leave complex epidemiological judgments about vaccine design to the FDA and the National Vaccine Program rather than juries.” Ante, at 1.24 To be sure, reasonable minds can disagree about the wisdom of having juries weigh the relative costs and benefits of a particular vac cine design. But whatever the merits of the majority’s —————— 24 JUSTICE BREYER’s separate concurrence is even more explicitly policy driven, reflecting his own preference for the “more expert judg ment” of federal agencies over the “less expert” judgment of juries. Ante, at Cite as: 62 U. S. (2011) 27 SOTOMAYOR, J., dissenting policy preference, the decision to bar all design defect claims against vaccine manufacturers is one that Congress must make, not this Court.2 By construing to —————— 2 Respondent notes that there are some000 petitions alleging a causal link between certain vaccines and autism spectrum disorders that are currently pending in an omnibus proceeding in the Court of Federal Claims (Vaccine Court). Brief for Respondent 6–7. Accord ing to respondent, a ruling that does not pre-empt design defect claims could unleash a “crushing wave” of tort litigation that would bankrupt vaccine manufacturers and deplete vaccine supply. This concern underlies many of the policy arguments in respondent’s brief and appears to underlie the majority and concurring opinions in this case. In the absence of any empirical data, however, the prospect of an onslaught of autism-related tort litigation by claim ants denied relief by the Vaccine Court seems wholly speculative. As an initial matter, the special masters in the autism cases have thus far uniformly rejected the alleged causal link between vaccines and autism. See Brief for American Academy of Pediatrics et al. as Amici Curiae 20–21, n. 4 (collecting cases). To be sure, those rulings do not necessar ily mean that no such causal link exists, cf. Brief for United States as Amicus Curiae 29 (noting that injuries have been added to the Vaccine Injury Table for existing vaccines), or that claimants will not ultimately be able to prove such a link in a state tort action, particularly with the added tool of civil discovery. But these rulings do highlight the sub stantial hurdles to recovery a claimant faces. See (“[A] petitioner to whom the Vaccine Court gives nothing may see no point in trying to overcome tort law’s yet more serious obstacles to recovery”). Trial courts, moreover, have considerable experience in efficiently handling and disposing of meritless products liability claims, and decades of tort litigation (in cluding for design defect) in the prescription-drug context have not led to shortages in prescription drugs. Despite the doomsday predictions of respondent and the various amici cited by the concurrence, ante, at 6–7, the possibility of a torrent of meritless lawsuits bankrupting manufac turers and causing vaccine shortages seems remote at best. More fundamentally, whatever the merits of these policy arguments, the issue in this case is what Congress has decided, and as to that question, the text, structure, and legislative history compel the conclusion that Congress intended to leave the courthouse doors open for children who have suffered severe injuries from defectively designed vaccines. The majority’s policy-driven decision to the contrary usurps Congress’ role and deprives such vaccine-injured children of a key remedy that Con gress intended them to have. 28 BRUESEWITZ v. WYETH LLC SOTOMAYOR, J., dissenting pre-empt all design defect claims against vaccine manu facturers for covered vaccines, the majority’s decision leaves a regulatory vacuum in which no one—neither the FDA nor any other federal agency, nor state and federal juries—ensures that vaccine manufacturers adequately take account of scientific and technological advancements. This concern is especially acute with respect to vaccines that have already been released and marketed to the public. Manufacturers, given the lack of robust competi tion in the vaccine market, will often have little or no incentive to improve the designs of vaccines that are al ready generating significant profit margins. Nothing in the text, structure, or legislative history remotely suggests that Congress intended that result. I respectfully dissent |
Justice Stevens | concurring | false | Renne v. Geary | 1991-06-17T00:00:00 | null | https://www.courtlistener.com/opinion/112627/renne-v-geary/ | https://www.courtlistener.com/api/rest/v3/clusters/112627/ | 1,991 | 1990-109 | 1 | 6 | 3 | The dissenting opinions in this case illustrate why the Court should decline review of the merits of the case in its present posture. JUSTICE MARSHALL concludes that Article II, § 6(b), of the California Constitution is invalid on its face because it is overbroad. JUSTICE WHITE, on the other hand, concludes that respondents' complaint may not be construed as including a facial overbreadth challenge, and that § 6(b) is valid insofar as it is applied to petitioners' policy of refusing to include endorsements in candidates' campaign mailings.
Given the very real possibility that the outcome of this litigation depends entirely on whether the complaint should be construed as making a facial challenge or an as-applied challengefor it is apparent that JUSTICE WHITE and JUSTICE MARSHALL may both be interpreting the merits of their respective First Amendment questions correctlyand given the difficulty of determining whether respondents' complaint against petitioners' policy of deleting party endorsements from candidates' statements may fairly be construed as including a facial overbreadth challenge, the Court is surely wise in refusing to address the merits on the present record.
Two other prudential concerns weigh against deciding the merits of this case. First, I am not sure that respondents' challenge to petitioners' policy of deleting party endorsements is ripe for review. If such a challenge had been brought by a political party or a party central committee, and if the complaint had alleged that these organizations wanted to endorse, support, or oppose a candidate for nonpartisan office but were inhibited from doing so because of the constitutional provision, the case would unquestionably be ripe. Cf. Eu v. San Francisco Cty. Democratic Central Comm., 489 U.S. 214 (1989). Because I do not believe an individual member of a party or committee may sue on behalf of such an organization, see Bender v. Williamsport Area School Dist., 475 U.S. 534, 544 (1986), however, no such plaintiff presenting a ripe controversy is before us. Alternatively, if this action *326 had been brought by a candidate who had been endorsed by a political party and who sought to include that endorsement in his or her candidate's statement, we would also be confronted with a ripe controversy.
Unlike such scenarios, however, the respondents in this case are voters. They claim, based on petitioners' representations, that § 6(b) of the State Constitution forms the basis for petitioners' policy of deleting party endorsements from candidates' mailed statements. But there are at least two hurdles that these respondents must overcome before their claim would be ripe for judicial review. First, they must prove that political parties would endorse certain candidates if § 6(b) were repealed or invalidated. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756, and n. 14 (1976) (allowing listeners of potential speech to bring an anticipatory challenge where the parties stipulate that "a speaker exists"). Arguably, respondents have met this hurdle by offering several affidavits of members of party central committees stating that the committees plan to endorse candidates for nonpartisan office and to seek to have those endorsements publicized. See, e. g., App. 15. Second, respondents must prove that specific candidates for nonpartisan office would seek to mention the party endorsements in their statements if petitioners' policy of deleting such endorsements were declared invalid (moreover, to prove injury to their interest as informed voters, respondents would perhaps also have to allege that they would not otherwise know about the endorsements if the endorsements are not included in mailed candidates' statements). This latter hurdle has not, in my opinion, been met by respondents in such a way as to ensure that we are confronted by a definite and ripe controversy.
Moreover, I am troubled by the redressability issues inherent in this case. Respondents' complaint has challenged § 6(b) of the State Constitution, but it has not challenged the validity of § 10012 of the California Elections Code. That section *327 plainly prohibits the inclusion of the party affiliation of candidates in nonpartisan elections, and unquestionably would provide an adequate basis for petitioners' challenged policy even if the constitutional prohibition against endorsements were invalidated. Even if we were to strike down § 6(b) as overbroad, then, it is unclear whether respondents' alleged injury would be redressed.
These three unsettled issuesinvolving whether a facial overbreadth challenge may be construed to have been made, whether respondents' challenge is ripe, and whether their injury is redressablecoalesce to convince me that review of the merits of respondents' challenge is best left for another day and another complaint. No substantial hardship would accrue from a dismissal of respondents' action without prejudice, and the courts would benefit from a more precise articulation of a current and definite controversy. I therefore join the Court's opinion and judgment ordering the lower courts to dismiss the action without prejudice. | The dissenting opinions in this case illustrate why the Court should decline review of the merits of the case in its present posture. JUSTICE MARSHALL concludes that Article II, 6(b), of the California Constitution is invalid on its face because it is overbroad. JUSTICE WHITE, on the other hand, concludes that respondents' complaint may not be construed as including a facial overbreadth challenge, and that 6(b) is valid insofar as it is applied to petitioners' policy of refusing to include endorsements in candidates' campaign mailings. Given the very real possibility that the outcome of this litigation depends entirely on whether the complaint should be construed as making a facial challenge or an as-applied challengefor it is apparent that JUSTICE WHITE and JUSTICE MARSHALL may both be interpreting the merits of their respective First Amendment questions correctlyand given the difficulty of determining whether respondents' complaint against petitioners' policy of deleting party endorsements from candidates' statements may fairly be construed as including a facial overbreadth challenge, the Court is surely wise in refusing to address the merits on the present record. Two other prudential concerns weigh against deciding the merits of this case. First, I am not sure that respondents' challenge to petitioners' policy of deleting party endorsements is ripe for review. If such a challenge had been brought by a political party or a party central committee, and if the complaint had alleged that these organizations wanted to endorse, support, or oppose a candidate for nonpartisan office but were inhibited from doing so because of the constitutional provision, the case would unquestionably be ripe. Cf. Because I do not believe an individual member of a party or committee may sue on behalf of such an organization, see however, no such plaintiff presenting a ripe controversy is before us. Alternatively, if this action *326 had been brought by a candidate who had been endorsed by a political party and who sought to include that endorsement in his or her candidate's statement, we would also be confronted with a ripe controversy. Unlike such scenarios, however, the respondents in this case are voters. They claim, based on petitioners' representations, that 6(b) of the State Constitution forms the basis for petitioners' policy of deleting party endorsements from candidates' mailed statements. But there are at least two hurdles that these respondents must overcome before their claim would be ripe for judicial review. First, they must prove that political parties would endorse certain candidates if 6(b) were repealed or invalidated. See Virginia State Bd. of Arguably, respondents have met this hurdle by offering several affidavits of members of party central committees stating that the committees plan to endorse candidates for nonpartisan office and to seek to have those endorsements publicized. See, e. g., App. 15. Second, respondents must prove that specific candidates for nonpartisan office would seek to mention the party endorsements in their statements if petitioners' policy of deleting such endorsements were declared invalid (moreover, to prove injury to their interest as informed voters, respondents would perhaps also have to allege that they would not otherwise know about the endorsements if the endorsements are not included in mailed candidates' statements). This latter hurdle has not, in my opinion, been met by respondents in such a way as to ensure that we are confronted by a definite and ripe controversy. Moreover, I am troubled by the redressability issues inherent in this case. Respondents' complaint has challenged 6(b) of the State Constitution, but it has not challenged the validity of 10012 of the California Elections Code. That section *327 plainly prohibits the inclusion of the party affiliation of candidates in nonpartisan elections, and unquestionably would provide an adequate basis for petitioners' challenged policy even if the constitutional prohibition against endorsements were invalidated. Even if we were to strike down 6(b) as overbroad, then, it is unclear whether respondents' alleged injury would be redressed. These three unsettled issuesinvolving whether a facial overbreadth challenge may be construed to have been made, whether respondents' challenge is ripe, and whether their injury is redressablecoalesce to convince me that review of the merits of respondents' challenge is best left for another day and another complaint. No substantial hardship would accrue from a dismissal of respondents' action without prejudice, and the courts would benefit from a more precise articulation of a current and definite controversy. I therefore join the Court's opinion and judgment ordering the lower courts to dismiss the action without prejudice. |
Justice Stevens | dissenting | false | Schweiker v. Gray Panthers | 1981-06-25T00:00:00 | null | https://www.courtlistener.com/opinion/110547/schweiker-v-gray-panthers/ | https://www.courtlistener.com/api/rest/v3/clusters/110547/ | 1,981 | 1980-135 | 1 | 6 | 3 | The scope of the issue presented in this difficult case is confined to the situation in which a married applicant for Medicaid benefits is institutionalized. I believe that issue can be best understood by focusing our attention on an institutionalized applicant who is totally dependent for financial support on a spouse who is employed and who continues to live in what had been their joint home. Arguably the relevant statutory language[1] might authorize the eligibility determination *51 to be made in three ways: (1) none of the employed spouse's income should be deemed available to the institutionalized spouse unless it is actually contributed; (2) all of that income should be deemed available; (3) some, but not all, may be counted in determining the eligibility of the institutionalized spouse.
Respondent persuaded the District Court that the first reading was required by the word "available" in subpart (B) of § 1902 (a) (17), and by the legislative history's emphasis on preventing the States from assuming the "availability of *52 income which may not, in fact, be available."[2] For the reasons stated by the Court, I agree that this is not a correct reading of the statute.[3] The Court of Appeals decision, however, cannot be reversed on that basis. That court did not hold that deeming was never permissible; rather, it invalidated regulations which permitted virtually unlimited deeming. I am persuaded that the Court of Appeals was correct in its holding that the statute does place significant limits on the amount of income that may be deemed available to the institutionalized spouse.
The Court of Appeals set aside the Secretary's regulations because in promulgating those regulations the Secretary had failed to consider all relevant factors as required by Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402. Relying on the same legislative history as did the District Court, the Court of Appeals reasoned that the statutory scheme contemplated that cohabiting spouses would support each other but that Congress intended a flexible approach to apply in situations in which the basic assumption of cohabitation could not be made.[4] The court thus held that the Secretary should *53 have taken into account the impact of institutionalization of one spouse on what previously constituted a single economic unit[5] and the potential disruption of the family caused by deeming.[6]
In revising her regulations after the Court of Appeals' decision, then Secretary Harris specifically considered the factors *54 discussed by the Court of Appeals.[7] Although the Secretary was required by the Court of Appeals mandate to reconsider the regulation in light of the factors discussed by the court, the court's mandate did not specify the contents of the new regulations.[8] Nevertheless, the Secretary concluded that deeming in § 209 (b) States should be limited in both "duration and amount."[9] She cogently explained her conclusion that "deeming has several adverse impacts on beneficiaries":
"The institutionalized spouse may lose medicaid eligibility if the deemed amount is large enough to bring his or her income level over the State's standards. If the deemed amount is not actually contributed but the State's payments to the facility nevertheless are reduced by that amount, the individual may be asked to leave the *55 institution. With respect to the spouse in the community, the use of deeming may also be unfair. This occurs principally because, in section 1902 (f) States, the amounts that are protected for the noninstitutionalized spouse's maintenance may be set at 1972 levels. Those levels may be insufficient in light of the current cost of living. This may force the noninstitutionalized spouse either to refuse to pay the `deemed' amount (possibly resulting in the institutionalized spouse being required to leave the facility), or to try to live at levels that are inadequate for subsistence.
"Moreover, when income is `deemed,' the spouse has less of an incentive actually to contribute the amount than if relative responsibility laws are used, because deeming has an adverse effect on the institutionalized individual, whereas relative responsibility laws affect the spouse in the community by requiring him or her to make support payments. These potentially severe impacts lead us to conclude that deeming should be limited in both duration and amount."[10]
In my opinion, the Court of Appeals was correct in construing the statutory mandate that "only such income and *56 resources as are . . . available to the applicant" may be taken into account in determining eligibility to require consideration of the impact of institutionalization of one spouse on what was previously a single economic unit. The Secretary's consideration of that factor led her to conclude that deeming "should be limited in both duration and amount." The regulations that had been in effect prior to the Court of Appeals decision permitted a State to deem, for an unlimited period, the wage earner's entire income except for an amount that might have been sufficient to supply basic living requirements in 1972. Because the wage earner and the institutionalized spouse were no longer living together and thereby sharing expenses, and because inflation in the intervening years increased the amount of those expenses, the regulations allowed a State to deem more income than could realistically be considered "available."[11] This consequence was attributable to the failure of the Secretary to give adequate consideration to the factors identified by the Court of Appeals.
I believe the Court of Appeals was correct in perceiving this defect in the regulations and in concluding that the Secretary failed to give consideration to a relevant factor required by the statute. I would therefore affirm the judgment of the Court of Appeals.
| The scope of the issue presented in this difficult case is confined to the situation in which a married applicant for Medicaid benefits is institutionalized. I believe that issue can be best understood by focusing our attention on an institutionalized applicant who is totally dependent for financial support on a spouse who is employed and who continues to live in what had been their joint home. Arguably the relevant statutory language[1] might authorize the eligibility determination *51 to be made in three ways: (1) none of the employed spouse's income should be deemed available to the institutionalized spouse unless it is actually contributed; (2) all of that income should be deemed available; (3) some, but not all, may be counted in determining the eligibility of the institutionalized spouse. Respondent persuaded the District Court that the first reading was required by the word "available" in subpart (B) of 1902 (a) (17), and by the legislative history's emphasis on preventing the States from assuming the "availability of *52 income which may not, in fact, be available."[2] For the reasons stated by the Court, I agree that this is not a correct reading of the statute.[3] The Court of Appeals decision, however, cannot be reversed on that basis. That court did not hold that deeming was never permissible; rather, it invalidated regulations which permitted virtually unlimited deeming. I am persuaded that the Court of Appeals was correct in its holding that the statute does place significant limits on the amount of income that may be deemed available to the institutionalized spouse. The Court of Appeals set aside the Secretary's regulations because in promulgating those regulations the Secretary had failed to consider all relevant factors as required by Citizens to Preserve Overton Relying on the same legislative history as did the District Court, the Court of Appeals reasoned that the statutory scheme contemplated that cohabiting spouses would support each other but that Congress intended a flexible approach to apply in situations in which the basic assumption of cohabitation could not be made.[4] The court thus held that the Secretary should *53 have taken into account the impact of institutionalization of one spouse on what previously constituted a single economic unit[5] and the potential disruption of the family caused by deeming.[6] In revising her regulations after the Court of Appeals' decision, then Secretary Harris specifically considered the factors *54 discussed by the Court of Appeals.[7] Although the Secretary was required by the Court of Appeals mandate to reconsider the regulation in light of the factors discussed by the court, the court's mandate did not specify the contents of the new regulations.[8] Nevertheless, the Secretary concluded that deeming in 209 (b) States should be limited in both "duration and amount."[9] She cogently explained her conclusion that "deeming has several adverse impacts on beneficiaries": "The institutionalized spouse may lose medicaid eligibility if the deemed amount is large enough to bring his or her income level over the State's standards. If the deemed amount is not actually contributed but the State's payments to the facility nevertheless are reduced by that amount, the individual may be asked to leave the *55 institution. With respect to the spouse in the community, the use of deeming may also be unfair. This occurs principally because, in section 1902 (f) States, the amounts that are protected for the noninstitutionalized spouse's maintenance may be set at 1972 levels. Those levels may be insufficient in light of the current cost of living. This may force the noninstitutionalized spouse either to refuse to pay the `deemed' amount (possibly resulting in the institutionalized spouse being required to leave the facility), or to try to live at levels that are inadequate for subsistence. "Moreover, when income is `deemed,' the spouse has less of an incentive actually to contribute the amount than if relative responsibility laws are used, because deeming has an adverse effect on the institutionalized individual, whereas relative responsibility laws affect the spouse in the community by requiring him or her to make support payments. These potentially severe impacts lead us to conclude that deeming should be limited in both duration and amount."[10] In my opinion, the Court of Appeals was correct in construing the statutory mandate that "only such income and *56 resources as are available to the applicant" may be taken into account in determining eligibility to require consideration of the impact of institutionalization of one spouse on what was previously a single economic unit. The Secretary's consideration of that factor led her to conclude that deeming "should be limited in both duration and amount." The regulations that had been in effect prior to the Court of Appeals decision permitted a State to deem, for an unlimited period, the wage earner's entire income except for an amount that might have been sufficient to supply basic living requirements in 1972. Because the wage earner and the institutionalized spouse were no longer living together and thereby sharing expenses, and because inflation in the intervening years increased the amount of those expenses, the regulations allowed a State to deem more income than could realistically be considered "available."[11] This consequence was attributable to the failure of the Secretary to give adequate consideration to the factors identified by the Court of Appeals. I believe the Court of Appeals was correct in perceiving this defect in the regulations and in concluding that the Secretary failed to give consideration to a relevant factor required by the statute. I would therefore affirm the judgment of the Court of Appeals. |
Justice Marshall | second_dissenting | false | Michigan v. Payne | 1973-05-21T00:00:00 | null | https://www.courtlistener.com/opinion/108794/michigan-v-payne/ | https://www.courtlistener.com/api/rest/v3/clusters/108794/ | 1,973 | 1972-121 | 1 | 6 | 3 | The Court today holds that no limitations need be placed on resentencings that occurred before the date of decision in North Carolina v. Pearce, 395 U.S. 711 (1969). I believe however, that the State has an obligation to present to the court reviewing the second conviction evidence from which that court can determine whether a new sentence, more severe than that imposed at a prior trial, resulted in part from the sentencing authority's desire to punish the defendant for successfully appealing his first conviction.[1] I therefore respectfully dissent.
I
This case raises the issue of retroactivity only because of the almost unbelievable sluggishness of the appellate process in Michigan. Payne's second sentence was imposed on August 30, 1967, nearly two years before Pearce was decided. However, the Michigan Court of Appeals did not decide Payne's appeal until July 28, 1969, one month after the decision in Pearce. The Michigan Supreme Court considered the case for two more years, finally deciding it on November 9, 1971. Had the appellate process in Michigan been at all expeditious, this Court might have used Payne's case as the vehicle to decide *60 that harsher sentences on reconviction could be justified only by objective evidence of post-sentencing conduct by the defendant, the rule adopted in Pearce. The only difference between Pearce's case and Payne's, then, is that the former moved up to this Court more quickly than the latter. Different treatment of two cases is justified under our Constitution only when the cases differ in some respect relevant to the different treatment.[2] And a difference in the speed with which a judicial system disposes of an appeal is not related in any way to the purposes served by the limitations that Pearce placed on resentencing. Thus, considerations of fairness rooted in the Constitution lead me to conclude that cases in the pipeline when a new constitutional rule is announced must be given the benefit of that rule.
The rule adopted by the Court today is curious in another way. The Court appears to say that a defendant who failed to appeal his first conviction out of "a reasonably based fear of actual vindictiveness," ante, at 52 n. 5, is entitled to review of his conviction. Cf. Fay v. Noia, 372 U.S. 391, 396-397, n. 3 (1963).[3] If his appeal is successful, his new trial will occur after the date of decision in Pearce. Thus, any new sentence will be *61 subject to the limitations imposed by Pearce. The rather strange result is that someone like Payne, who adhered to state procedural rules for vindicating his right to an error-free trial, may receive an enhanced sentence without limitation, while someone who did not adhere to those rules may not have his sentence increased unless the requirements of Pearce are met. I suppose that anomalies are occasionally inevitable, but I submit that we should consider very carefully any rule of retroactivity that has the effect of penalizing compliance with state procedural rules.
II
The Court applies the now-familiar three-pronged test to determine whether Pearce should be given retroactive effect, and it reaches the now-familiar result of nonretroactivity.[4] I believe that principled adjudication requires the Court to abandon the charade of carefully balancing countervailing considerations when deciding the question of retroactivity. Inspecting the cases dealing with retroactivity, I find that they appear to fall into three groups. In some cases, this Court has held that the trial court lacked jurisdiction in the traditional sense. See, e. g., Benton v. Maryland, 395 U.S. 784 (1969); Waller v. Florida, 397 U.S. 387 (1970). Those holdings have been made fully retroactive. Ashe v. Swenson, 397 U.S. 436 (1970); Robinson v. Neil, 409 U.S. 505 (1973). Cf. United States v. U. S. Coin & Currency, 401 U.S. 715 (1971). In other cases the Court announced a rule that was central to the process of determining guilt or innocence, and whose application might well have led to the *62 acquittal of the defendant. See, e. g., Gideon v. Wainwright, 372 U.S. 335 (1963); In re Winship, 397 U.S. 358 (1970). Those holdings too have been given retroactive effect. Pickelsimer v. Wainwright, 375 U.S. 2 (1963); Ivan V. v. New York, 407 U.S. 203 (1972). Cf. Adams v. Illinois, 405 U.S. 278 (1972). All other constitutional rules of criminal procedure have been given prospective effect only.[5]
I confess that I have been unable to discover a principled basis for that threefold classification, but it does appear to be the factor operating in our cases. And I see little point in forcing lower courts to flounder without substantial guidance in the morass of our cases, by informing them that they are to apply a balancing test, when in fact it invariably occurs that the balancing test results in holdings of nonretroactivity. Furthermore, it demeans this Court to pretend to consider a variety of factors if, no matter how those factors are arrayed, the result is predetermined. An open-minded examination of this Court's cases on retroactivity compels the conclusion that the Court divides cases into several classes, and it is the classification, not the three-pronged test, that determines the result. Our time would be better spent, I think, in attempting to delineate the basis for those classifications, and to derive them from some constitutional principles, rather than in "applying" a balancing test. Indeed, it might have been thought that *63 Robinson v. Neil, supra, had begun the task of rationalizing our cases, but apparently that is not so.
III
The holding of Pearce is a simple one: the Due Process Clause requires States to adopt procedures designed to minimize the possibility that a new sentence after a successful appeal will be based in part on vindictiveness for the defendant's having taken the appeal. The Court agrees that "this basic due process protection . . . is available equally to defendants resentenced before and after the date of decision in that case." Ante, at 50, 51. The question then is what procedures are required to insure that that protection has been afforded defendants resentenced before Pearce was decided. This question, like many of those involving retroactivity, relates to the integrity of the judicial process, not to the limitations placed by the Constitution on police behavior. One can agree that the precise requirements of Pearce are inappropriate for retrospective application, largely because they are procedurally ill-adapted to the problem, yet disagree with the Court that the States need do nothing at all to convince a reviewing court that vindictiveness played no part in the resentencing. See e. g., Commonwealth v. Allen, 443 Pa. 96, 102, 277 A.2d 803 (1971).
The issue need not be framed as the "retroactivity" of Pearce. The problem, as I see it, is to devise procedures that will permit reviewing courts to determine whether the requirements of the Due Process Clause have been met. In Pearce we concluded that it would be enough for a judge, on resentencing a defendant, to state his reasons for imposing a more severe sentence. If the more severe sentence was based upon objective information, placed on the record, concerning the conduct of the *64 defendant after the first sentencing, the more severe sentence was permissible. Such a rule, although not absolutely guaranteeing that vindictiveness will play no part,[6] nonetheless substantially reduces the possibility that it will, without significantly interfering with the judge's lawful discretion.
A rather similar procedure would accomplish the same result for defendants resentenced before Pearce was decided. If a defendant did receive a harsher sentence after a successful appeal, and he seeks to have it reduced to the original sentence, the State should be required to present evidence that the new sentence was based on post-sentence conduct. In the absence of such evidence, the sentence must be reduced.[7] The Court suggests that such a procedure would "occasion windfall benefits for some defendants who have suffered no constitutional deprivation." Ante, at 53. That assertion must be considered more closely.
As the Court notes, there is little evidence that more severe sentences are often imposed. It cites an informal survey suggesting that 12% of reconvicted defendants receive higher sentences. Ante, at 56 n. 13. Even if that estimate is only half as large as the actual figure for pre-Pearce cases, still there are clearly very few defendants who have received harsher sentences. With respect *65 to many of them, it will not be difficult to produce evidence supporting the new sentence. As in Moon v. Maryland, 398 U.S. 319 (1970), and Odom v. United States, 400 U.S. 23 (1970), the sentencing judge might indicate by affidavit or order the grounds for his sentencing decision. If memories have faded, the State might show that a presentence report considered by the judge recited post-sentence conduct by the defendant that would justify the harsher sentence.
Thus, I do not think that it can fairly be said that the requirements I would impose would in fact result in windfall benefits to "innumerable" defendants, ante, at 55; they would accrue to those few defendants who were convicted, successfully appealed, were reconvicted, and received harsher sentences so long ago that the State cannot produce evidence from which a reviewing court could find that vindictiveness played no part in the sentencing decision.[8] And the "windfall benefits" would impair no substantial state interest in incarcerating those few offenders. Unlike the suppression of probative evidence that might severely limit the State's ability to secure a conviction of a person who undoubtedly committed an offense, here the remedy is simply the reduction of sentence. North Carolina v. Rice, 404 U.S. 244, 247 (1971). The sentence to be served would be one that had already been found appropriate by one *66 judge, and would therefore satisfy the various interests advanced by incarceration.[9]
For these reasons, I dissent.
MR. JUSTICE STEWART joins Part III of this opinion.
| The Court today holds that no limitations need be placed on resentencings that occurred before the date of decision in North I believe however, that the State has an obligation to present to the court reviewing the second conviction evidence from which that court can determine whether a new sentence, more severe than that imposed at a prior trial, resulted in part from the sentencing authority's desire to punish the defendant for successfully appealing his first conviction.[1] I therefore respectfully dissent. I This case raises the issue of retroactivity only because of the almost unbelievable sluggishness of the appellate process in Michigan. Payne's second sentence was imposed on August 30, 1967, nearly two years before Pearce was decided. However, the Michigan Court of Appeals did not decide Payne's appeal until July 28, 1969, one month after the decision in Pearce. The Michigan Supreme Court considered the case for two more years, finally deciding it on November 9, Had the appellate process in Michigan been at all expeditious, this Court might have used Payne's case as the vehicle to decide *60 that harsher sentences on reconviction could be justified only by objective evidence of post-sentencing conduct by the defendant, the rule adopted in Pearce. The only difference between Pearce's case and Payne's, then, is that the former moved up to this Court more quickly than the latter. Different treatment of two cases is justified under our Constitution only when the cases differ in some respect relevant to the different treatment.[2] And a difference in the speed with which a judicial system disposes of an appeal is not related in any way to the purposes served by the limitations that Pearce placed on resentencing. Thus, considerations of fairness rooted in the Constitution lead me to conclude that cases in the pipeline when a new constitutional rule is announced must be given the benefit of that rule. The rule adopted by the Court today is curious in another way. The Court appears to say that a defendant who failed to appeal his first conviction out of "a reasonably based fear of actual vindictiveness," ante, at 52 n. 5, is entitled to review of his conviction. Cf.[3] If his appeal is successful, his new trial will occur after the date of decision in Pearce. Thus, any new sentence will be *61 subject to the limitations imposed by Pearce. The rather strange result is that someone like Payne, who adhered to state procedural rules for vindicating his right to an error-free trial, may receive an enhanced sentence without limitation, while someone who did not adhere to those rules may not have his sentence increased unless the requirements of Pearce are met. I suppose that anomalies are occasionally inevitable, but I submit that we should consider very carefully any rule of retroactivity that has the effect of penalizing compliance with state procedural rules. II The Court applies the now-familiar three-pronged test to determine whether Pearce should be given retroactive effect, and it reaches the now-familiar result of nonretroactivity.[4] I believe that principled adjudication requires the Court to abandon the charade of carefully balancing countervailing considerations when deciding the question of retroactivity. Inspecting the cases dealing with retroactivity, I find that they appear to fall into three groups. In some cases, this Court has held that the trial court lacked jurisdiction in the traditional sense. See, e. g., ; Those holdings have been made fully retroactive. ; Cf. United In other cases the Court announced a rule that was central to the process of determining guilt or innocence, and whose application might well have led to the *62 acquittal of the defendant. See, e. g., ; In re Winship, Those holdings too have been given retroactive effect. ; Ivan V. v. New York, Cf. All other constitutional rules of criminal procedure have been given prospective effect only.[5] I confess that I have been unable to discover a principled basis for that threefold classification, but it does appear to be the factor operating in our cases. And I see little point in forcing lower courts to flounder without substantial guidance in the morass of our cases, by informing them that they are to apply a balancing test, when in fact it invariably occurs that the balancing test results in holdings of nonretroactivity. Furthermore, it demeans this Court to pretend to consider a variety of factors if, no matter how those factors are arrayed, the result is predetermined. An open-minded examination of this Court's cases on retroactivity compels the conclusion that the Court divides cases into several classes, and it is the classification, not the three-pronged test, that determines the result. Our time would be better spent, I think, in attempting to delineate the basis for those classifications, and to derive them from some constitutional principles, rather than in "applying" a balancing test. Indeed, it might have been thought that *63 had begun the task of rationalizing our cases, but apparently that is not so. III The holding of Pearce is a simple one: the Due Process Clause requires States to adopt procedures designed to minimize the possibility that a new sentence after a successful appeal will be based in part on vindictiveness for the defendant's having taken the appeal. The Court agrees that "this basic due process protection is available equally to defendants resentenced before and after the date of decision in that case." Ante, at 50, 51. The question then is what procedures are required to insure that that protection has been afforded defendants resentenced before Pearce was decided. This question, like many of those involving retroactivity, relates to the integrity of the judicial process, not to the limitations placed by the Constitution on police behavior. One can agree that the precise requirements of Pearce are inappropriate for retrospective application, largely because they are procedurally ill-adapted to the problem, yet disagree with the Court that the States need do nothing at all to convince a reviewing court that vindictiveness played no part in the resentencing. See e. g., The issue need not be framed as the "retroactivity" of Pearce. The problem, as I see it, is to devise procedures that will permit reviewing courts to determine whether the requirements of the Due Process Clause have been met. In Pearce we concluded that it would be enough for a judge, on resentencing a defendant, to state his reasons for imposing a more severe sentence. If the more severe sentence was based upon objective information, placed on the record, concerning the conduct of the *64 defendant after the first sentencing, the more severe sentence was permissible. Such a rule, although not absolutely guaranteeing that vindictiveness will play no part,[6] nonetheless substantially reduces the possibility that it will, without significantly interfering with the judge's lawful discretion. A rather similar procedure would accomplish the same result for defendants resentenced before Pearce was decided. If a defendant did receive a harsher sentence after a successful appeal, and he seeks to have it reduced to the original sentence, the State should be required to present evidence that the new sentence was based on post-sentence conduct. In the absence of such evidence, the sentence must be reduced.[7] The Court suggests that such a procedure would "occasion windfall benefits for some defendants who have suffered no constitutional deprivation." Ante, at 53. That assertion must be considered more closely. As the Court notes, there is little evidence that more severe sentences are often imposed. It cites an informal survey suggesting that 12% of reconvicted defendants receive higher sentences. Ante, at 56 n. 13. Even if that estimate is only half as large as the actual figure for pre-Pearce cases, still there are clearly very few defendants who have received harsher sentences. With respect *65 to many of them, it will not be difficult to produce evidence supporting the new sentence. As in and the sentencing judge might indicate by affidavit or order the grounds for his sentencing decision. If memories have faded, the State might show that a presentence report considered by the judge recited post-sentence conduct by the defendant that would justify the harsher sentence. Thus, I do not think that it can fairly be said that the requirements I would impose would in fact result in windfall benefits to "innumerable" defendants, ante, at 55; they would accrue to those few defendants who were convicted, successfully appealed, were reconvicted, and received harsher sentences so long ago that the State cannot produce evidence from which a reviewing court could find that vindictiveness played no part in the sentencing decision.[8] And the "windfall benefits" would impair no substantial state interest in incarcerating those few offenders. Unlike the suppression of probative evidence that might severely limit the State's ability to secure a conviction of a person who undoubtedly committed an offense, here the remedy is simply the reduction of sentence. North The sentence to be served would be one that had already been found appropriate by one *66 judge, and would therefore satisfy the various interests advanced by incarceration.[9] For these reasons, I dissent. MR. JUSTICE STEWART joins Part III of this opinion. |
Justice White | concurring | false | Greenbelt Cooperative Publishing Assn., Inc. v. Bresler | 1970-05-18T00:00:00 | null | https://www.courtlistener.com/opinion/108146/greenbelt-cooperative-publishing-assn-inc-v-bresler/ | https://www.courtlistener.com/api/rest/v3/clusters/108146/ | 1,970 | 1969-094 | 2 | 8 | 0 | I concur in the judgment of reversal and join the opinion of the Court insofar as it rests reversal on the erroneous definition of malice contained in the instructions given to the jury. I do not, however, join the remainder of the Court's opinion.
Respondent Bresler charged that he had been libeled by at least four statements published in petitioners' newspaper: (1) a statement that Bresler's conduct amounted to "a slight case of blackmail," accompanied by the use of the word "blackmail" as a column subheading; (2) a charge that Bresler had engaged in an "unethical trade"; (3) an allegation that Bresler had been guilty of "skulduggery," a word used by the newspaper to characterize statements made by others about Bresler; and (4) a statement that Bresler had had legal proceedings "started against him for failure to make construction corrections in accordance with county standards." Petitioners contended that the use of the word blackmail had not been intended in the criminal sense and was not libelous and that in any event the newspaper had not made its publications with malice, that is, with knowledge *19 that any of the statements were false or with reckless disregard of the falsity of any of them.
In instructing the jury the trial court defined libel as:
"the publication of words, pictures or symbols which imputes to a person a crime or a disgraceful or dishonest or immoral conduct or is otherwise injurious to the private character or credit of the person in the minds of a considerable and respectable class in the community. . . .
"[T]he burden is upon the plaintiff to establish by a preponderance of the evidence that the publication imputed to him a crime, or disgraceful, dishonest or immoral conduct or was otherwise injurious to his private character or credit . . . ." App. E. 189.
With respect to the dispute over the sense with which the charge of blackmail had been used the court told the jury:
"[I]f you are unable to conclude from the preponderance of the evidence that the publication bears a meaning ascribed to it by the plaintiff, or if you find that the evidence is equally balanced on that issue, then your verdict must be for the defendant.
.....
"In considering the publication complained of, you must consider the publication as a whole the Court would say in this case we are talking about serious, [sic] number of publicationsand determine the meaning of the publication and how it would be understood by ordinary readers from the entire context thereof with the other facts and circumstances shown by the evidence.
"Where a publication is susceptible of two meanings one of those which would be libelous and the *20 other not, it is up to you to say which of the two meanings would be attributable to it, by those to whom it is addressed or by whom it may be read. In reaching your decision you can consider all the circumstances surrounding the publication, which includes all of the evidence which has been admitted." Id., at E. 189-190.
The court also defined the crime of blackmail and told the jury that in this sense the defendant newspaper did not claim that the allegations were true.
Petitioners took exception to none of the foregoing instructions although in their motion for judgment n. o. v. or for a new trial, error was claimed in not instructing the jury that the failure to plead truth meant only that the defendants did not adopt the meaning of the words alleged by the plaintiff. See App. E. 10-11.
The jury returned a verdict for plaintiff, and judgment was entered on the verdict for both compensatory and punitive damages.
The Court of Appeals of Maryland affirmed. The court held that aside from federal constitutional protections urged by petitioners, the jury's verdict and subsequent judgment thereon were supported by the evidence. With respect to the blackmail charge the court said:
"In the instant case the word `blackmail' was used as a sub-heading without qualification. The charge of blackmail was stated in the News Review issue of October 14, 1965, and was again repeated in the next week in the issue of October 21. The appellants argue that the word `blackmail' was used in a noncriminal sense, but the intended meaning was for the jury to determine. American Stores v. Byrd, supra. The jury found against the appellants.
.....
*21 "The charging of Mr. Bresler with having committed blackmail could be found by the jury (as it was) to charge him with the commission of a crime." 253 Md. 324, 351-352, 252 A.2d 755, 770 (1969).
The court also dealt with the other publications:
"In addition to the publications that Mr. Bresler had committed blackmail, there were publications that he had engaged in `An unethical trade,' had been guilty of `skulduggery,' had had legal proceedings `started against him for failure to make construction corrections in accordance with county standards.' These allegations were injurious to Mr. Bresler in his business as a contractor and were libelous per se." Id., at 354, 252 A.2d, at 772.
As for the issue of malice, the Court of Appeals noted that the newspaper knew the blackmail charge was false in the criminal sense. With reference to the charge of "skulduggery" the court pointed out that the newspaper had not quoted another source in using that word; rather, it was the publishers' own characterization of the events.
"There is little doubt that the word `skulduggery' was intended to indicate dishonest conduct on the part of Bresler and to hold him up to ridicule and contempt. . . . The jury could properly conclude that the reports of the hearing were not accurately reported and were, also, published with a knowledge of their falsity or with serious doubt of their truthfulness." Id., at 360, 252 A.2d, at 775.
The court also held that the allegations that homeowners had started legal proceedings against Bresler in regard to construction defects in their homes built by him had been made with reckless disregard for the truth.
In reversing the Maryland Court of Appeals, the Court does not deny that the Constitution would permit recovery *22 for charging the crime of blackmail, or even for falsely accusing one of "blackmail" in a noncriminal but derogatory sense "injurious to the private character or credit of the person." The Court does not deny that the jury was told it had the authority to decide in what sense a word was used or understood, nor does the Court question the conclusion of the Court of Appeals that the jury had found that the word had been used and understood in the criminal sense. What the Court does hold on the cold record is that the trial judge, the jury, and the Maryland Court of Appeals were quite wrong in concluding that "ordinary readers" could have understood that a crime had been charged. If this conclusion rests on the proposition that there was no evidence to support a judgment that the charge of blackmail would be understood by the average reader to import criminal conduct, I cannot agree. The very fact that the word is conceded to have a double meaning in normal usage is itself some evidence; and without challenging the reading of the jury's verdict by the Maryland Court of Appeals, I cannot join the majority claim of superior insight with respect to how the word "blackmail" would be understood by the ordinary reader in Greenbelt, Maryland.
Although the Court does not so hold, arguably the newspaper should not be liable if it had no intention of charging a crime and had a good-faith, nonreckless belief that it was not doing so. Should New York Times Co. v. Sullivan, 376 U.S. 254 (1964), be extended to preclude liability for injury to reputation caused by employing words of double meaning, one of which is libelous, whenever the publisher claims in good faith to have intended the innocent meaning? I think not. The New York Times case was an effort to effectuate the policies of the First Amendment by recognizing the difficulties of ascertaining *23 the truth of allegations about a public official whom the newspaper is investigating with an eye to publication. Absent protection for the nonreckless publication of "facts" that subsequently prove to be false, the danger is that legitimate news and communication will be suppressed. But it is quite a different thing, not involving the same danger of self-censorship, to immunize professional communicators from liability for their use of ambiguous language and their failure to guard against the possibility that words known to carry two meanings, one of which imputes commission of a crime, might seriously damage the object of their comment in the eyes of the average reader. I see no reason why the members of a skilled calling should not be held to the standard of their craft and assume the risk of being misunderstoodif they areby the ordinary reader of their publications. If it is thought that the First Amendment requires more protection for the media in this respect in accurately reporting events and statements occurring at official meetings, it would be preferable directly to carve out a wider privilege for such reporting.
I agree with the Court that there was error in the instructions concerning malice. The error, however, is irrelevant to the "blackmail" phase of this case as I view it: if one assumes that the jury found that the crime of blackmail was charged, "malice" is conceded, since the defendants admittedly knew such a charge was false.
Nevertheless, the jury returned a general verdict; it might have found that the blackmail statement did not impute a crime, but that the other damaging statements published by the newspaper were libelous. Indeed, this was the most likely course for the jury to have taken if the Court is correct that there was so little reason for *24 basing liability on the blackmail allegation. Given this possibility, the error in the instructions requires reversal of the judgment. Stromberg v. California, 283 U.S. 359 (1931).
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurs in the judgment of the Court for the reasons set out in MR. JUSTICE BLACK's concurring opinion in New York Times Co. v. Sullivan, 376 U.S. 254, 293 (1964), in his concurring and dissenting opinion in Curtis Publishing Co. v. Butts, 388 U.S. 130, 170 (1967), and in MR. JUSTICE DOUGLAS' concurring opinion in Garrison v. Louisiana, 379 U.S. 64, 80 (1964).
| I concur in the judgment of reversal and join the opinion of the Court insofar as it rests reversal on the erroneous definition of malice contained in the instructions given to the jury. I do not, however, join the remainder of the Court's opinion. Respondent Bresler charged that he had been libeled by at least four statements published in petitioners' newspaper: (1) a statement that Bresler's conduct amounted to "a slight case of blackmail," accompanied by the use of the word "blackmail" as a column subheading; (2) a charge that Bresler had engaged in an "unethical trade"; (3) an allegation that Bresler had been guilty of "skulduggery," a word used by the newspaper to characterize statements made by others about Bresler; and (4) a statement that Bresler had had legal proceedings "started against him for failure to make construction corrections in accordance with county standards." Petitioners contended that the use of the word blackmail had not been intended in the criminal sense and was not libelous and that in any event the newspaper had not made its publications with malice, that is, with knowledge *19 that any of the statements were false or with reckless disregard of the falsity of any of them. In instructing the jury the trial court defined libel as: "the publication of words, pictures or symbols which imputes to a person a crime or a disgraceful or dishonest or immoral conduct or is otherwise injurious to the private character or credit of the person in the minds of a considerable and respectable class in the community. "[T]he burden is upon the plaintiff to establish by a preponderance of the evidence that the publication imputed to him a crime, or disgraceful, dishonest or immoral conduct or was otherwise injurious to his private character or credit" App. E. 189. With respect to the dispute over the sense with which the charge of blackmail had been used the court told the jury: "[I]f you are unable to conclude from the preponderance of the evidence that the publication bears a meaning ascribed to it by the plaintiff, or if you find that the evidence is equally balanced on that issue, then your verdict must be for the defendant. "In considering the publication complained of, you must consider the publication as a whole the Court would say in this case we are talking about serious, [sic] number of publicationsand determine the meaning of the publication and how it would be understood by ordinary readers from the entire context thereof with the other facts and circumstances shown by the evidence. "Where a publication is susceptible of two meanings one of those which would be libelous and the *20 other not, it is up to you to say which of the two meanings would be attributable to it, by those to whom it is addressed or by whom it may be read. In reaching your decision you can consider all the circumstances surrounding the publication, which includes all of the evidence which has been admitted." at E. 189-190. The court also defined the crime of blackmail and told the jury that in this sense the defendant newspaper did not claim that the allegations were true. Petitioners took exception to none of the foregoing instructions although in their motion for judgment n. o. v. or for a new trial, error was claimed in not instructing the jury that the failure to plead truth meant only that the defendants did not adopt the meaning of the words alleged by the plaintiff. See App. E. 10-11. The jury returned a verdict for plaintiff, and judgment was entered on the verdict for both compensatory and punitive damages. The Court of Appeals of Maryland affirmed. The court held that aside from federal constitutional protections urged by petitioners, the jury's verdict and subsequent judgment thereon were supported by the evidence. With respect to the blackmail charge the court said: "In the instant case the word `blackmail' was used as a sub-heading without qualification. The charge of blackmail was stated in the News Review issue of October 14, 1965, and was again repeated in the next week in the issue of October 21. The appellants argue that the word `blackmail' was used in a noncriminal sense, but the intended meaning was for the jury to determine. American Stores v. The jury found against the appellants. *21 "The charging of Mr. Bresler with having committed blackmail could be found by the jury (as it was) to charge him with the commission of a crime." The court also dealt with the other publications: "In addition to the publications that Mr. Bresler had committed blackmail, there were publications that he had engaged in `An unethical trade,' had been guilty of `skulduggery,' had had legal proceedings `started against him for failure to make construction corrections in accordance with county standards.' These allegations were injurious to Mr. Bresler in his business as a contractor and were libelous per se." As for the issue of malice, the Court of Appeals noted that the newspaper knew the blackmail charge was false in the criminal sense. With reference to the charge of "skulduggery" the court pointed out that the newspaper had not quoted another source in using that word; rather, it was the publishers' own characterization of the events. "There is little doubt that the word `skulduggery' was intended to indicate dishonest conduct on the part of Bresler and to hold him up to ridicule and contempt. The jury could properly conclude that the reports of the hearing were not accurately reported and were, also, published with a knowledge of their falsity or with serious doubt of their truthfulness." The court also held that the allegations that homeowners had started legal proceedings against Bresler in regard to construction defects in their homes built by him had been made with reckless disregard for the truth. In reversing the Maryland Court of Appeals, the Court does not deny that the Constitution would permit recovery *22 for charging the crime of blackmail, or even for falsely accusing one of "blackmail" in a noncriminal but derogatory sense "injurious to the private character or credit of the person." The Court does not deny that the jury was told it had the authority to decide in what sense a word was used or understood, nor does the Court question the conclusion of the Court of Appeals that the jury had found that the word had been used and understood in the criminal sense. What the Court does hold on the cold record is that the trial judge, the jury, and the Maryland Court of Appeals were quite wrong in concluding that "ordinary readers" could have understood that a crime had been charged. If this conclusion rests on the proposition that there was no evidence to support a judgment that the charge of blackmail would be understood by the average reader to import criminal conduct, I cannot agree. The very fact that the word is conceded to have a double meaning in normal usage is itself some evidence; and without challenging the reading of the jury's verdict by the Maryland Court of Appeals, I cannot join the majority claim of superior insight with respect to how the word "blackmail" would be understood by the ordinary reader in Greenbelt, Maryland. Although the Court does not so hold, arguably the newspaper should not be liable if it had no intention of charging a crime and had a good-faith, nonreckless belief that it was not doing so. Should New York Times be extended to preclude liability for injury to reputation caused by employing words of double meaning, one of which is libelous, whenever the publisher claims in good faith to have intended the innocent meaning? I think not. The New York Times case was an effort to effectuate the policies of the First Amendment by recognizing the difficulties of ascertaining *23 the truth of allegations about a public official whom the newspaper is investigating with an eye to publication. Absent protection for the nonreckless publication of "facts" that subsequently prove to be false, the danger is that legitimate news and communication will be suppressed. But it is quite a different thing, not involving the same danger of self-censorship, to immunize professional communicators from liability for their use of ambiguous language and their failure to guard against the possibility that words known to carry two meanings, one of which imputes commission of a crime, might seriously damage the object of their comment in the eyes of the average reader. I see no reason why the members of a skilled calling should not be held to the standard of their craft and assume the risk of being misunderstoodif they areby the ordinary reader of their publications. If it is thought that the First Amendment requires more protection for the media in this respect in accurately reporting events and statements occurring at official meetings, it would be preferable directly to carve out a wider privilege for such reporting. I agree with the Court that there was error in the instructions concerning malice. The error, however, is irrelevant to the "blackmail" phase of this case as I view it: if one assumes that the jury found that the crime of blackmail was charged, "malice" is conceded, since the defendants admittedly knew such a charge was false. Nevertheless, the jury returned a general verdict; it might have found that the blackmail statement did not impute a crime, but that the other damaging statements published by the newspaper were libelous. Indeed, this was the most likely course for the jury to have taken if the Court is correct that there was so little reason for *24 basing liability on the blackmail allegation. Given this possibility, the error in the instructions requires reversal of the judgment. MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurs in the judgment of the Court for the reasons set out in MR. JUSTICE BLACK's concurring opinion in New York Times in his concurring and dissenting opinion in Curtis Publishing and in MR. JUSTICE DOUGLAS' concurring opinion in |
Justice White | majority | false | United States v. Dunn | 1987-04-20T00:00:00 | null | https://www.courtlistener.com/opinion/111833/united-states-v-dunn/ | https://www.courtlistener.com/api/rest/v3/clusters/111833/ | 1,987 | 1986-046 | 1 | 7 | 2 | We granted the Government's petition for certiorari to decide whether the area near a barn, located approximately 50 yards from a fence surrounding a ranch house, is, for Fourth Amendment purposes, within the curtilage of the house. The Court of Appeals for the Fifth Circuit held that the barn lay within the house's curtilage, and that the District Court should have suppressed certain evidence obtained as a result of law enforcement officials' intrusion onto the area immediately surrounding the barn. 782 F.2d 1226 (1986). We conclude that the barn and the area around it lay outside the curtilage of the house, and accordingly reverse the judgment of the Court of Appeals.
I
Respondent Ronald Dale Dunn and a codefendant, Robert Lyle Carpenter, were convicted by a jury of conspiring to manufacture phenylacetone and amphetamine, and to possess amphetamine with intent to distribute, in violation of 21 U.S. C. § 846. Respondent was also convicted of manufacturing these two controlled substances and possessing amphetamine with intent to distribute. The events giving rise to respondent's apprehension and conviction began in 1980 when agents from the Drug Enforcement Administration (DEA) discovered that Carpenter had purchased large quantities of chemicals and equipment used in the manufacture of amphetamine and phenylacetone. DEA agents obtained warrants from a Texas state judge authorizing installation of miniature electronic transmitter tracking devices, or "beepers," in an electric hot plate stirrer, a drum of acetic anhydride, and a container holding phenylacetic acid, a precursor to phenylacetone. All of these items had been ordered by *297 Carpenter. On September 3, 1980, Carpenter took possession of the electric hot plate stirrer, but the agents lost the signal from the "beeper" a few days later. The agents were able to track the "beeper" in the container of chemicals, however, from October 27, 1980, until November 5, 1980, on which date Carpenter's pickup truck, which was carrying the container, arrived at respondent's ranch. Aerial photographs of the ranch property showed Carpenter's truck backed up to a barn behind the ranch house. The agents also began receiving transmission signals from the "beeper" in the hot plate stirrer that they had lost in early September and determined that the stirrer was on respondent's ranch property.
Respondent's ranch comprised approximately 198 acres and was completely encircled by a perimeter fence. The property also contained several interior fences, constructed mainly of posts and multiple strands of barbed wire. The ranch residence was situated 1/2 mile from a public road. A fence encircled the residence and a nearby small greenhouse. Two barns were located approximately 50 yards from this fence. The front of the larger of the two barns was enclosed by a wooden fence and had an open overhang. Locked, waist-high gates barred entry into the barn proper, and netting material stretched from the ceiling to the top of the wooden gates.
On the evening of November 5, 1980, law enforcement officials made a warrantless entry onto respondent's ranch property. A DEA agent accompanied by an officer from the Houston Police Department crossed over the perimeter fence and one interior fence. Standing approximately midway between the residence and the barns, the DEA agent smelled what he believed to be phenylacetic acid, the odor coming from the direction of the barns. The officers approached the smaller of the barns crossing over a barbed wire fence and, looking into the barn, observed only empty boxes. The officers then proceeded to the larger barn, crossing another *298 barbed wire fence as well as a wooden fence that enclosed the front portion of the barn. The officers walked under the barn's overhang to the locked wooden gates and, shining a flashlight through the netting on top of the gates, peered into the barn. They observed what the DEA agent thought to be a phenylacetone laboratory. The officers did not enter the barn.[1] At this point the officers departed from respondent's property, but entered it twice more on November 6 to confirm the presence of the phenylacetone laboratory.
On November 6, 1980, at 8:30 p.m., a Federal Magistrate issued a warrant authorizing a search of respondent's ranch. DEA agents and state law enforcement officials executed the warrant on November 8, 1980.[2] The officers arrested respondent *299 and seized chemicals and equipment, as well as bags of amphetamines they discovered in a closet in the ranch house.
The District Court denied respondent's motion to suppress all evidence seized pursuant to the warrant and respondent and Carpenter were convicted. In a decision rendered in 1982, the Court of Appeals reversed respondent's conviction. United States v. Dunn, 674 F.2d 1093. The court concluded that the search warrant had been issued based on information obtained during the officers' unlawful warrantless entry onto respondent's ranch property and, therefore, all evidence seized pursuant to the warrant should have been suppressed. Underpinning this conclusion was the court's reasoning that "the barn in question was within the curtilage of the residence and was within the protective ambit of the fourth amendment." Id., at 1100. We granted the Government's petition for certiorari, vacated the judgment of the Court of Appeals, and remanded the case for further consideration in light of Oliver v. United States, 466 U.S. 170 (1984). 467 U.S. 1201 (1984). On remand, the Court of Appeals reaffirmed its judgment that the evidence seized pursuant to the warrant should have been suppressed, but altered the legal basis supporting this conclusion: the large barn was not within the curtilage of the house, but by standing outside the barn and peering into the structure, the officers nonetheless violated respondent's "reasonable expectation of privacy in his barn and its contents." 766 F.2d 880, 886 (1985). The Government again filed a petition for certiorari. On January 17, 1986, before this Court acted on the petition, the Court of Appeals recalled and vacated its judgment issued on remand, stating that it would enter a new judgment in due course. 781 F.2d 52. On February 4, 1986, the Court of Appeals reinstated the original opinion rendered in 1982, asserting that "[u]pon studied reflection, we now conclude and hold that the barn was inside the protected curtilage." 782 F.2d, at 1227. The Government thereupon submitted a supplement to its petition for certiorari, revising the question presented *300 to whether the barn lay within the curtilage of the house. We granted the petition, 477 U.S. 903, and now reverse.
II
The curtilage concept originated at common law to extend to the area immediately surrounding a dwelling house the same protection under the law of burglary as was afforded the house itself. The concept plays a part, however, in interpreting the reach of the Fourth Amendment. Hester v. United States, 265 U.S. 57, 59 (1924), held that the Fourth Amendment's protection accorded "persons, houses, papers, and effects" did not extend to the open fields, the Court observing that the distinction between a person's house and open fields "is as old as the common law. 4 Bl. Comm. 223, 225, 226."[3]
We reaffirmed the holding of Hester in Oliver v. United States, supra. There, we recognized that the Fourth Amendment protects the curtilage of a house and that the extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself. 466 U.S., at 180. We identified the central component of this inquiry as whether the area harbors the "intimate activity associated with the `sanctity of a man's home and the privacies of life.' " Ibid. (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)).
*301 Drawing upon the Court's own cases and the cumulative experience of the lower courts that have grappled with the task of defining the extent of a home's curtilage, we believe that curtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. See California v. Ciraolo, 476 U.S. 207, 221 (1986) (POWELL, J., dissenting) (citing Care v. United States, 231 F.2d 22, 25 (CA10), cert. denied, 351 U.S. 932 (1956); United States v. Van Dyke, 643 F.2d 992, 993-994 (CA4 1981)).[4] We do not suggest that combining these factors produces a finely tuned formula that, when mechanically applied, yields a "correct" answer to all extent-of-curtilage questions. Rather, these factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration whether the area in question is so intimately tied to the home itself that it should be placed under the home's "umbrella" of Fourth Amendment protection. Applying these factors to respondent's barn and to the area immediately surrounding it, we have little difficulty in concluding that this area lay outside the curtilage of the ranch house.
*302 First. The record discloses that the barn was located 50 yards from the fence surrounding the house and 60 yards from the house itself. 766 F.2d, at 882-883; 782 F. 2d, at 1228. Standing in isolation, this substantial distance supports no inference that the barn should be treated as an adjunct of the house.
Second. It is also significant that respondent's barn did not lie within the area surrounding the house that was enclosed by a fence. We noted in Oliver, supra, that "for most homes, the boundaries of the curtilage will be clearly marked; and the conception defining the curtilage as the area around the home to which the activity of home life extends is a familiar one easily understood from our daily experience." 466 U.S., at 182, n. 12. Viewing the physical layout of respondent's ranch in its entirety, see 782 F.2d, at 1228, it is plain that the fence surrounding the residence serves to demark a specific area of land immediately adjacent to the house that is readily identifiable as part and parcel of the house. Conversely, the barn the front portion itself enclosed by a fence and the area immediately surrounding it, stands out as a distinct portion of respondent's ranch, quite separate from the residence.
Third. It is especially significant that the law enforcement officials possessed objective data indicating that the barn was not being used for intimate activities of the home. The aerial photographs showed that the truck Carpenter had been driving that contained the container of phenylacetic acid was backed up to the barn, "apparently," in the words of the Court of Appeals, "for the unloading of its contents." 674 F.2d, at 1096. When on respondent's property, the officers' suspicion was further directed toward the barn because of "a very strong odor" of phenylacetic acid. App. 15. As the DEA agent approached the barn, he "could hear a motor running, like a pump motor of some sort . . . ." Id., at 17. Furthermore, the officers detected an "extremely strong" odor of phenylacetic acid coming from a small crack in the *303 wall of the barn. Ibid. Finally, as the officers were standing in front of the barn, immediately prior to looking into its interior through the netting material, "the smell was very, very strong . . . [and the officers] could hear the motor running very loudly." Id., at 18. When considered together, the above facts indicated to the officers that the use to which the barn was being put could not fairly be characterized as so associated with the activities and privacies of domestic life that the officers should have deemed the barn as part of respondent's home.
Fourth. Respondent did little to protect the barn area from observation by those standing in the open fields. Nothing in the record suggests that the various interior fences on respondent's property had any function other than that of the typical ranch fence; the fences were designed and constructed to corral livestock, not to prevent persons from observing what lay inside the enclosed areas.
III
Respondent submits an alternative basis for affirming the judgment below, one that was presented to but ultimately not relied upon by the Court of Appeals. Respondent asserts that he possessed an expectation of privacy, independent from his home's curtilage, in the barn and its contents, because the barn is an essential part of his business. Brief for Respondent 9. Respondent overlooks the significance of Oliver v. United States, 466 U.S. 170 (1984).
We may accept, for the sake of argument, respondent's submission that his barn enjoyed Fourth Amendment protection and could not be entered and its contents seized without a warrant. But it does not follow on the record before us that the officers' conduct and the ensuing search and seizure violated the Constitution. Oliver reaffirmed the precept, established in Hester, that an open field is neither a "house" nor an "effect," and, therefore, "the government's intrusion upon the open fields is not one of those `unreasonable searches' *304 proscribed by the text of the Fourth Amendment." 466 U.S., at 177. The Court expressly rejected the argument that the erection of fences on an open field at least of the variety involved in those cases and in the present case creates a constitutionally protected privacy interest. Id., at 182-183. "[T]he term `open fields' may include any unoccupied or undeveloped area outside of the curtilage. An open field need be neither `open' nor a `field' as those terms are used in common speech." Id., at 180, n. 11. It follows that no constitutional violation occurred here when the officers crossed over respondent's ranch-style perimeter fence, and over several similarly constructed interior fences, prior to stopping at the locked front gate of the barn. As previously mentioned, the officers never entered the barn, nor did they enter any other structure on respondent's premises. Once at their vantage point, they merely stood, outside the curtilage of the house and in the open fields upon which the barn was constructed, and peered into the barn's open front. And, standing as they were in the open fields, the Constitution did not forbid them to observe the phenylacetone laboratory located in respondent's barn. This conclusion flows naturally from our previous decisions.
Under Oliver and Hester, there is no constitutional difference between police observations conducted while in a public place and while standing in the open fields. Similarly, the fact that the objects observed by the officers lay within an area that we have assumed, but not decided, was protected by the Fourth Amendment does not affect our conclusion. Last Term, in California v. Ciraolo, 476 U.S. 207 (1986), we held that warrantless naked-eye aerial observation of a home's curtilage did not violate the Fourth Amendment. We based our holding on the premise that the Fourth Amendment "has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares." Id., at 213. Importantly, we deemed it irrelevant that the police observation at issue *305 was directed specifically at the identification of marijuana plants growing on an area protected by the Fourth Amendment. Ibid. Finally, the plurality opinion in Texas v. Brown, 460 U.S. 730, 739-740 (1983), notes that it is "beyond dispute" that the action of a police officer in shining his flashlight to illuminate the interior of a car, without probable cause to search the car, "trenched upon no right secured . . . by the Fourth Amendment." The holding in United States v. Lee, 274 U.S. 559, 563 (1927) is of similar import. Here, the officers' use of the beam of a flashlight, directed through the essentially open front of respondent's barn, did not transform their observations into an unreasonable search within the meaning of Fourth Amendment.
The officers lawfully viewed the interior of respondent's barn, and their observations were properly considered by the Magistrate in issuing a search warrant for respondent's premises. Accordingly, the judgment of the Court of Appeals is reversed.
It is so ordered.
JUSTICE SCALIA, concurring in part.
I join JUSTICE WHITE's opinion with the exception of the paragraph in Part II headed "Third." It does not seem to me "especially significant that the law enforcement officials possessed objective data indicating that the barn was not being used for intimate activities of the home." Ante, at 302. What is significant is that the barn was not being so used, whether or not the law enforcement officials knew it. The officers' perceptions might be relevant to whether intrusion upon curtilage was nevertheless reasonable, but they are no more relevant to whether the barn was curtilage than to whether the house was a house. | We granted the Government's petition for certiorari to decide whether the area near a barn, located approximately 50 yards from a fence surrounding a ranch house, is, for Fourth Amendment purposes, within the curtilage of the house. The Court of Appeals for the Fifth Circuit held that the barn lay within the house's curtilage, and that the District Court should have suppressed certain evidence obtained as a result of law enforcement officials' intrusion onto the area immediately surrounding the barn. We conclude that the barn and the area around it lay outside the curtilage of the house, and accordingly reverse the judgment of the Court of Appeals. I Respondent Ronald Dale Dunn and a codefendant, Robert Lyle Carpenter, were convicted by a jury of conspiring to manufacture phenylacetone and amphetamine, and to possess amphetamine with intent to distribute, in violation of 21 U.S. C. 846. Respondent was also convicted of manufacturing these two controlled substances and possessing amphetamine with intent to distribute. The events giving rise to respondent's apprehension and conviction began in 1980 when agents from the Drug Enforcement Administration (DEA) discovered that Carpenter had purchased large quantities of chemicals and equipment used in the manufacture of amphetamine and phenylacetone. DEA agents obtained warrants from a Texas state judge authorizing installation of miniature electronic transmitter tracking devices, or "beepers," in an electric hot plate stirrer, a drum of acetic anhydride, and a container holding phenylacetic acid, a precursor to phenylacetone. All of these items had been ordered by *297 Carpenter. On September 3, 1980, Carpenter took possession of the electric hot plate stirrer, but the agents lost the signal from the "beeper" a few days later. The agents were able to track the "beeper" in the container of chemicals, however, from October 27, 1980, until November 5, 1980, on which date Carpenter's pickup truck, which was carrying the container, arrived at respondent's ranch. Aerial photographs of the ranch property showed Carpenter's truck backed up to a barn behind the ranch house. The agents also began receiving transmission signals from the "beeper" in the hot plate stirrer that they had lost in early September and determined that the stirrer was on respondent's ranch property. Respondent's ranch comprised approximately 198 acres and was completely encircled by a perimeter fence. The property also contained several interior fences, constructed mainly of posts and multiple strands of barbed wire. The ranch residence was situated 1/2 mile from a public road. A fence encircled the residence and a nearby small greenhouse. Two barns were located approximately 50 yards from this fence. The front of the larger of the two barns was enclosed by a wooden fence and had an open overhang. Locked, waist-high gates barred entry into the barn proper, and netting material stretched from the ceiling to the top of the wooden gates. On the evening of November 5, 1980, law enforcement officials made a warrantless entry onto respondent's ranch property. A DEA agent accompanied by an officer from the Houston Police Department crossed over the perimeter fence and one interior fence. Standing approximately midway between the residence and the barns, the DEA agent smelled what he believed to be phenylacetic acid, the odor coming from the direction of the barns. The officers approached the smaller of the barns crossing over a barbed wire fence and, looking into the barn, observed only empty boxes. The officers then proceeded to the larger barn, crossing another *298 barbed wire fence as well as a wooden fence that enclosed the front portion of the barn. The officers walked under the barn's overhang to the locked wooden gates and, shining a flashlight through the netting on top of the gates, peered into the barn. They observed what the DEA agent thought to be a phenylacetone laboratory. The officers did not enter the barn.[1] At this point the officers departed from respondent's property, but entered it twice more on November 6 to confirm the presence of the phenylacetone laboratory. On November 6, 1980, at 8:30 p.m., a Federal Magistrate issued a warrant authorizing a search of respondent's ranch. DEA agents and state law enforcement officials executed the warrant on November 8, 1980.[2] The officers arrested respondent *299 and seized chemicals and equipment, as well as bags of amphetamines they discovered in a closet in the ranch house. The District Court denied respondent's motion to suppress all evidence seized pursuant to the warrant and respondent and Carpenter were convicted. In a decision rendered in 1982, the Court of Appeals reversed respondent's conviction. United The court concluded that the search warrant had been issued based on information obtained during the officers' unlawful warrantless entry onto respondent's ranch property and, therefore, all evidence seized pursuant to the warrant should have been suppressed. Underpinning this conclusion was the court's reasoning that "the barn in question was within the curtilage of the residence and was within the protective ambit of the fourth amendment." We granted the Government's petition for certiorari, vacated the judgment of the Court of Appeals, and remanded the case for further consideration in light of On remand, the Court of Appeals reaffirmed its judgment that the evidence seized pursuant to the warrant should have been suppressed, but altered the legal basis supporting this conclusion: the large barn was not within the curtilage of the house, but by standing outside the barn and peering into the structure, the officers nonetheless violated respondent's "reasonable expectation of privacy in his barn and its contents." The Government again filed a petition for certiorari. On January 17, before this Court acted on the petition, the Court of Appeals recalled and vacated its judgment issued on remand, stating that it would enter a new judgment in due course. On February 4, the Court of Appeals reinstated the original opinion rendered in 1982, asserting that "[u]pon studied reflection, we now conclude and hold that the barn was inside the protected curtilage." The Government thereupon submitted a supplement to its petition for certiorari, revising the question presented *300 to whether the barn lay within the curtilage of the house. We granted the petition, and now reverse. II The curtilage concept originated at common law to extend to the area immediately surrounding a dwelling house the same protection under the law of burglary as was afforded the house The concept plays a part, however, in interpreting the reach of the Fourth Amendment. held that the Fourth Amendment's protection accorded "persons, houses, papers, and effects" did not extend to the open fields, the Court observing that the distinction between a person's house and open fields "is as old as the common law. 4 Bl. Comm. 223, 2, 226."[3] We reaffirmed the holding of Hester in There, we recognized that the Fourth Amendment protects the curtilage of a house and that the extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home We identified the central component of this inquiry as whether the area harbors the "intimate activity associated with the `sanctity of a man's home and the privacies of life.' " (quoting Boyd v. United (1)). *301 Drawing upon the Court's own cases and the cumulative experience of the lower courts that have grappled with the task of defining the extent of a home's curtilage, we believe that curtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. See (citing Care v. United (CA10), cert. denied, ; United v. Van Dyke, ).[4] We do not suggest that combining these factors produces a finely tuned formula that, when mechanically applied, yields a "correct" answer to all extent-of-curtilage questions. Rather, these factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration whether the area in question is so intimately tied to the home itself that it should be placed under the home's "umbrella" of Fourth Amendment protection. Applying these factors to respondent's barn and to the area immediately surrounding it, we have little difficulty in concluding that this area lay outside the curtilage of the ranch house. *302 First. The record discloses that the barn was located 50 yards from the fence surrounding the house and 60 yards from the house -883; 782 F. 2d, at 1228. Standing in isolation, this substantial distance supports no inference that the barn should be treated as an adjunct of the house. Second. It is also significant that respondent's barn did not lie within the area surrounding the house that was enclosed by a fence. We noted in that "for most homes, the boundaries of the curtilage will be clearly marked; and the conception defining the curtilage as the area around the home to which the activity of home life extends is a familiar one easily understood from our daily experience." n. 12. Viewing the physical layout of respondent's ranch in its entirety, see it is plain that the fence surrounding the residence serves to demark a specific area of land immediately adjacent to the house that is readily identifiable as part and parcel of the house. Conversely, the barn the front portion itself enclosed by a fence and the area immediately surrounding it, stands out as a distinct portion of respondent's ranch, quite separate from the residence. Third. It is especially significant that the law enforcement officials possessed objective data indicating that the barn was not being used for intimate activities of the home. The aerial photographs showed that the truck Carpenter had been driving that contained the container of phenylacetic acid was backed up to the barn, "apparently," in the words of the Court of Appeals, "for the unloading of its contents." When on respondent's property, the officers' suspicion was further directed toward the barn because of "a very strong odor" of phenylacetic acid. App. 15. As the DEA agent approached the barn, he "could hear a motor running, like a pump motor of some sort" Furthermore, the officers detected an "extremely strong" odor of phenylacetic acid coming from a small crack in the *303 wall of the barn. Finally, as the officers were standing in front of the barn, immediately prior to looking into its interior through the netting material, "the smell was very, very strong [and the officers] could hear the motor running very loudly." When considered together, the above facts indicated to the officers that the use to which the barn was being put could not fairly be characterized as so associated with the activities and privacies of domestic life that the officers should have deemed the barn as part of respondent's home. Fourth. Respondent did little to protect the barn area from observation by those standing in the open fields. Nothing in the record suggests that the various interior fences on respondent's property had any function other than that of the typical ranch fence; the fences were designed and constructed to corral livestock, not to prevent persons from observing what lay inside the enclosed areas. III Respondent submits an alternative basis for affirming the judgment below, one that was presented to but ultimately not relied upon by the Court of Appeals. Respondent asserts that he possessed an expectation of privacy, independent from his home's curtilage, in the barn and its contents, because the barn is an essential part of his business. Brief for Respondent 9. Respondent overlooks the significance of We may accept, for the sake of argument, respondent's submission that his barn enjoyed Fourth Amendment protection and could not be entered and its contents seized without a warrant. But it does not follow on the record before us that the officers' conduct and the ensuing search and seizure violated the Constitution. reaffirmed the precept, established in Hester, that an open field is neither a "house" nor an "effect," and, therefore, "the government's intrusion upon the open fields is not one of those `unreasonable searches' *304 proscribed by the text of the Fourth Amendment." 466 U.S., 7. The Court expressly rejected the argument that the erection of fences on an open field at least of the variety involved in those cases and in the present case creates a constitutionally protected privacy interest. 2-183. "[T]he term `open fields' may include any unoccupied or undeveloped area outside of the curtilage. An open field need be neither `open' nor a `field' as those terms are used in common speech." 0, n. 11. It follows that no constitutional violation occurred here when the officers crossed over respondent's ranch-style perimeter fence, and over several similarly constructed interior fences, prior to stopping at the locked front gate of the barn. As previously mentioned, the officers never entered the barn, nor did they enter any other structure on respondent's premises. Once at their vantage point, they merely stood, outside the curtilage of the house and in the open fields upon which the barn was constructed, and peered into the barn's open front. And, standing as they were in the open fields, the Constitution did not forbid them to observe the phenylacetone laboratory located in respondent's barn. This conclusion flows naturally from our previous decisions. Under and Hester, there is no constitutional difference between police observations conducted while in a public place and while standing in the open fields. Similarly, the fact that the objects observed by the officers lay within an area that we have assumed, but not decided, was protected by the Fourth Amendment does not affect our conclusion. Last Term, in we held that warrantless naked-eye aerial observation of a home's curtilage did not violate the Fourth Amendment. We based our holding on the premise that the Fourth Amendment "has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares." Importantly, we deemed it irrelevant that the police observation at issue *305 was directed specifically at the identification of marijuana plants growing on an area protected by the Fourth Amendment. Finally, the plurality opinion in notes that it is "beyond dispute" that the action of a police officer in shining his flashlight to illuminate the interior of a car, without probable cause to search the car, "trenched upon no right secured by the Fourth Amendment." The holding in United v. Lee, 274 U.S. 5, is of similar import. Here, the officers' use of the beam of a flashlight, directed through the essentially open front of respondent's barn, did not transform their observations into an unreasonable search within the meaning of Fourth Amendment. The officers lawfully viewed the interior of respondent's barn, and their observations were properly considered by the Magistrate in issuing a search warrant for respondent's premises. Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered. JUSTICE SCALIA, concurring in part. I join JUSTICE WHITE's opinion with the exception of the paragraph in Part II headed "Third." It does not seem to me "especially significant that the law enforcement officials possessed objective data indicating that the barn was not being used for intimate activities of the home." Ante, at 302. What is significant is that the barn was not being so used, whether or not the law enforcement officials knew it. The officers' perceptions might be relevant to whether intrusion upon curtilage was nevertheless reasonable, but they are no more relevant to whether the barn was curtilage than to whether the house was a house. |
per_curiam | per_curiam | true | Sigler v. Parker | 1970-02-02T00:00:00 | null | https://www.courtlistener.com/opinion/108037/sigler-v-parker/ | https://www.courtlistener.com/api/rest/v3/clusters/108037/ | 1,970 | 1969-035 | 1 | 7 | 1 | In 1956 respondent was found guilty in a Nebraska court of first-degree murder; he was sentenced to life imprisonment. After exhausting his post-conviction remedies under Nebraska law, respondent petitioned the United States District Court for the District of Nebraska for a writ of habeas corpus. After an evidentiary hearing, the District Court dismissed the petition. One of the issues presented to the District Court was the voluntariness of confessions used against respondent at his trial. Relying on the findings of the state court in a *483 1965 post-conviction proceeding, the District Court concluded that the confessions were voluntarily given and hence admissible. The Court of Appeals for the Eighth Circuit, without reaching the other issues before it, reversed on the ground that respondent's confessions were involuntary. 413 F.2d 459 (1969). The court first found that the opinion of the Nebraska Supreme Court affirming respondent's conviction indicated that the trial judge had not found the confessions voluntary before admitting them into evidence. The court then found that this violation of the procedural rule of Jackson v. Denno, 378 U.S. 368 (1964), had tainted all subsequent findings of voluntariness in the Nebraska courts and in the District Court. Since it seemed "unlikely that either party has any additional substantial evidence on the voluntariness issue," 413 F.2d, at 463, the Court of Appeals chose to evaluate the confessions itself rather than to remand the case to allow the State to make an untainted determination on the voluntariness question. After examining the record of the trial and the post-conviction proceedings, the court held that the confessions could on no view of the evidence be deemed voluntary. On the basis of this determination, the court directed that the writ of habeas corpus should be granted unless within a reasonable time respondent was given a new trial from which the confessions were excluded.
We agree with the Court of Appeals that the record of proceedings in the trial court and the opinion of the Nebraska Supreme Court affirming respondent's conviction do not justify a conclusion that the trial judge made his own determination of voluntariness as required by Jackson v. Denno, supra. See Sims v. Georgia, 385 U.S. 538 (1967). In addition, we accept the Court of Appeals' determination that all subsequent findings of voluntariness were made at least in part in reliance on the first, procedurally defective, determination of the *484 admissibility of the confessions.[*] However, as indicated in our opinion in Jackson v. Denno, supra, at 391-396, the appropriate remedy when a federal court finds a Jackson v. Denno error in a prior state proceeding is to allow the State a reasonable time to make an errorfree determination on the voluntariness of the confession at issue. Hence it was error for the Court of Appeals to pass judgment on the voluntariness of respondent's confessions without first permitting a Nebraska court to make such an evaluation uninfluenced by the apparent finding of voluntariness at the 1956 trial.
The writ of certiorari is granted. The judgment of the Court of Appeals is vacated and the case is remanded to that court for further proceedings consistent with this opinion.
It is so ordered.
MR. | In 1956 respondent was found guilty in a Nebraska court of first-degree murder; he was sentenced to life imprisonment. After exhausting his post-conviction remedies under Nebraska law, respondent petitioned the United States District Court for the District of Nebraska for a writ of habeas corpus. After an evidentiary hearing, the District Court dismissed the petition. One of the issues presented to the District Court was the voluntariness of confessions used against respondent at his trial. Relying on the findings of the state court in a *483 1965 post-conviction proceeding, the District Court concluded that the confessions were voluntarily given and hence admissible. The Court of Appeals for the Eighth Circuit, without reaching the other issues before it, reversed on the ground that respondent's confessions were involuntary. The court first found that the opinion of the Nebraska Supreme Court affirming respondent's conviction indicated that the trial judge had not found the confessions voluntary before admitting them into evidence. The court then found that this violation of the procedural rule of had tainted all subsequent findings of voluntariness in the Nebraska courts and in the District Court. Since it seemed "unlikely that either party has any additional substantial evidence on the voluntariness issue," the Court of Appeals chose to evaluate the confessions itself rather than to remand the case to allow the State to make an untainted determination on the voluntariness question. After examining the record of the trial and the post-conviction proceedings, the court held that the confessions could on no view of the evidence be deemed voluntary. On the basis of this determination, the court directed that the writ of habeas corpus should be granted unless within a reasonable time respondent was given a new trial from which the confessions were excluded. We agree with the Court of Appeals that the record of proceedings in the trial court and the opinion of the Nebraska Supreme Court affirming respondent's conviction do not justify a conclusion that the trial judge made his own determination of voluntariness as required by See In addition, we accept the Court of Appeals' determination that all subsequent findings of voluntariness were made at least in part in reliance on the first, procedurally defective, determination of the *484 admissibility of the confessions.[*] However, as indicated in our opinion in the appropriate remedy when a federal court finds a error in a prior state proceeding is to allow the State a reasonable time to make an errorfree determination on the voluntariness of the confession at issue. Hence it was error for the Court of Appeals to pass judgment on the voluntariness of respondent's confessions without first permitting a Nebraska court to make such an evaluation uninfluenced by the apparent finding of voluntariness at the 1956 trial. The writ of certiorari is granted. The judgment of the Court of Appeals is vacated and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. MR. |
Justice Stevens | dissenting | false | Raygor v. Regents of Univ. of Minn. | 2000-01-11T00:00:00 | null | https://www.courtlistener.com/opinion/118484/raygor-v-regents-of-univ-of-minn/ | https://www.courtlistener.com/api/rest/v3/clusters/118484/ | 2,000 | 2001-026 | 1 | 6 | 3 | The federal interest in the fair and efficient administration of justice is both legitimate and important. To vindicate that interest federal rulemakers and judges have occasionally imposed burdens on the States and their judiciaries. Thus, for example, Congress may provide for the adjudication of federal claims in state courts, Testa v. Katt, 330 U.S. 386 (1947), and may direct that state litigation be stayed during the pendency of bankruptcy proceedings, 11 U.S. C. § 362(a). In appropriate cases federal judges may enjoin the prosecution of state judicial proceedings.[1] By virtue of the Supremacy Clause in Article VI of the Constitution, in all such cases the federal rules prevail "and the Judges in every *550 State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding."
The "supplemental jurisdiction" provisions of the Judicial Improvements Act of 1990, 28 U.S. C. § 1367 (1994 ed.), impose a lesser burden on the States than each of these examples, and do so only in a relatively narrow category of cases those in which both federal- and state-law claims are so related "that they form part of the same case or controversy." Adopting a recommendation of the Federal Courts Committee, Congress in § 1367(a) overruled our misguided decision in Finley v. United States, 490 U.S. 545 (1989), and expressly authorized federal courts to entertain such cases even when the state-law claim is against a party over whom there is no independent basis for federal jurisdiction.[2]
Subsection (d) of § 1367 responds to the risk that the plaintiff's state-law claim, even though timely when filed as a part of the federal lawsuit, may be dismissed after the state period of limitations has expired. To avoid the necessity of duplicate filings, it provides that the state statute shall be tolled while the claim is pending in federal court and for 30 days thereafter.[3] The impact of this provision on the defendant is minimal, because the timely filing in federal court provides it with the same notice as if a duplicate complaint had also been filed in state court.
*551 The tolling of statutes of limitations is, of course, an ancient [4] and widespread practice.[5] Some federal tolling statutes apply only to federal limitations periods,[6] but others apply to state statutes as well.[7] All of these statutes are broadly worded, and none of them excludes any special category of defendants. The plain text of all these statutes, including *552 § 1367, applies to cases in which a State, or an arm of a State, is named as a defendant. Thus, as the Minnesota Court of Appeals correctly held, "the plain language of subsection (d) allows tolling of any claim dismissed by a federal district court, whether dismissed on Eleventh Amendment grounds or at the discretion of the federal district court under subsection (c)."[8]
The Minnesota Supreme Court reversed, because it considered this Court's holding in Alden v. Maine, 527 U.S. 706 (1999), to compel the view that § 1367(d) was an invalid attempt by Congress to make the State of Minnesota subject to suit in state court without its consent.[9] Unlike the State in Alden, however, Minnesota has given its consent to be sued in its own courts for alleged violations of the MHRA within 45 days of receipt of a notice letter from the State Department of Human Rights. The question whether that timeliness condition may be tolled during the pendency of an action filed in federal court within the 45-day period is quite different from the question whether Congress can entirely abrogate the State's sovereign immunity defense. For the Court's Eleventh Amendment jurisprudence concerns the question whether an unconsenting sovereign may be sued, rather than when a consenting sovereign may be sued.
The Court recognized this crucial distinction in Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990), a case in which the application of equitable tolling to a waiver of federal sovereign immunity was at issue. Although the Court required the Government's assent as to whether it may be sued to be "unequivocally expressed," it presumed the rule of equitable tolling applied once assent was established because tolling would "amoun[t] to little, if any, broadening of the congressional waiver." Id., at 95. The Court *553 reached this holding despite the inclusion in the waiver provision of a limitations period shorter than the one for suits against private parties.
The waiver at issue in this case is more unequivocally expressed than the one in Irwin. Minnesota has consented to suit under the MHRA by agreeing to be treated in the same manner as a private employer.[10] The 45-day limitations period is thus applicable to any suit under the MHRA, not only those against state entities. In light of such a clear consent to suit, unencumbered by any special limitations period, it is evident that tolling under § 1367(d) similarly "amounts to little, if any, broadening of the [legislature's] waiver."[11]Ibid. Given the fact that the timely filing in Federal Court served the purposes of the 45-day period,[12] it *554 seems to me quite clear that the application of the tolling rule does not raise a serious constitutional issue.[13]
It is true, of course, that the federal tolling provision, like any other federal statute that pre-empts state law, "affects the federal balance" even though it does not "constitut[e] an abrogation of state sovereign immunity." Ante, at 544. But that consequence is surely not sufficient to exclude state parties from the coverage of statutes of general applicability like the Bankruptcy Code, the Soldiers' and Sailors' Civil Relief Act of 1940, or any other federal statute whose general language creates a conflict with a pre-existing rule of state law.[14] In my judgment, the specific holding in Alden v. Maine represented a serious distortion of the federal balance intended by the Framers of our Constitution. If that case is now to provide the basis for a rule of construction that will exempt state parties from the coverage of federal statutes of general applicability, whether or not abrogation of Eleventh Amendment immunity is at stake, it will foster unintended and unjust consequences and impose serious burdens on an already-overworked Congress.[15] Indeed, that risk provides *555 an additional reason for reexamining that misguided decision at the earliest opportunity.
Accordingly, I respectfully dissent.
| The federal interest in the fair and efficient administration of justice is both legitimate and important. To vindicate that interest federal rulemakers and judges have occasionally imposed burdens on the States and their judiciaries. Thus, for example, Congress may provide for the adjudication of federal claims in state courts, and may direct that state litigation be stayed during the pendency of bankruptcy proceedings, 11 U.S. C. 362(a). In appropriate cases federal judges may enjoin the prosecution of state judicial proceedings.[1] By virtue of the Supremacy Clause in Article VI of the Constitution, in all such cases the federal rules prevail "and the Judges in every *550 State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." The "supplemental jurisdiction" provisions of the Judicial Improvements Act of 1990, 28 U.S. C. 1367 (1994 ed.), impose a lesser burden on the States than each of these examples, and do so only in a relatively narrow category of cases those in which both federal- and state-law claims are so related "that they form part of the same case or controversy." Adopting a recommendation of the Federal Courts Committee, Congress in 1367(a) overruled our misguided decision in and expressly authorized federal courts to entertain such cases even when the state-law claim is against a party over whom there is no independent basis for federal jurisdiction.[2] Subsection (d) of 1367 responds to the risk that the plaintiff's state-law claim, even though timely when filed as a part of the federal lawsuit, may be dismissed after the state period of limitations has expired. To avoid the necessity of duplicate filings, it provides that the state statute shall be tolled while the claim is pending in federal court and for 30 days thereafter.[3] The impact of this provision on the defendant is minimal, because the timely filing in federal court provides it with the same notice as if a duplicate complaint had also been filed in state court. *551 The tolling of statutes of limitations is, of course, an ancient [4] and widespread practice.[5] Some federal tolling statutes apply only to federal limitations periods,[6] but others apply to state statutes as well.[7] All of these statutes are broadly worded, and none of them excludes any special category of defendants. The plain text of all these statutes, including *552 1367, applies to cases in which a State, or an arm of a State, is named as a defendant. Thus, as the Minnesota Court of Appeals correctly held, "the plain language of subsection (d) allows tolling of any claim dismissed by a federal district court, whether dismissed on Eleventh Amendment grounds or at the discretion of the federal district court under subsection (c)."[8] The Minnesota Supreme Court reversed, because it considered this Court's holding in to compel the view that 1367(d) was an invalid attempt by Congress to make the State of Minnesota subject to suit in state court without its consent.[9] Unlike the State in Alden, however, Minnesota has given its consent to be sued in its own courts for alleged violations of the MHRA within 45 days of receipt of a notice letter from the State Department of Human Rights. The question whether that timeliness condition may be tolled during the pendency of an action filed in federal court within the 45-day period is quite different from the question whether Congress can entirely abrogate the State's sovereign immunity defense. For the Court's Eleventh Amendment jurisprudence concerns the question whether an unconsenting sovereign may be sued, rather than when a consenting sovereign may be sued. The Court recognized this crucial distinction in a case in which the application of equitable tolling to a waiver of federal sovereign immunity was at issue. Although the Court required the Government's assent as to whether it may be sued to be "unequivocally expressed," it presumed the rule of equitable tolling applied once assent was established because tolling would "amoun[t] to little, if any, broadening of the congressional waiver." The Court *553 reached this holding despite the inclusion in the waiver provision of a limitations period shorter than the one for suits against private parties. The waiver at issue in this case is more unequivocally expressed than the one in Irwin. Minnesota has consented to suit under the MHRA by agreeing to be treated in the same manner as a private employer.[10] The 45-day limitations period is thus applicable to any suit under the MHRA, not only those against state entities. In light of such a clear consent to suit, unencumbered by any special limitations period, it is evident that tolling under 1367(d) similarly "amounts to little, if any, broadening of the [legislature's] waiver."[11]Ibid. Given the fact that the timely filing in Federal Court served the purposes of the 45-day period,[12] it *554 seems to me quite clear that the application of the tolling rule does not raise a serious constitutional issue.[13] It is true, of course, that the federal tolling provision, like any other federal statute that pre-empts state law, "affects the federal balance" even though it does not "constitut[e] an abrogation of state sovereign immunity." Ante, at 544. But that consequence is surely not sufficient to exclude state parties from the coverage of statutes of general applicability like the Bankruptcy Code, the Soldiers' and Sailors' Civil Relief Act of 1940, or any other federal statute whose general language creates a conflict with a pre-existing rule of state law.[14] In my judgment, the specific holding in represented a serious distortion of the federal balance intended by the Framers of our Constitution. If that case is now to provide the basis for a rule of construction that will exempt state parties from the coverage of federal statutes of general applicability, whether or not abrogation of Eleventh Amendment immunity is at stake, it will foster unintended and unjust consequences and impose serious burdens on an already-overworked Congress.[15] Indeed, that risk provides *555 an additional reason for reexamining that misguided decision at the earliest opportunity. Accordingly, I respectfully dissent. |
Justice Burger | majority | false | Haig v. Agee | 1981-06-29T00:00:00 | null | https://www.courtlistener.com/opinion/110554/haig-v-agee/ | https://www.courtlistener.com/api/rest/v3/clusters/110554/ | 1,981 | 1980-142 | 1 | 7 | 2 | The question presented is whether the President, acting through the Secretary of State, has authority to revoke a passport on the ground that the holder's activities in foreign countries are causing or are likely to cause serious damage to the national security or foreign policy of the United States.
*283 I
A
Philip Agee, an American citizen, currently resides in West Germany.[1] From 1957 to 1968, he was employed by the Central Intelligence Agency. He held key positions in the division of the Agency that is responsible for covert intelligence gathering in foreign countries. In the course of his duties at the Agency, Agee received training in clandestine operations, including the methods used to protect the identities of intelligence employees and sources of the United States overseas. He served in undercover assignments abroad and came to know many Government employees and other persons supplying information to the United States. The relationships of many of these people to our Government are highly confidential; many are still engaged in intelligence gathering.
In 1974, Agee called a press conference in London to announce his "campaign to fight the United States CIA wherever it is operating." He declared his intent "to expose CIA officers and agents and to take the measures necessary to drive them out of the countries where they are operating."[2]*284 Since 1974, Agee has, by his own assertion, devoted consistent effort to that program, and he has traveled extensively in other countries in order to carry it out. To identify CIA personnel in a particular country, Agee goes to the target country and consults sources in local diplomatic circles whom he knows from his prior service in the United States Government. He recruits collaborators and trains them in clandestine techniques designed to expose the "cover" of CIA employees and sources. Agee and his collaborators have repeatedly and publicly identified individuals and organizations located in foreign countries as undercover CIA agents, employees, or sources.[3] The record reveals that the identifications divulge classified information,[4] violate Agee's express contract not to make any public statements about Agency matters without prior clearance by the Agency,[5] have prejudiced *285 the ability of the United States to obtain intelligence,[6] and have been followed by episodes of violence against the persons and organizations identified.[7]
*286 In December 1979, the Secretary of State revoked Agee's passport and delivered an explanatory notice to Agee in West Germany. The notice states in part:
"The Department's action is predicated upon a determination made by the Secretary under the provisions of [22 CFR] Section 51.70 (b) (4) that your activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States. The reasons for the Secretary's determination are, in summary, as follows: Since the early 1970's it has been your stated intention to conduct a continuous campaign to disrupt the intelligence operations of the United States. In carrying out that campaign you have travelled in various countries (including, among others, Mexico, the United Kingdom, Denmark, Jamaica, Cuba, and Germany), and your activities in those countries have caused serious damage to the national security and foreign policy of the United States. Your stated intention to continue such activities threatens additional damage of the same kind."[8]
*287 The notice also advised Agee of his right to an administrative hearing[9] and offered to hold such a hearing in West Germany on 5 days' notice.
Agee at once filed suit against the Secretary.[10] He alleged that the regulation invoked by the Secretary, 22 CFR § 51.70 (b) (4) (1980), has not been authorized by Congress and is invalid; that the regulation is impermissibly overbroad; that the revocation prior to a hearing violated his Fifth Amendment right to procedural due process; and that the revocation violated a Fifth Amendment liberty interest in a right to travel and a First Amendment right to criticize Government policies. He sought declaratory and injunctive relief, and he moved for summary judgment on the question of the authority to promulgate the regulation and on the constitutional claims. For purposes of that motion, Agee conceded the Secretary's factual averments[11] and his claim that Agee's activities were causing or were likely to cause serious damage to the national security or foreign policy of the United States.[12] The District Court held that the regulation exceeded the statutory powers of the Secretary under the Passport Act of 1926, 22 U.S. C. § 211a,[13] granted summary *288 judgment for Agee, and ordered the Secretary to restore his passport. Agee v. Vance, 483 F. Supp. 729 (DC 1980).
B
A divided panel of the Court of Appeals affirmed. Agee v. Muskie, 203 U. S. App. D. C. 46, 629 F.2d 80 (1980). It held that the Secretary was required to show that Congress had authorized the regulation either by an express delegation or by implied approval of a "substantial and consistent" administrative practice, Zemel v. Rusk, 381 U.S. 1, 12 (1965). The court found no express statutory authority for the revocation. It perceived only one other case of actual passport revocation under the regulation since it was promulgated and only five other instances prior to that in which passports were actually denied "even arguably for national security or foreign policy reasons." 203 U. S. App. D. C., at 51-52, 629 F.2d, at 85-86. The Court of Appeals took note of the Secretary's reliance on "a series of statutes, regulations, proclamations, orders and advisory opinions dating back to 1856," but declined to consider those authorities, reasoning that "the criterion for establishing congressional assent by inaction is the actual imposition of sanctions and not the mere assertion of power." Id., at 52-53, 629 F.2d, at 86-87. The Court of Appeals held that its was not sufficient that "Agee's conduct may be considered by some to border on treason," since "[w]e are bound by the law as we find it." Id., at 53, 629 F.2d, at 87. The court also regarded it as material that most of the Secretary's authorities dealt with powers of the Executive Branch "during time of war or national emergency"[14]*289 or with respect to persons "engaged in criminal conduct."[15]Id., at 52, 629 F.2d, at 86.
We granted certiorari sub nom. Muskie v. Agee, 449 U.S. 818 (1980), and stayed the judgment of the Court of Appeals until our disposition of the case on the grant of certiorari.[16]
II
The principal question before us is whether the statute authorizes the action of the Secretary pursuant to the policy announced by the challenged regulation.[17]
A
1
Although the historical background that we develop later *290 is important, we begin with the language of the statute. See, e. g., Universities Research Assn. v. Coutu, 450 U.S. 754. 771 (1981); Zemel, supra, at 7-8. The Passport Act of 1926 provides in pertinent part:
"The Secretary of State may grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries by diplomatic representatives of the United States . . . under such rules as the President shall designated and prescribe for and on behalf of the United States, and no other person shall grant, issue, or verify such passports." 22 U.S. C. § 211a (1976 ed., Supp. IV).
This language is unchanged since its original enactment in 1926.[18]
The Passport Act does not in so many words confer upon the Secretary a power to revoke a passport. Nor, for that matter, does it expressly authorize denials of passport applications.[19] Neither, however, does any statute expressly limit those powers. It is beyond dispute that the Secretary has the power to deny a passport for reasons not specified in the statutes. For example, in Kent v. Dulles, 357 U.S. 116 (1958), the Court recognized congressional acquiescence in Executive policies of refusing passports to applicants "participating in illegal conduct, trying to escape the toils of the law, promoting passport frauds, or otherwise engaging in conduct which would violate the laws of the United States." Id., at 127. In Zemel, the Court held that "the weightiest *291 considerations of national security" authorized the Secretary to restrict travel to Cuba at the time of the Cuban missile crisis. 381 U.S., at 16. Agee concedes that if the Secretary may deny a passport application for a certain reason, he may revoke a passport on the same ground.[20]
2
Particularly in light of the "broad rule-making authority granted in the [1926] Act," Zemel, 381 U. S., at 12, a consistent administrative construction of that statute must be followed by the courts "`unless there are compelling indications that it is wrong.'" E. I. du Pont de Nemours & Co. v. Collins, 432 U.S. 46, 55 (1977), quoting Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381 (1969); see Zemel, supra, at 11. This is especially so in the areas of foreign policy and national security, where congressional silence is not to be equated with congressional disapproval.[21] In United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), the volatile nature of problems confronting the Executive in foreign policy and national defense was underscored:
"In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. . . . As Marshall said in his great argument of March 7, 1800, in the House of Representatives, `The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.' " Id., at 319.
*292 Applying these considerations to statutory construction, the Zemel Court observed:
"[B]ecause of the changeable and explosive nature of contemporary international relations, and the fact that the Executive is immediately privy to information which cannot be swiftly presented to, evaluated by, and acted upon by the legislature, Congressin giving the Executive authority over matters of foreign affairsmust of necessity paint with a brush broader than that it customarily wields in domestic areas." 381 U. S., at 17 (emphasis supplied).
Matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention. In Harisiades v. Shaughnessy, 342 U.S. 580 (1952), the Court observed that matters relating "to the conduct of foreign relations . . . are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference." Id., at 589; accord, Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948).
B
1
A passport is, in a sense, a letter of introduction in which the issuing sovereign vouches for the bearer and requests other sovereigns to aid the bearer. 3 G. Hackworth, Digest of International Law § 268, p. 499 (1942). Very early, the Court observed:
"[A passport] is a document, which, from its nature and object, is addressed to foreign powers; purporting only to be a request, that the bearer of it may pass safely and freely; and is to be considered rather in the character of a political document, by which the bearer is recognised, in foreign countries, as an American citizen; and *293 which, by usage and the law of nations, is received as evidence of the fact." Urtetiqui v. D'Arcy, 9 Pet. 692, 698 (1835).
With the enactment of travel control legislation making a passport generally a requirement for travel abroad,[22] a passport took on certain added characteristics. Most important for present purposes, the only means by which an American can lawfully leave the country or return to itabsent a Presidentially granted exceptionis with a passport. See 8 U.S. C. § 1185 (b) (1976 ed., Supp. IV). As a travel control document, a passport is both proof of identity and proof of allegiance to the United States. Even under a travel control statute, however, a passport remains in a sense a document by which the Government vouches for the bearer and for his conduct.
The history of passport controls since the earliest days of the Republic shows congressional recognition of Executive authority to withhold passports on the basis of substantial reasons of national security and foreign policy. Prior to 1856, when there was no statute on the subject, the common perception was that the issuance of a passport was committed to the sole discretion of the Executive and that the Executive would exercise this power in the interests of the national security and foreign policy of the United States.[23] This derived from the generally accepted view that foreign policy *294 was the province and responsibility of the Executive.[24] From the outset, Congress endorsed not only the underlying premise of Executive authority in the areas of foreign policy and national security, but also its specific application to the subject of passports. Early Congresses enacted statutes expressly recognizing the Executive authority with respect to passports.[25]
The first Passport Act, adopted in 1856, provided that the Secretary of State "shall be authorized to grant and issue passports . . . under such rules as the President shall designate and prescribe for and on behalf of the United States . . . ." § 23, 11 Stat. 60.[26] This broad and permissive language worked no change in the power of the Executive to issue passports; nor was it intended to do so. The Act was passed to centralize passport authority in the Federal Government[27] and specifically in the Secretary of State.[28] In all other respects, the 1856 Act
"merely confirmed an authority already possessed and *295 exercised by the Secretary of State. This authority was ancillary to his broader authority to protect American citizens in foreign countries and was necessarily incident to his general authority to conduct the foreign affairs of the United States under the Chief Executive." Senate Committee on Government Operations, Reorganization of the Passport Functions of the Department of State, 86th Cong., 2d Sess., 13 (Comm. Print 1960).
The President and the Secretary of State consistently construed the 1856 Act to preserve their authority to withhold passports on national security and foreign policy grounds. Thus, as an emergency measure in 1861, the Secretary issued orders prohibiting persons from going abroad or entering the country without passports; denying passports to citizens who were subject to military service unless they were bonded; and absolutely denying passports to persons "on errands hostile and injurious to the peace of the country and dangerous to the Union." 3 J. Moore, A Digest of International Law 920 (1906); U. S. Dept. of State, The American Passport 49-54 (1898).[29] An 1869 opinion of Attorney General Hoar held that the granting of a passport was not "obligatory in any case." 13 Op. Atty. Gen. 89, 92. This was elaborated in 1901 in an opinion of Attorney General Knox, in which he stated:
"Substantial reasons exist for the use by Congress of the word `may' in connection with authority to issue passports. Circumstances are conceivable which would make it most inexpedient for the public interests for this *296 country to grant a passport to a citizen of the United States." 23 Op. Atty. Gen. 509, 511.
In 1903, President Theodore Roosevelt promulgated a rule providing that "[t]he Secretary of State has the right in his discretion to refuse to issue a passport, and will exercise this right towards anyone who, he has reason to believe, desires a passport to further an unlawful or improper purpose."[30] Subsequent Executive Orders issued between 1907 and 1917 cast no doubt on this position.[31] This policy was enforced in peacetime years to deny passports to citizens whose conduct abroad was "likely to embarrass the United States"[32] or who were "disturbing, or endeavoring to disturb, the relations of this country with the representatives of foreign countries."[33]
By enactment of the first travel control statute in 1918,[34]*297 Congress made clear its expectation that the Executive would curtail or prevent international travel by American citizens if it was contrary to the national security. The legislative history reveals that the principal reason for the 1918 statute was fear that "renegade Americans" would travel abroad and engage in "transference of important military information" to persons not entitled to it.[35] The 1918 statute left the power to make exceptions exclusively in the hands of the Executive, without articulating specific standards. Unless the Secretary had power to apply national security criteria in passport decisions, the purpose of the Travel Control Act would plainly have been frustrated.
Against this background, and while the 1918 provisions were still in effect, Congress enacted the Passport Act of 1926. The legislative history of the statute is sparse. However, Congress used language which is identical in pertinent part to that in the 1856 statute (supra, at 294), as amended,[36] and the legislative history clearly shows congressional awareness of the Executive policy.[37] There is no evidence of any intent to repudiate the longstanding administrative construction.[38] Absent such evidence, we conclude that Congress, in *298 1926, adopted the longstanding administrative construction of the 1856 statute. See Lorillard v. Pons, 434 U.S. 575, 580-581 (1978).
The Executive construed the 1926 Act to work no change in prior practice and specifically interpreted it to authorize denial of a passport on grounds of national security or foreign policy. Indeed, by an unbroken line of Executive Orders,[39] regulations,[40] instructions to consular officials.[41] and notices to passport holders,[42] the President and the Department of State left no doubt that likelihood of damage to national security or foreign policy of the United States was the single most important criterion in passport decisions. The regulations are instructive. The 1952 version authorized denial of passports to citizens engaged in activities which would violate laws designed to protect the security of the United States "[i]n order to promote the national interest by assuring that the conduct of foreign relations shall be free *299 from unlawful interference." 17 Fed. Reg. 8013 (1952). The 1956 amendment to this regulation provided that a passport should be denied to any person whose
"activities abroad would: (a) Violate the laws of the United States; (b) be prejudicial to the orderly conduct of foreign relations; or (c) otherwise be prejudicial to the interests of the United States." 22 CFR § 51.136 (1958).
This regulation remained in effect continuously until 1966.
This history of administrative construction was repeatedly communicated to Congress, not only by routine promulgation of Executive Orders and regulations, but also by specific presentations, including 1957 and 1966 reports by the Department of State explaining the 1956 regulation[43] and a 1960 Senate Staff Report which concluded that "the authority to issue or withhold passports has, by precedent and law, been vested in the Secretary of State as a part of his responsibility to protect American citizens traveling abroad, and what he considered to be the best interests of the Nation."[44]
In 1966, the Secretary of State[45] promulgated the regulations at issue in this case. 22 CFR §§ 51.70 (b)(4), 51.71 (a) (1980). Closely paralleling the 1956 regulation, these provisions authorize revocation of a passport where "[t]he Secretary determines that the national's activities abroad are *300 causing or are likely to cause serious damage to the national security or the foreign policy of the United States."[46]
2
Zemel recognized that congressional acquiescence may sometimes be found from nothing more than silence in the face of an administrative policy. 381 U.S., at 11; see Udall v. Tallman, 380 U.S. 1, 16-18 (1965); Norwegian Nitrogen Co. v. United States, 288 U.S. 294, 313 (1933); Costanzo v. Tillinghast, 287 U.S. 341, 345 (1932). Here, however, the inference of congressional approval "is supported by more than mere congressional inaction." Zemel, 381 U. S., at 11-12. Twelve years after the promulgation of the regulations at issue and 22 years after promulgation of the similar 1956 regulation, Congress enacted the statute making it unlawful to travel abroad without a passport even in peacetime. 8 U.S. C. § 1185 (b) (1976 ed., Supp. IV).[47] Simultaneously, Congress amended the Passport Act of 1926 to provide that "[u]nless authorized by law," in the absence of war, armed hostilities, or imminent danger to travelers, a passport may not be geographically restricted.[48] Title 8 U.S. C. § 1185 (b) (1976 ed., Supp. IV) must be read in pari materia with the *301 Passport Act. Zemel, supra, at 11-12; see 2A C. Sands, Sutherland on Statutory Construction § 51.03, p. 299 (4th ed. 1973); cf. Erlenbaugh v. United States, 409 U.S. 239, 243-244 (1972).[49]
The 1978 amendments are weighty evidence of congressional approval of the Secretary's interpretation, particularly that in the 1966 regulations. Despite the longstanding and officially promulgated view that the Executive had the power to withhold passports for reasons of national security and foreign policy, Congress in 1978, "though it once again enacted legislation relating to passports, left completely untouched the broad rule-making authority granted in the earlier Act." Zemel, supra, at 12; accord, NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-275 (1974).[50]
3
Agee argues that the only way the Executive can establish implicit congressional approval is by proof of longstanding and consistent enforcement of the claimed power: that is, by showing that many passports were revoked on national *302 security and foreign policy grounds. For this proposition, he relies on Kent, 357 U. S., at 127-128.[51]
A necessary premise for Agee's contention is that there were frequent occasions for revocation and that the claimed Executive power was exercised in only a few of those cases. However, if there were no occasionsor fewto call the Secretary's authority into play, the absence of frequent instances of enforcement is wholly irrelevant. The exercise of a power emerges only in relation to a factual situation, and the continued validity of the power is not diluted simply because there is no need to use it.
The history is clear that there have been few situations involving substantial likelihood of serious damage to the national security or foreign policy of the United States as a result of a passport holder's activities abroad, and that in the cases which have arisen, the Secretary has consistently exercised his power to withhold passports. Perhaps the most notable example of enforcement of the administrative policy, which surely could not have escaped the attention of Congress, was the 1948 denial of a passport to a Member of Congress who sought to go abroad to support a movement in Greece to overthrow the existing government.[52] Another example was the 1954 revocation of a passport held by a man who was supplying arms to groups abroad whose interests were contrary to positions taken by the United States.[53] In 1970, the Secretary revoked passports of two persons who sought to travel to the site of an international airplane hijacking.[54] See also Note, 61 Yale L. J. 170, 174-176 (1952).
*303 The Secretary has construed and applied his regulations consistently, and it would be anomalous to fault the Government because there were so few occasions to exercise the announced policy and practice. Although a pattern of actual enforcement is one indicator of Executive policy, it suffices that the Executive has "openly asserted" the power at issue. Zemel, 381 U. S., at 9; see id., at 10.
Kent is not to the contrary. There, it was shown that the claimed governmental policy had not been enforced consistently. The Court stressed that "as respects Communists these are scattered rulings and not consistently of one pattern." 357 U.S., at 128. In other words, the Executive had allowed passports to some Communists, but sought to deny one to Kent. The Court had serious doubts as to whether there was in reality any definite policy in which Congress could have acquiesced. Here, by contrast, there is no basis for a claim that the Executive has failed to enforce the policy against others engaged in conduct likely to cause serious damage to our national security or foreign policy. It would turn Kent on its head to say that simply because we have had only a few situations involving conduct such as that in this record, the Executive lacks the authority to deal with the problem when it is encountered.[55]
Agee also contends that the statements of Executive policy are entitled to diminished weight because many of them concern the powers of the Executive in wartime. However, the statute provides no support for this argument. History eloquently attests that grave problems of national security and foreign policy are by no means limited to times of formally declared war.[56]
*304 Relying on the statement of the Court in Kent that "illegal conduct" and problems of allegiance were, "so far as relevant here, . . . the only [grounds] which it could fairly be argued were adopted by Congress in light of prior administrative practice," id., at 127-128, Agee argues that this enumeration was exclusive and is controlling here. This is not correct.
The Kent Court had no occasion to consider whether the Executive had the power to revoke the passport of an individual whose conduct is damaging the national security and foreign policy of the United States. Kent involved denials of passports solely on the basis of political beliefs entitled to First Amendment protection. See Aptheker v. Secretary of State, 378 U.S. 500 (1964). Although finding it unnecessary to reach the merits of that constitutional problem, the Kent Court emphasized the fact that "[w]e deal with beliefs, with associations, with ideological matters." 357 U.S., at 130 (emphasis supplied). In particular, the Court noted that the applicants were
"being denied their freedom of movement solely because of their refusal to be subjected to inquiry into their beliefs and associations. They do not seek to escape the law nor to violate it. They may or may not be Communists. But assuming they are, the only law which Congress has passed expressly curtailing the movement of Communists across our borders has not yet become effective. It would therefore be strange to infer that pending the effectiveness of that law, the Secretary has been silently granted by Congress the larger, the more pervasive power to curtail in his discretion the free movement of citizens in order to satisfy himself about their beliefs or associations." Ibid. (footnote omitted).
*305 The protection accorded beliefs standing alone is very different from the protection accorded conduct. Thus, in Aptheker v. Secretary of State, supra, the Court held that a statute which, like the policy at issue in Kent, denied passports to Communists solely on the basis of political beliefs unconstitutionally "establishes an irrebuttable presumption that individuals who are members of the specified organizations will, if given passports, engage in activities inimical to the security of the United States." 378 U.S., at 511. The Court recognized that the legitimacy of the objective of safeguarding our national security is "obvious and unarguable." Id., at 509. The Court explained that the statute at issue was not the least restrictive alternative available: "The prohibition against travel is supported only by a tenuous relationship between the bare fact of organizational membership and the activity Congress sought to proscribe." Id., at 514.
Beliefs and speech are only part of Agee's "campaign to fight the United States CIA." In that sense, this case contrasts markedly with the facts in Kent and Aptheker.[57] No presumptions, rebuttable or otherwise, are involved, for Agee's *306 conduct in foreign countries presents a serious danger to American officials abroad and serious danger to the national security.[58]
We hold that the policy announced in the challenged regulations is "sufficiently substantial and consistent" to compel the conclusion that Congress has approved it. See Zemel, 381 U. S., at 12.
III
Agee also attacks the Secretary's action on three constitutional grounds: first, that the revocation of his passport impermissibly burdens his freedom to travel; second, that the action was intended to penalize his exercise of free speech and deter his criticism of Government policies and practices; and third, that failure to accord him a prerevocation hearing violated his Fifth Amendment right to procedural due process.
In light of the express language of the passport regulations, which permits their application only in cases involving likelihood of "serious damage" to national security or foreign policy, these claims are without merit.
Revocation of a passport undeniably curtails travel, but the freedom to travel abroad with a "letter of introduction" in the form of a passport issued by the sovereign is subordinate to national security and foreign policy considerations; as such, it is subject to reasonable governmental regulation. The Court has made it plain that the freedom to travel outside the United States must be distinguished from the right to travel within the United States. This was underscored in Califano v. Aznavorian, 439 U.S. 170, 176 (1978):
"Aznavorian urges that the freedom of international travel is basically equivalent to the constitutional right to interstate travel, recognized by this Court for over 100 years. Edwards v. California, 314 U.S. 160; Twining v. New Jersey, 211 U.S. 78, 97; Williams v. Fears, 179 *307 U. S. 270, 274; Crandall v. Nevada, 6 Wall. 35, 43-44; Passenger Cases, 7 How. 283, 492 (Taney, C. J., dissenting). But this Court has often pointed out the crucial difference between the freedom to travel internationally and the right of interstate travel.
"`The constitutional right of interstate travel is virtually unqualified, United States v. Guest, 383 U.S. 745, 757-758 (1966); Griffin v. Breckenridge, 403 U.S. 88, 105-106 (1971). By contrast the "right" of international travel has been considered to be no more than an aspect of the "liberty" protected by the Due Process Clause of the Fifth Amendment. As such this "right," the Court has held, can be regulated within the bounds of due process.' (Citations omitted.) Califano v. Torres, 435 U.S. 1, 4 n. 6."
It is "obvious and unarguable" that no governmental interest is more compelling than the security of the Nation. Aptheker v. Secretary of State, 378 U. S., at 509; accord Cole v. Young, 351 U.S. 536, 546 (1956); see Zemel, supra, at 13-17. Protection of the foreign policy of the United States is a governmental interest of great importance, since foreign policy and national security considerations cannot neatly be compartmentalized.
Measures to protect the secrecy of our Government's foreign intelligence operations plainly serve these interests. Thus, in Snepp v. United States, 444 U.S. 507, 509, n. 3 (1980), we held that "[t]he Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service." See also id., at 511-513. The Court in United States v. Curtiss-Wright Export Corp. properly emphasized:
"[The President] has his confidential sources of information. He has his agents in the form of diplomatic, *308 consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results." 299 U.S., at 320.
Accord, Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U. S., at 111; The Federalist No. 64, pp. 392-393 (Mentor ed. 1961).
Not only has Agee jeopardized the security of the United States, but he has also endangered the interests of countries other than the United States[59]thereby creating serious problems for American foreign relations and foreign policy. Restricting Agee's foreign travel, although perhaps not certain to prevent all of Agee's harmful activities, is the only avenue open to the Government to limit these activities.[60]
Assuming, arguendo, that First Amendment protections reach beyond our national boundaries, Agee's First Amendment claim has no foundation. The revocation of Agee's passport rests in part on the content of his speech: specifically, his repeated disclosures of intelligence operations and names of intelligence personnel. Long ago, however, this Court recognized that "[n]o one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops." Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931), citing Z. Chafee, Freedom of Speech 10 (1920). Agee's disclosures, among other *309 things, have the declared purpose of obstructing intelligence operations and the recruiting of intelligence personnel. They are clearly not protected by the Constitution. The mere fact that Agee is also engaged in criticism of the Government does not render his conduct beyond the reach of the law.
To the extent the revocation of his passport operates to inhibit Agee, "it is an inhibition of action," rather than of speech. Zemel, 381 U. S., at 16-17 (emphasis supplied). Agee is as free to criticize the United States Government as he was when he held a passportalways subject, of course, to express limits on certain rights by virtue of his contract with the Government.[61] See Snepp v. United States, supra.
On this record, the Government is not required to hold a prerevocation hearing. In Cole v. Young, supra, we held that federal employees who hold "sensitive" positions "where they could bring about any discernible adverse effects on the Nation's security" may be suspended without a presuspension hearing. 351 U.S., at 546-547. For the same reasons, when there is a substantial likelihood of "serious damage" to national security or foreign policy as a result of a passport holder's activities in foreign countries, the Government may take action to ensure that the holder may not exploit the sponsorship of his travels by the United States. "[W]hile the Constitution protects against invasions of individual rights, it is not *310 a suicide pact." Kennedy v. Mendoza-Martinez, 372 U.S. 144. 160 (1963). The Constitution's due process guarantees call for no more than what has been accorded here: a statement of reasons and an opportunity for a prompt postrevocation hearing.[62]
We reverse the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion.
Reversed and remanded. | The question presented is whether the President, acting through the Secretary of has authority to revoke a passport on the ground that the holder's activities in foreign countries are causing or are likely to cause serious damage to the national security or foreign policy of the United s. *283 I A Philip Agee, an American citizen, currently resides in West Germany.[1] From 1957 to 1968, he was employed by the Central Intelligence Agency. He held key positions in the division of the Agency that is responsible for covert intelligence gathering in foreign countries. In the course of his duties at the Agency, Agee received training in clandestine operations, including the methods used to protect the identities of intelligence employees and sources of the United s overseas. He served in undercover assignments abroad and came to know many Government employees and other persons supplying information to the United s. The relationships of many of these people to our Government are highly confidential; many are still engaged in intelligence gathering. In 14, Agee called a press conference in London to announce his "campaign to fight the United s CIA wherever it is operating." He declared his intent "to expose CIA officers and agents and to take the measures necessary to drive them out of the countries where they are operating."[2]*284 Since 14, Agee has, by his own assertion, devoted consistent effort to that program, and he has traveled extensively in other countries in order to carry it out. To identify CIA personnel in a particular country, Agee goes to the target country and consults sources in local diplomatic circles whom he knows from his prior service in the United s Government. He recruits collaborators and trains them in clandestine techniques designed to expose the "cover" of CIA employees and sources. Agee and his collaborators have repeatedly and publicly identified individuals and organizations located in foreign countries as undercover CIA agents, employees, or sources.[3] The record reveals that the identifications divulge classified information,[4] violate Agee's express contract not to make any public statements about Agency matters without prior clearance by the Agency,[5] have prejudiced *285 the ability of the United s to obtain intelligence,[6] and have been followed by episodes of violence against the persons and organizations identified.[7] *286 In December 19, the Secretary of revoked Agee's passport and delivered an explanatory notice to Agee in West Germany. The notice states in part: "The Department's action is predicated upon a determination made by the Secretary under the provisions of [22 CFR] Section 51.70 (4) that your activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United s. The reasons for the Secretary's determination are, in summary, as follows: Since the early 10's it has been your stated intention to conduct a continuous campaign to disrupt the intelligence operations of the United s. In carrying out that campaign you have travelled in various countries (including, among others, Mexico, the United Kingdom, Denmark, Jamaica, Cuba, and Germany), and your activities in those countries have caused serious damage to the national security and foreign policy of the United s. Your stated intention to continue such activities threatens additional damage of the same kind."[8] *287 The notice also advised Agee of his right to an administrative hearing[9] and offered to hold such a hearing in West Germany on 5 days' notice. Agee at once filed suit against the Secretary.[10] He alleged that the regulation invoked by the Secretary, (4) has not been authorized by Congress and is invalid; that the regulation is impermissibly overbroad; that the revocation prior to a hearing violated his Fifth Amendment right to procedural due process; and that the revocation violated a Fifth Amendment liberty interest in a right to travel and a First Amendment right to criticize Government policies. He sought declaratory and injunctive relief, and he moved for summary judgment on the question of the authority to promulgate the regulation and on the constitutional claims. For purposes of that motion, Agee conceded the Secretary's factual averments[11] and his claim that Agee's activities were causing or were likely to cause serious damage to the national security or foreign policy of the United s.[] The District Court held that the regulation exceeded the statutory powers of the Secretary under the Passport Act of 1926, 22 U.S. C. 211a,[13] granted summary *288 judgment for Agee, and ordered the Secretary to restore his passport. B A divided panel of the Court of Appeals affirmed. It held that the Secretary was required to show that Congress had authorized the regulation either by an express delegation or by implied approval of a "substantial and consistent" administrative practice, The court found no express statutory authority for the revocation. It perceived only one other case of actual passport revocation under the regulation since it was promulgated and only five other instances prior to that in which passports were actually denied "even arguably for national security or foreign policy reasons." 203 U. S. App. D. C., at -86. The Court of Appeals took note of the Secretary's reliance on "a series of s, regulations, proclamations, orders and advisory opinions dating back to 1856," but declined to consider those authorities, reasoning that "the criterion for establishing congressional assent by inaction is the actual imposition of sanctions and not the mere assertion of power." -87. The Court of Appeals held that its was not sufficient that "Agee's conduct may be considered by some to border on treason," since "[w]e are bound by the law as we find it." The court also regarded it as material that most of the Secretary's authorities dealt with powers of the Executive Branch "during time of war or national emergency"[14]*289 or with respect to persons "engaged in criminal conduct."[15] at We granted certiorari sub nom. and stayed the judgment of the Court of Appeals until our disposition of the case on the grant of certiorari.[16] II The principal question before us is whether the authorizes the action of the Secretary pursuant to the policy announced by the challenged regulation.[17] A 1 Although the historical background that we develop later *290 is important, we begin with the language of the See, e. g., Universities Research ; The Passport Act of 1926 provides in pertinent part: "The Secretary of may grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries by diplomatic representatives of the United s under such rules as the President shall designated and prescribe for and on behalf of the United s, and no other person shall grant, issue, or verify such passports." 22 U.S. C. 211a (16 ed., Supp. IV). This language is unchanged since its original enactment in 1926.[18] The Passport Act does not in so many words confer upon the Secretary a power to revoke a passport. Nor, for that matter, does it expressly authorize denials of passport applications.[19] Neither, however, does any expressly limit those powers. It is beyond dispute that the Secretary has the power to deny a passport for reasons not specified in the s. For example, in the Court recognized congressional acquiescence in Executive policies of refusing passports to applicants "participating in illegal conduct, trying to escape the toils of the law, promoting passport frauds, or otherwise engaging in conduct which would violate the laws of the United s." at 7. In the Court held that "the weightiest *291 considerations of national security" authorized the Secretary to restrict travel to Cuba at the time of the Cuban missile Agee concedes that if the Secretary may deny a passport application for a certain reason, he may revoke a passport on the same ground.[20] 2 Particularly in light of the "broad rule-making authority granted in the [1926] Act," U. S., at a consistent administrative construction of that must be followed by the courts "`unless there are compelling indications that it is wrong.'" E. I. du Pont de Nemours & quoting Red Lion Broadcasting ; see This is especially so in the areas of foreign policy and national security, where congressional silence is not to be equated with congressional disapproval.[21] In United the volatile nature of problems confronting the Executive in foreign policy and national defense was underscored: "In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, `The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.' " *292 Applying these considerations to statutory construction, the Court observed: "[B]ecause of the changeable and explosive nature of contemporary international relations, and the fact that the Executive is immediately privy to information which cannot be swiftly presented to, evaluated by, and acted upon by the legislature, Congressin giving the Executive authority over matters of foreign affairsmust of necessity paint with a brush broader than that it customarily wields in domestic areas." U. S., at 17 Matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention. In (19), the Court observed that matters relating "to the conduct of foreign relations are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference." ; accord, Chicago & Southern Air Lines, B 1 A passport is, in a sense, a letter of introduction in which the issuing sovereign vouches for the bearer and requests other sovereigns to aid the bearer. 3 G. Hackworth, Digest of International Law 268, p. 499 (1942). Very early, the Court observed: "[A passport] is a document, which, from its nature and object, is addressed to foreign powers; purporting only to be a request, that the bearer of it may pass safely and freely; and is to be considered rather in the character of a political document, by which the bearer is recognised, in foreign countries, as an American citizen; and *293 which, by usage and the law of nations, is received as evidence of the fact." With the enactment of travel control legislation making a passport generally a requirement for travel abroad,[22] a passport took on certain added characteristics. Most important for present purposes, the only means by which an American can lawfully leave the country or return to itabsent a Presidentially granted exceptionis with a passport. See 8 U.S. C. 1185 (16 ed., Supp. IV). As a travel control document, a passport is both proof of identity and proof of allegiance to the United s. Even under a travel control however, a passport remains in a sense a document by which the Government vouches for the bearer and for his conduct. The history of passport controls since the earliest days of the Republic shows congressional recognition of Executive authority to withhold passports on the basis of substantial reasons of national security and foreign Prior to 1856, when there was no on the subject, the common perception was that the issuance of a passport was committed to the sole discretion of the Executive and that the Executive would exercise this power in the interests of the national security and foreign policy of the United s.[23] This derived from the generally accepted view that foreign policy *294 was the province and responsibility of the Executive.[24] From the outset, Congress endorsed not only the underlying premise of Executive authority in the areas of foreign policy and national security, but also its specific application to the subject of passports. Early Congresses enacted s expressly recognizing the Executive authority with respect to passports.[25] The first Passport Act, adopted in 1856, provided that the Secretary of "shall be authorized to grant and issue passports under such rules as the President shall designate and prescribe for and on behalf of the United s" 23,[26] This broad and permissive language worked no change in the power of the Executive to issue passports; nor was it intended to do so. The Act was passed to centralize passport authority in the Federal Government[27] and specifically in the Secretary of[28] In all other respects, the 1856 Act "merely confirmed an authority already possessed and *295 exercised by the Secretary of This authority was ancillary to his broader authority to protect American citizens in foreign countries and was necessarily incident to his general authority to conduct the foreign affairs of the United s under the Chief Executive." Senate Committee on Government Operations, Reorganization of the Passport Functions of the Department of 86th Cong., 2d Sess., 13 (Comm. Print 1960). The President and the Secretary of consistently construed the 1856 Act to preserve their authority to withhold passports on national security and foreign policy grounds. Thus, as an emergency measure in 1861, the Secretary issued orders prohibiting persons from going abroad or entering the country without passports; denying passports to citizens who were subject to military service unless they were bonded; and absolutely denying passports to persons "on errands hostile and injurious to the peace of the country and dangerous to the Union." 3 J. Moore, A Digest of International Law 920 (1906); U. S. Dept. of The American Passport 49-54 (1898).[29] An 1869 opinion of Attorney General Hoar held that the granting of a passport was not "obligatory in any case." 13 Op. Atty. Gen. 89, 92. This was elaborated in 1901 in an opinion of Attorney General Knox, in which he stated: "Substantial reasons exist for the use by Congress of the word `may' in connection with authority to issue passports. Circumstances are conceivable which would make it most inexpedient for the public interests for this *296 country to grant a passport to a citizen of the United s." 23 Op. Atty. Gen. 509, 511. In 1903, President Theodore Roosevelt promulgated a rule providing that "[t]he Secretary of has the right in his discretion to refuse to issue a passport, and will exercise this right towards anyone who, he has reason to believe, desires a passport to further an unlawful or improper purpose."[30] Subsequent Executive Orders issued between 1907 and 1917 cast no doubt on this position.[31] This policy was enforced in peacetime years to deny passports to citizens whose conduct abroad was "likely to embarrass the United s"[32] or who were "disturbing, or endeavoring to disturb, the relations of this country with the representatives of foreign countries."[33] By enactment of the first travel control in 1918,[34]*2 Congress made clear its expectation that the Executive would curtail or prevent international travel by American citizens if it was contrary to the national security. The legislative history reveals that the principal reason for the 1918 was fear that "renegade Americans" would travel abroad and engage in "transference of important military information" to persons not entitled to it.[35] The 1918 left the power to make exceptions exclusively in the hands of the Executive, without articulating specific standards. Unless the Secretary had power to apply national security criteria in passport decisions, the purpose of the Travel Control Act would plainly have been frustrated. Against this background, and while the 1918 provisions were still in effect, Congress enacted the Passport Act of 1926. The legislative history of the is sparse. However, Congress used language which is identical in pertinent part to that in the 1856 ( ), as amended,[36] and the legislative history clearly shows congressional awareness of the Executive [37] There is no evidence of any intent to repudiate the longstanding administrative construction.[38] Absent such evidence, we conclude that Congress, in *298 1926, adopted the longstanding administrative construction of the 1856 See The Executive construed the 1926 Act to work no change in prior practice and specifically interpreted it to authorize denial of a passport on grounds of national security or foreign Indeed, by an unbroken line of Executive Orders,[39] regulations,[40] instructions to consular officials.[41] and notices to passport holders,[42] the President and the Department of left no doubt that likelihood of damage to national security or foreign policy of the United s was the single most important criterion in passport decisions. The regulations are instructive. The 19 version authorized denial of passports to citizens engaged in activities which would violate laws designed to protect the security of the United s "[i]n order to promote the national interest by assuring that the conduct of foreign relations shall be free *299 from unlawful interference." (19). The 1956 amendment to this regulation provided that a passport should be denied to any person whose "activities abroad would: (a) Violate the laws of the United s; be prejudicial to the orderly conduct of foreign relations; or (c) otherwise be prejudicial to the interests of the United s." 22 CFR 51.136 This regulation remained in effect continuously until 1966. This history of administrative construction was repeatedly communicated to Congress, not only by routine promulgation of Executive Orders and regulations, but also by specific presentations, including 1957 and 1966 reports by the Department of explaining the 1956 regulation[43] and a 1960 Senate Staff Report which concluded that "the authority to issue or withhold passports has, by precedent and law, been vested in the Secretary of as a part of his responsibility to protect American citizens traveling abroad, and what he considered to be the best interests of the Nation."[44] In 1966, the Secretary of [45] promulgated the regulations at issue in this case. 22 CFR 51.70 (4), 51.71 (a) Closely paralleling the 1956 regulation, these provisions authorize revocation of a passport where "[t]he Secretary determines that the national's activities abroad are *300 causing or are likely to cause serious damage to the national security or the foreign policy of the United s."[46] 2 recognized that congressional acquiescence may sometimes be found from nothing more than silence in the face of an administrative U.S., ; see ; Norwegian Nitrogen ; Here, however, the inference of congressional approval "is supported by more than mere congressional inaction." U. S., -. Twelve years after the promulgation of the regulations at issue and 22 years after promulgation of the similar 1956 regulation, Congress enacted the making it unlawful to travel abroad without a passport even in peacetime. 8 U.S. C. 1185 (16 ed., Supp. IV).[47] Simultaneously, Congress amended the Passport Act of 1926 to provide that "[u]nless authorized by law," in the absence of war, armed hostilities, or imminent danger to travelers, a passport may not be geographically restricted.[48] Title 8 U.S. C. 1185 (16 ed., Supp. IV) must be read in pari materia with the *301 Passport Act. -; see 2A C. Sands, Sutherland on Statutory Construction 51.03, p. 299 (4th ed. 13); cf.[49] The 18 amendments are weighty evidence of congressional approval of the Secretary's interpretation, particularly that in the 1966 regulations. Despite the longstanding and officially promulgated view that the Executive had the power to withhold passports for reasons of national security and foreign policy, Congress in 18, "though it once again enacted legislation relating to passports, left completely untouched the broad rule-making authority granted in the earlier Act." at ; accord,[50] 3 Agee argues that the only way the Executive can establish implicit congressional approval is by proof of longstanding and consistent enforcement of the claimed power: that is, by showing that many passports were revoked on national *302 security and foreign policy grounds. For this proposition, he relies on Kent, 357 U. S.,[51] A necessary premise for Agee's contention is that there were frequent occasions for revocation and that the claimed Executive power was exercised in only a few of those cases. However, if there were no occasionsor fewto call the Secretary's authority into play, the absence of frequent instances of enforcement is wholly irrelevant. The exercise of a power emerges only in relation to a factual situation, and the continued validity of the power is not diluted simply because there is no need to use it. The history is clear that there have been few situations involving substantial likelihood of serious damage to the national security or foreign policy of the United s as a result of a passport holder's activities abroad, and that in the cases which have arisen, the Secretary has consistently exercised his power to withhold passports. Perhaps the most notable example of enforcement of the administrative policy, which surely could not have escaped the attention of Congress, was the 1948 denial of a passport to a Member of Congress who sought to go abroad to support a movement in Greece to overthrow the existing government.[] Another example was the 1954 revocation of a passport held by a man who was supplying arms to groups abroad whose interests were contrary to positions taken by the United s.[] In 10, the Secretary revoked passports of two persons who sought to travel to the site of an international airplane hijacking.[54] See also Note, 61 Yale L. J. 170, 174- (19). *303 The Secretary has construed and applied his regulations consistently, and it would be anomalous to fault the Government because there were so few occasions to exercise the announced policy and practice. Although a pattern of actual enforcement is one indicator of Executive policy, it suffices that the Executive has "openly asserted" the power at issue. U. S., at 9; see Kent is not to the contrary. There, it was shown that the claimed governmental policy had not been enforced consistently. The Court stressed that "as respects Communists these are scattered rulings and not consistently of one pattern." 357 U.S., at 8. In other words, the Executive had allowed passports to some Communists, but sought to deny one to Kent. The Court had serious doubts as to whether there was in reality any definite policy in which Congress could have acquiesced. Here, by contrast, there is no basis for a claim that the Executive has failed to enforce the policy against others engaged in conduct likely to cause serious damage to our national security or foreign It would turn Kent on its head to say that simply because we have had only a few situations involving conduct such as that in this record, the Executive lacks the authority to deal with the problem when it is encountered.[] Agee also contends that the statements of Executive policy are entitled to diminished weight because many of them concern the powers of the Executive in wartime. However, the provides no support for this argument. History eloquently attests that grave problems of national security and foreign policy are by no means limited to times of formally declared war.[56] *304 Relying on the statement of the Court in Kent that "illegal conduct" and problems of allegiance were, "so far as relevant here, the only [grounds] which it could fairly be argued were adopted by Congress in light of prior administrative practice," Agee argues that this enumeration was exclusive and is controlling here. This is not correct. The Kent Court had no occasion to consider whether the Executive had the power to revoke the passport of an individual whose conduct is damaging the national security and foreign policy of the United s. Kent involved denials of passports solely on the basis of political beliefs entitled to First Amendment protection. See Although finding it unnecessary to reach the merits of that constitutional problem, the Kent Court emphasized the fact that "[w]e deal with beliefs, with associations, with ideological matters." In particular, the Court noted that the applicants were "being denied their freedom of movement solely because of their refusal to be subjected to inquiry into their beliefs and associations. They do not seek to escape the law nor to violate it. They may or may not be Communists. But assuming they are, the only law which Congress has passed expressly curtailing the movement of Communists across our borders has not yet become effective. It would therefore be strange to infer that pending the effectiveness of that law, the Secretary has been silently granted by Congress the larger, the more pervasive power to curtail in his discretion the free movement of citizens in order to satisfy himself about their beliefs or associations." *305 The protection accorded beliefs standing alone is very different from the protection accorded conduct. Thus, in the Court held that a which, like the policy at issue in Kent, denied passports to Communists solely on the basis of political beliefs unconstitutionally "establishes an irrebuttable presumption that individuals who are members of the specified organizations will, if given passports, engage in activities inimical to the security of the United s." The Court recognized that the legitimacy of the objective of safeguarding our national security is "obvious and unarguable." The Court explained that the at issue was not the least restrictive alternative available: "The prohibition against travel is supported only by a tenuous relationship between the bare fact of organizational membership and the activity Congress sought to proscribe." Beliefs and speech are only part of Agee's "campaign to fight the United s CIA." In that sense, this case contrasts markedly with the facts in Kent and Aptheker.[57] No presumptions, rebuttable or otherwise, are involved, for Agee's *306 conduct in foreign countries presents a serious danger to American officials abroad and serious danger to the national security.[58] We hold that the policy announced in the challenged regulations is "sufficiently substantial and consistent" to compel the conclusion that Congress has approved it. See U. S., at III Agee also attacks the Secretary's action on three constitutional grounds: first, that the revocation of his passport impermissibly burdens his freedom to travel; second, that the action was intended to penalize his exercise of free speech and deter his criticism of Government policies and practices; and third, that failure to accord him a prerevocation hearing violated his Fifth Amendment right to procedural due process. In light of the express language of the passport regulations, which permits their application only in cases involving likelihood of "serious damage" to national security or foreign policy, these claims are without merit. Revocation of a passport undeniably curtails travel, but the freedom to travel abroad with a "letter of introduction" in the form of a passport issued by the sovereign is subordinate to national security and foreign policy considerations; as such, it is subject to reasonable governmental regulation. The Court has made it plain that the freedom to travel outside the United s must be distinguished from the right to travel within the United s. This was underscored in : "Aznavorian urges that the freedom of international travel is basically equivalent to the constitutional right to interstate travel, recognized by this Court for over 100 years. ; ; ; ; Passenger Cases, (Taney, C. J., dissenting). But this Court has often pointed out the crucial difference between the freedom to travel internationally and the right of interstate travel. "`The constitutional right of interstate travel is virtually unqualified, United s v. Guest, ; (11). By contrast the "right" of international travel has been considered to be no more than an aspect of the "liberty" protected by the Due Process Clause of the Fifth Amendment. As such this "right," the Court has held, can be regulated within the bounds of due process.' (Citations omitted.) 4 n. 6." It is "obvious and unarguable" that no governmental interest is more compelling than the security of the Nation. 378 U. S., ; accord 351 U.S. 6, ; see Protection of the foreign policy of the United s is a governmental interest of great importance, since foreign policy and national security considerations cannot neatly be compartmentalized. Measures to protect the secrecy of our Government's foreign intelligence operations plainly serve these interests. Thus, in Snepp v. United s, we held that "[t]he Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service." See also The Court in United properly emphasized: "[The President] has his confidential sources of information. He has his agents in the form of diplomatic, *308 consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results." Accord, Chicago & Southern Air Lines, 333 U. S., 1; The Federalist No. 64, pp. 392-393 (Mentor ed. 1961). Not only has Agee jeopardized the security of the United s, but he has also endangered the interests of countries other than the United s[59]thereby creating serious problems for American foreign relations and foreign Restricting Agee's foreign travel, although perhaps not certain to prevent all of Agee's harmful activities, is the only avenue open to the Government to limit these activities.[60] Assuming, arguendo, that First Amendment protections reach beyond our national boundaries, Agee's First Amendment claim has no foundation. The revocation of Agee's passport rests in part on the content of his speech: specifically, his repeated disclosures of intelligence operations and names of intelligence personnel. Long ago, however, this Court recognized that "[n]o one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops." 283 U.S. 6, citing Z. Chafee, Freedom of Speech 10 (1920). Agee's disclosures, among other *309 things, have the declared purpose of obstructing intelligence operations and the recruiting of intelligence personnel. They are clearly not protected by the Constitution. The mere fact that Agee is also engaged in criticism of the Government does not render his conduct beyond the reach of the law. To the extent the revocation of his passport operates to inhibit Agee, "it is an inhibition of action," rather than of speech. U. S., at 16-17 Agee is as free to criticize the United s Government as he was when he held a passportalways subject, of course, to express limits on certain rights by virtue of his contract with the Government.[61] See Snepp v. United s, On this record, the Government is not required to hold a prerevocation In we held that federal employees who hold "sensitive" positions "where they could bring about any discernible adverse effects on the Nation's security" may be suspended without a presuspension 351 U.S., at -547. For the same reasons, when there is a substantial likelihood of "serious damage" to national security or foreign policy as a result of a passport holder's activities in foreign countries, the Government may take action to ensure that the holder may not exploit the sponsorship of his travels by the United s. "[W]hile the Constitution protects against invasions of individual rights, it is not *310 a suicide pact." The Constitution's due process guarantees call for no more than what has been accorded here: a statement of reasons and an opportunity for a prompt postrevocation [62] We reverse the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion. Reversed and remanded. |
Justice Scalia | majority | false | Lambrix v. Singletary | 1997-05-12T00:00:00 | null | https://www.courtlistener.com/opinion/118109/lambrix-v-singletary/ | https://www.courtlistener.com/api/rest/v3/clusters/118109/ | 1,997 | 1996-053 | 1 | 5 | 4 | We granted certiorari in this case to consider whether a prisoner whose conviction became final before our decision in Espinosa v. Florida, 505 U.S. 1079 (1992) (per curiam), is foreclosed from relying on that decision in a federal habeas corpus proceeding because it announced a "new rule" as defined in Teague v. Lane, 489 U.S. 288 (1989).
I
On February 5, 1983, Cary Michael Lambrix and his girlfriend, Frances Smith, met Clarence Moore and Aleisha Bryant at a local tavern. The two couples returned to Lambrix's trailer for dinner, where Lambrix killed Moore and Bryant in brutal fashion. Lambrix was convicted on two counts of first-degree murder. In the sentencing phase of trial, the jury rendered an advisory verdict recommending *521 that the trial court sentence Lambrix to death on both counts. The trial court, after finding five aggravating circumstances in connection with the murder of Moore, four aggravating circumstances in connection with the murder of Bryant, and no mitigating circumstances as to either murder, sentenced Lambrix to death on both counts. Lambrix's conviction and sentence were upheld on direct appeal by the Florida Supreme Court. Lambrix v. State, 494 So. 2d 1143 (1986).
After the Florida courts denied his repeated efforts to obtain collateral relief, Lambrix v. Dugger, 529 So. 2d 1110 (Fla. 1988); Lambrix v. State, 534 So. 2d 1151 (Fla. 1988); Lambrix v. State, 559 So. 2d 1137 (Fla. 1990), Lambrix filed a petition for a writ of habeas corpus pursuant to 28 U.S. C. § 2254 in the United States District Court for the Southern District of Florida; that court rejected all of his claims. While Lambrix's appeal was pending before the Court of Appeals for the Eleventh Circuit, this Court decided Espinosa v. Florida, supra, which held that if the sentencing judge in a "weighing" State (i. e., a State that requires specified aggravating circumstances to be weighed against any mitigating circumstances at the sentencing phase of a capital trial) is required to give deference to a jury's advisory sentencing recommendation, then neither the jury nor the judge is constitutionally permitted to weigh invalid aggravating circumstances. Since Florida is such a State, and since one of Lambrix's claims was that his sentencing jury was improperly instructed on the "especially heinous, atrocious, or cruel" (HAC) aggravator, Espinosa had obvious relevance to his habeas petition. Rather than address this issue in the first instance, however, the Eleventh Circuit held its proceedings in abeyance to permit Lambrix to present his Espinosa claim to the Florida state courts.
The Florida Supreme Court rejected Lambrix's Espinosa claim without considering its merits on the ground that the claim was procedurally barred. Lambrix v. Singletary, 641 *522 So. 2d 847 (1994). That court explained that although Lambrix had properly preserved his Espinosa objection at trial by requesting a limiting instruction on the HAC aggravator, he had failed to raise the issue on direct appeal. 641 So. 2d, at 848. The Florida Supreme Court also rejected Lambrix's claim that the procedural bar should be excused because his appellate counsel was ineffective in failing to raise the forfeited issue, explaining that this claim was itself procedurally barred and was, in any event, meritless. Id., at 848-849.
After the Florida Supreme Court entered judgment against Lambrix, the Eleventh Circuit adjudicated his habeas petition. Without even acknowledging the procedural barwhich was expressly raised and argued by the State the Court of Appeals proceeded to address the Espinosa claim, and determined that Espinosa announced a new rule which cannot be applied retroactively on federal habeas under Teague v. Lane, supra . 72 F.3d 1500, 1503 (1996). We granted certiorari. 519 U.S. 958 (1996).
II
Before turning to the question presented in this case, we pause to consider the State's contention that Lambrix's Espinosa claim is procedurally barred because he failed to contend that the jury was instructed with a vague HAC aggravator on his direct appeal to the Florida Supreme Court. According to the State, the Florida Supreme Court "has consistently required that an Espinosa issue must have been objected to at trial and pursued on direct appeal in order to be reviewed in postconviction proceedings." Brief for Respondent 30, citing Chandler v. Dugger, 634 So. 2d 1066, 1069 (Fla. 1994), Jackson v. Dugger, 633 So. 2d 1051, 1055 (Fla. 1993), and Henderson v. Singletary, 617 So. 2d 313 (Fla.), cert. denied, 507 U.S. 1047 (1993).
In Coleman v. Thompson, 501 U.S. 722, 729 (1991), we reaffirmed that this Court "will not review a question of federal law decided by a state court if the decision of that court *523 rests on a state law ground that is independent of the federal question and adequate to support the judgment." See also Harris v. Reed, 489 U.S. 255, 262 (1989). We in fact lack jurisdiction to review such independently supported judgments on direct appeal: Since the state-law determination is sufficient to sustain the decree, any opinion of this Court on the federal question would be purely advisory. Herb v. Pitcairn, 324 U.S. 117, 125-126 (1945); see also Sochor v. Florida, 504 U.S. 527, 533-534, and n. (1992). The "independent and adequate state ground" doctrine is not technically jurisdictional when a federal court considers a state prisoner's petition for habeas corpus pursuant to 28 U.S. C. § 2254, since the federal court is not formally reviewing a judgment, but is determining whether the prisoner is "in custody in violation of the Constitution or laws or treaties of the United States." We have nonetheless held that the doctrine applies to bar consideration on federal habeas of federal claims that have been defaulted under state law. Coleman, supra, at 729-730, 750; see also Wainwright v. Sykes, 433 U.S. 72, 81, 82 (1977), discussing Brown v. Allen, 344 U.S. 443, 486-487 (1953), and Ex parte Spencer, 228 U.S. 652 (1913); Harris, supra, at 262.
Application of the "independent and adequate state ground" doctrine to federal habeas review is based upon equitable considerations of federalism and comity. It "ensures that the States' interest in correcting their own mistakes is respected in all federal habeas cases." Coleman, 501 U. S., at 732. "[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." Ibid. If the "independent and adequate state ground" doctrine were not applied, a federal district court or court of appeals would be able to review claims that this Court would have been unable to consider on direct review. See id., at 730-731.
*524 We have never had occasion to consider whether a federal court should resolve a State's contention that a petitioner's claim is procedurally barred before considering whether his claim is Teague barred. Our opinions, howevermost particularly, Coleman certainly suggest that the proceduralbar issue should ordinarily be considered first. It was speculated at oral argument that the Court of Appeals may have resolved the Teague issue without first considering procedural bar because our opinions have stated that the Teague retroactivity decision is to be made as a "threshold matter." E. g., Penry v. Lynaugh, 492 U.S. 302, 329 (1989); Caspari v. Bohlen, 510 U.S. 383, 389 (1994). That simply means, however, that the Teague issue should be addressed "before considering the merits of [a] claim." 510 U.S., at 389. It does not mean that the Teague inquiry is antecedent to consideration of the general prerequisites for federal habeas corpus which are unrelated to the merits of the particular claim such as the requirement that the petitioner be "in custody," see 28 U.S. C. § 2254(a), or that the state-court judgment not be based on an independent and adequate state ground. Constitutional issues are generally to be avoided, and as even a cursory review of this Court's new-rule cases reveals (including our discussion in Part IV, infra ), the Teague inquiry requires a detailed analysis of federal constitutional law. See, e. g., Sawyer v. Smith, 497 U.S. 227, 233-241 (1990); Penry, supra, at 316-319; Gilmore v. Taylor, 508 U.S. 333, 339-344 (1993); Saffle v. Parks, 494 U.S. 484, 488-494 (1990).
We are somewhat puzzled that the Eleventh Circuit, after having held proceedings in abeyance while petitioner brought his claim in state court, did not so much as mention the Florida Supreme Court's determination that Lambrix's Espinosa claim was procedurally barred. The State of Florida raised that point before both the District Court and the Court of Appeals, going so far as to reiterate it in a postjudgment *525 Motion for Clarification and/or Modification of Opinion before the Court of Appeals, reprinted at App. 176. A State's procedural rules are of vital importance to the orderly administration of its criminal courts; when a federal court permits them to be readily evaded, it undermines the criminal justice system. We do not mean to suggest that the procedural-bar issue must invariably be resolved first; only that it ordinarily should be. Judicial economy might counsel giving the Teague question priority, for example, if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law. Cf. 28 U.S. C. § 2254(b)(2) (permitting a federal court to deny a habeas petition on the merits notwithstanding the applicant's failure to exhaust state remedies).
Despite our puzzlement at the Court of Appeals' failure to resolve this case on the basis of procedural bar, we hesitate to resolve it on that basis ourselves. Lambrix asserts several reasons why his claim is not procedurally barred, which seem to us insubstantial but may not be so; as we have repeatedly recognized, the courts of appeals and district courts are more familiar than we with the procedural practices of the States in which they regularly sit, see, e. g., Rummel v. Estelle, 445 U.S. 263, 267, n. 7 (1980); County Court of Ulster Cty. v. Allen, 442 U.S. 140, 153-154 (1979). Rather than prolong this litigation by a remand, we proceed to decide the case on the Teague grounds that the Court of Appeals used.
III
Florida employs a three-stage sentencing procedure. First, the jury weighs statutorily specified aggravating circumstances against any mitigating circumstances, and renders an "advisory sentence" of either life imprisonment or death. Fla. Stat. § 921.141(2) (Supp. 1992). Second, the trial court weighs the aggravating and mitigating circumstances, and enters a sentence of life imprisonment or death; *526 if the latter, its findings must be set forth in writing. § 921.141(3). The jury's advisory sentence is entitled to "great weight" in the trial court's determination, Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975), but the court has an independent obligation to determine the appropriate punishment, Ross v. State, 386 So. 2d 1191, 1197 (Fla. 1980). Third, the Florida Supreme Court automatically reviews all cases in which the defendant is sentenced to death. § 921.141(4).
Lambrix's jury, which was instructed on five aggravating circumstances, recommended that he be sentenced to death for each murder. The trial court found five aggravating circumstances as to Moore's murder and four as to Bryant's, including that each murder was "especially heinous and atrocious"; it found no mitigating circumstances as to either murder; it concluded that the aggravating circumstances outweighed the mitigating, and sentenced Lambrix to death on each count. App. 20-21. Although Lambrix failed to raise any claims concerning the sentencing procedure on direct appeal, the Florida Supreme Court agreed with the trial court's findings as to the aggravating circumstances. Lambrix v. State, 494 So. 2d, at 1148.
Lambrix contends that the jury's consideration of the HAC aggravator violated the Eighth Amendment because the jury instructions concerning this circumstance failed to provide sufficient guidance to limit the jury's discretion. Like the Eleventh Circuit, see 72 F.3d, at 1503, we assume, arguendo, that this was so. Lambrix further contends (and this is at the heart of the present case) that the trial court's independent weighing did not cure this error. Prior to our opinion in Espinosa v. Florida, 505 U.S. 1079 (1992), the State had contended that Lambrix was not entitled to relief because the sentencing judge properly found and weighed a narrowed HAC aggravator. In Espinosa, however, we established the principle that if a "weighing" State requires the sentencing trial judge to give deference to a jury's advisory recommendation, neither the judge nor the jury is constitutionally permitted *527 to weigh invalid aggravating circumstances. Lambrix seeks the benefit of that principle; the State contends that it constitutes a new rule under Teague and thus cannot be relied on in a federal habeas corpus proceeding.[1]
In Teague we held that, in general, "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." 489 U.S., at 310-311. To apply Teague, a federal court engages in a three-step process. First, it determines the date upon which the defendant's conviction became final. See Caspari v. Bohlen, 510 U. S., at 390. Second, it must "`[s]urve[y] the legal landscape as it then existed,' Graham v. Collins, [506 U.S. 461, 468 (1993)], and `determine whether a state court considering [the defendant's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution,' Saffle v. Parks, 494 U.S. 484, 488 (1990)." Ibid. Finally, if the court determines that the habeas petitioner seeks the benefit of a new rule, the court must consider whether the relief sought falls within one of the two narrow exceptions to nonretroactivity. See Gilmore v. Taylor, 508 U. S., at 345.
IV
Lambrix's conviction became final on November 24, 1986, when his time for filing a petition for certiorari expired. Thus, our first and principal task is to survey the legal landscape as of that date, to determine whether the rule later announced in Espinosa was dictated by then-existing precedentwhether, that is, the unlawfulness of Lambrix's *528 conviction was apparent to all reasonable jurists. See, e. g., Graham v. Collins, 506 U.S. 461, 477 (1993); Butler v. McKellar, 494 U.S. 407, 415 (1990); id., at 417-418 (Brennan, J., dissenting).
In Espinosa, we determined that the Florida capital jury is, in an important respect, a cosentencer with the judge. As we explained: "Florida has essentially split the weighing process in two. Initially, the jury weighs aggravating and mitigating circumstances, and the result of that weighing process is then in turn weighed within the trial court's process of weighing aggravating and mitigating circumstances." 505 U.S., at 1082. We then concluded that the jury's consideration of a vague aggravator tainted the trial court's sentence because the trial court gave deference to the jury verdict (and thus indirectly weighed the vague aggravator) in the course of weighing the aggravating and mitigating circumstances. Ibid. We reasoned that this indirect weighing created the same risk of arbitrariness as the direct weighing of an invalid aggravating factor. Ibid.[2]
In our view, Espinosa was not dictated by precedent, but announced a new rule which cannot be used as the basis for federal habeas corpus relief. It is significant that Espinosa itself did not purport to rely upon any controlling precedent.[3]*529 The opinion cited only a single case, Baldwin v. Alabama, 472 U.S. 372, 382 (1985), in support of its central conclusion that indirect weighing of an invalid aggravator "creates the same potential for arbitrariness" as direct weighing of an invalid aggravator. Espinosa, 505 U. S., at 1082. And it introduced that lone citation with a "cf."an introductory signal which shows authority that supports the point in dictum or by analogy, not one that "controls" or "dictates" the result.
Baldwin itself contains further evidence that Espinosa set forth a new rule. Baldwin considered the constitutionality of Alabama's death sentencing scheme, in which the jury was required to "fix the punishment at death" if it found the defendant guilty of an aggravated offense, whereupon the trial court would conduct a sentencing hearing at which it would determine a sentence of death or of life imprisonment. 472 U.S., at 376. The defendant contended that because the jury's mandatory sentence would have been unconstitutional standing alone, see Woodson v. North Carolina, 428 U.S. 280, 288-305 (1976) (plurality opinion), it was impermissible for the trial court to consider that verdict in determining its own sentence. We did not reach that contention because we concluded that under Alabama law the jury's verdict formed no part of the trial judge's sentencing calculus. Id., at 382. We noted, however, on the page of the opinion that Espinosa cited, that the defendant's "argument conceivably might have merit if the judge actually were required to consider the jury's `sentence' as a recommendation as to the sentence the jury believed would be appropriate, cf. Proffitt v. Flor- *530 ida, 428 U.S. 242 (1976), and if the judge were obligated to accord some deference to it." Baldwin, 472 U. S., at 382 (emphasis added); see also id., at 386, n. 8 ("express[ing] no view" on the same point). This highly tentative expression, far from showing that Baldwin "dictate[s]" the result in Espinosa, see Sawyer v. Smith, 497 U. S., at 235, suggests just the opposite. Indeed, in Baldwin the Chief Justice, who believed that Alabama's scheme did contemplate that the trial judge would consider the jury's "sentence," nonetheless held the scheme constitutional. 472 U.S., at 392 (opinion concurring in judgment).
The Supreme Court decisions relied upon most heavily by petitioner are Godfrey v. Georgia, 446 U.S. 420 (1980); Maynard v. Cartwright, 486 U.S. 356 (1988); and Clemons v. Mississippi, 494 U.S. 738 (1990). In Godfrey, we held that Georgia's "outrageously or wantonly vile, horrible and inhuman" aggravator was impermissibly vague, reasoning that there was nothing in the words "outrageously or wantonly vile, horrible and inhuman" "that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence," and concluded that these terms alone "gave the jury no guidance." 446 U.S., at 428-429 (plurality opinion). Similarly, in Maynard v. Cartwright, applied retroactively to February 1985 in Stringer v. Black, 503 U.S. 222 (1992), we held that Oklahoma's HAC aggravator, which is identically worded to Florida's HAC aggravator, was impermissibly vague because the statute gave no more guidance than the vague aggravator at issue in Godfrey and the sentencing jury was not given a limiting instruction. 486 U.S., at 363-364.
Although Godfrey and Maynard support the proposition that vague aggravators must be sufficiently narrowed to avoid arbitrary imposition of the death penalty, these cases, and others, demonstrate that the failure to instruct the sentencing jury properly with respect to the aggravator does not automatically render a defendant's sentence unconstitutional. We have repeatedly indicated that a sentencing *531 jury's consideration of a vague aggravator can be cured by appellate review. Thus, in Godfrey itself, we were less concerned about the failure to instruct the jury properly than we were about the Georgia Supreme Court's failure to narrow the facially vague aggravator on appeal. Had the Georgia Supreme Court applied a narrowing construction of the aggravator, we would have rejected the Eighth Amendment challenge to Godfrey's death sentence, notwithstanding the failure to instruct the jury on that narrowing construction. Godfrey, supra, at 431-432. Likewise in Maynard, we stressed that the vague HAC aggravator had not been sufficiently limited on appeal by the Oklahoma Court of Criminal Appeals "to cure the unfettered discretion of the jury." 486 U.S., at 364.
We reached a similar conclusion in Clemons v. Mississippi, applied retroactively to February 1985 in Stringer. Clemons considered the question whether the sentencer's weighing of a vague HAC aggravator rendered that sentence unconstitutional in a "weighing" State. The sentencing jury in Clemons, as in Maynard, was given a HAC instruction that was unconstitutionally vague. We held that "the Federal Constitution does not prevent a state appellate court from upholding a death sentence that is based in part on an invalid or improperly defined aggravating circumstance either by reweighing of the aggravating and mitigating evidence or by harmless-error review." Clemons, supra, at 741, 745; see also Stringer, supra, at 230.
The principles of the above-described cases do not dictate the result we ultimately reached in Espinosa. Florida, unlike Oklahoma, see Maynard, supra, at 360, had given its facially vague HAC aggravator a limiting construction sufficient to satisfy the Constitution. See Proffitt v. Florida, 428 U. S., at 255-256 (joint opinion of Stewart, Powell, and Stevens, JJ.); id., at 260 (White, J., concurring in judgment). Thus, unlike the sentencing juries in Clemons, Maynard, and Godfrey, who were not instructed with a properly limited *532 aggravator, the sentencing trial judge in Espinosa did find the HAC aggravator under a properly limited construction. See Espinosa, 505 U. S., at 1082, citing Walton v. Arizona, 497 U.S. 639, 653 (1990).[4] A close examination of the Florida death penalty scheme persuades us that a reasonable jurist considering Lambrix's sentence in 1986 could have reached a conclusion different from the one Espinosa announced in 1992. There were at least three different, but somewhat related, approaches that would have suggested a different outcome:
(1) The mere cabining of the trial court's discretion would avoid arbitrary imposition of the death penalty, and thus avoid unconstitutionality. In Proffitt v. Florida, supra, we upheld the Florida death penalty scheme against the contention that it resulted in arbitrary imposition of the death penalty, see Gregg v. Georgia, 428 U.S. 153, 188 (1976), because "trial judges are given specific and detailed guidance to assist them in deciding whether to impose a death penalty or imprisonment for life" and because the Florida Supreme *533 Court reviewed sentences for consistency. Proffitt, 428 U. S., at 253 (joint opinion of Stewart, Powell, and Stevens, JJ.); id., at 260-261 (opinion of White, J., joined by the Chief Justice and Rehnquist, J.). (In Proffitt itself, incidentally, the jury had not been instructed on an appropriately narrowed HAC aggravator, see Proffitt v. Wainwright, 685 F.2d 1227, 1264, n. 57 (CA11 1982), cert. denied, 464 U.S. 1002 (1983).) From what was said in Proffitt it would, as the en banc Eleventh Circuit noted, "sensibly follow that the judge's proper review of the sentence cures any risk of arbitrariness occasioned by the jury's consideration of an unconstitutionally vague aggravating circumstance." Glock v. Singletary, 65 F.3d 878, 886 (1995), cert. denied, 519 U.S. 888 (1996). It could have been argued, of course, as Justice Stevens contends, see post, at 543 (dissenting opinion), that prior constitutional error by a sentencing-determining jury would make a difference, but both the conclusion and the premise of that argument were debatable: not only whether it would make a difference, but even (as the succeeding point demonstrates) whether there was any constitutional error by a sentencingdetermining jury.
(2) There was no error for the trial judge to cure, since under Florida law the trial court, not the jury, was the sentencer. In Espinosa we concluded, in effect, that the jury was at least in part a cosentencer along with the trial court. That determination can fairly be traced to our opinion in Sochor v. Florida, 504 U.S. 527 (1992), decided just three weeks earlier, where we explained that under Florida law the trial court "is at least a constituent part of `the sentencer,' " implying that the jury was that as well. Id., at 535-536. That characterization is in considerable tension with our pre-1986 view. In Proffitt, for example, after considering Tedder v. State, 322 So. 2d 908 (Fla. 1975), on which Espinosa primarily relied, the Court determined that the trial court was the sentencer. E. g., 428 U. S., at 249 (joint opinion of Stewart, Powell, and Stevens, JJ.) ("[T]he actual *534 sentence is determined by the trial judge " (emphasis added)); id., at 251 (the trial court is "[t]he sentencing authority in Florida"); id., at 252 ("[T]he sentence is determined by the judge rather than by the jury"); id., at 260 (White, J., concurring in judgment). We even distinguished the Florida scheme from the Georgia scheme on the ground that "in Florida the sentence is determined by the trial judge rather than by the jury." Id., at 252 (joint opinion) (emphasis added). Some eight years later, just two years before petitioner's conviction became final, we continued to describe the judge as the sentencer. See Spaziano v. Florida, 468 U.S. 447 (1984); see also Barclay v. Florida, 463 U.S. 939, 952-954 (1983) (plurality opinion); id., at 962 (Stevens, J., concurring in judgment). (Although he now believes the jury is a cosentencer, at the time Lambrix's conviction became final Justice Stevens had explained that "the sentencing authority [is] the jury in Georgia, the judge in Florida." Ibid. ) It would not have been unreasonable to rely on what we had said in Proffitt, Spaziano, and Barclay that the trial court was the sentencerand to conclude that where the sentencer considered properly narrowed aggravators there was simply no error under Godfrey or Maynard. The Florida Supreme Court and the Eleventh Circuit held precisely that in 1989, see Smalley v. State, 546 So. 2d 720, 722; Bertolotti v. Dugger, 883 F.2d 1503, 1526-1527, cert. denied, 497 U.S. 1032 (1990); and in 1985 the Eleventh Circuit foresaw the possibility of such a holding: "[Spaziano `s] reasoning calls into question whether any given error in such a merely `advisory' proceeding should be considered to be of constitutional magnitude." Proffitt v. Wainwright, 756 F.2d 1500, 1502.
(3) The trial court's weighing of properly narrowed aggravators and mitigators was sufficiently independent of the jury to cure any error in the jury's consideration of a vague aggravator. Although the Florida Supreme Court had interpreted its statutewhich provided that the judge was the sentencer, Fla. Stat. § 921.141(3) (Supp. 1992), and that the *535 jury rendered merely an "advisory sentence," § 921.141(2)as requiring the trial judge to give "great weight" to a jury's advisory recommendation, Tedder v. State, supra, that court nonetheless emphasized that the trial court must "independently weigh the evidence in aggravation and mitigation," and that "[u]nder no combination of circumstances can th[e] [jury's] recommendation usurp the judge's role by limiting his discretion." Eutzy v. State, 458 So. 2d 755, 759 (Fla. 1984), cert. denied, 471 U.S. 1045 (1985). In one case, the Florida Supreme Court vacated a sentence because the trial court had given "undue weight to the jury's recommendation of death and did not make an independent judgment of whether or not the death penalty should be imposed." Ross v. State, 386 So. 2d 1191, 1197 (1980) (emphasis added). In Spaziano v. Florida, supra, we acknowledged that the Florida trial court conducts "its own weighing of the aggravating and mitigating circumstances," id., at 451, and that "[r]egardless of the jury's recommendation, the trial judge is required to conduct an independent review of the evidence and to make his own findings regarding aggravating and mitigating circumstances," id., at 466 (emphasis added); see also Proffitt, 428 U. S., at 251.[5] Given these precedents, it was reasonable *536 to think that the trial court's review would at least constitute the sort of "reweighing" that would satisfy Clemons v. Mississippi, 494 U.S. 738 (1990), see also Stringer, 503 U. S., at 237. In fact, given the view of some Members of this Court that appellate reweighing was inconsistent with the Eighth Amendment, see, e. g., Cabana v. Bullock, 474 U.S. 376, 400-401, 404 (1986) (Blackmun, J., dissenting, joined by Brennan and Marshall, JJ.); Clemons, supra, at 769-772 (Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ., concurring in part and dissenting in part), it would have been reasonable to think that trial-court reweighing was preferable. As one Court of Appeals was prompted to note, "Clemons `s holding, which arguably points in the opposite direction from Espinosa, indicates that even in 1990 Espinosa `s result would not have been dictated by precedent." Glock v. Singletary, 65 F. 3d, at 887 (en banc).
That Espinosa announced a new rule is strongly confirmed by our decision in Walton v. Arizona, 497 U.S. 639 (1990). Although decided after petitioner's conviction became final, Walton is a particularly good proxy for what a reasonable jurist would have thought in 1986, given that the only relevant cases decided by this Court in the interim were Maynard and Clemons, the holdings of both of which, we later *537 held, were compelled by the law in 1985, see Stringer, supra. In Walton, we rejected a claim that Arizona's HAC aggravator failed sufficiently to channel the sentencer's discretion. Summarizing Godfrey and Maynard, we explained that "in neither case did the state appellate court, in reviewing the propriety of the death sentence, purport to affirm the death sentence by applying a limiting definition," and this, we said, "w[as] crucial to the conclusion we reached in Maynard. " Walton, supra, at 653. This reasoning suggests that even following Maynard, a weighing-state death sentence would satisfy the Eighth Amendment so long as the vague aggravator was narrowed at some point in the process. Additionally, in the course of our opinion, we characterized Clemons as follows:
"[E]ven if a trial judge fails to apply the narrowing construction or applies an improper construction, the Constitution does not necessarily require that a state appellate court vacate a death sentence based on that factor. Rather, as we held in Clemons v. Mississippi, 494 U.S. 738 (1990), a state appellate court may itself determine whether the evidence supports the existence of the aggravating circumstance as properly defined or the court may eliminate consideration of the factor altogether and determine whether any remaining aggravating circumstances are sufficient to warrant the death penalty." Walton, supra, at 653-654 (emphasis added).
Our use of the disjunctive suggests that as late as 1990, if a Florida trial court determined that the defendant's conduct fell within the narrowed HAC aggravator, the sentence would satisfy the Eighth Amendment irrespective of whether the trial court reweighed the aggravating and mitigating factors.[6] The holdings in Stringer, Maynard, Clem- *538 ons, and Godfrey cannot be thought to suggest otherwise, because there was no indication in those cases that the state courts had found the facts of the crimes to fall within appropriately narrowed definitions of the aggravators. Before Espinosa, we had never invalidated a death sentence where a court found the challenged aggravator to be within the appellate court's narrowed definition of a facially vague aggravator.
Most of Justice Stevens's dissent is devoted to making a forceful case that Espinosa was a reasonable interpretation of prior lawperhaps even the most reasonable one. But the Teague inquirywhich is applied to Supreme Court decisions that are, one must hope, usually the most reasonable interpretation of prior lawrequires more than that. It asks whether Espinosa was dictated by precedenti. e., whether no other interpretation was reasonable. We think it plain from the above that a jurist considering all the relevant material (and not, like Justice Stevens's dissent, considering only the material that favors the Espinosa result) could reasonably have reached a conclusion contrary to our holding in that case. Indeed, both before and after Lambrix's conviction became final, every court decision we are aware of did so. See, e. g., Smalley v. State, 546 So. 2d, at 722; Proffitt v. Wainwright, 756 F. 2d, at 1502; Bertolotti v. Dugger, 883 F. 2d, at 1527; Sanchez-Velasco v. State, 570 So. 2d 908, 916 (Fla. 1990), cert. denied, 500 U.S. 929 (1991).
It has been suggested that Espinosa was not a new rule because our decision was handed down as a per curiam without oral argument. See, e. g., Glock v. Singletary, 65 F. 3d, at 896, n. 11 (en banc) (Tjoflat, C. J., dissenting). Whatever *539 inference of established law a summary, per curiam disposition might normally carry is precluded by the peculiar circumstances surrounding the summary per curiam in Espinosa. Just three weeks prior to our issuance of Espinosa, we had decided a case that raised the identical issue, and in which that issue had been fully briefed and argued; we found ourselves without jurisdiction to decide the point, however, because the defendant had failed to preserve his objection in the state courts. See Sochor v. Florida, 504 U. S., at 533 534. It is obvious on the face of the matter that Espinosa was only in the most technical sense an "unargued" case: We used that case, which was pending on petition for certiorari when Sochor was decided, as the vehicle for resolving a fully argued point without consuming additional resources.
V
Since we have determined that Espinosa announced a new rule under Teague, there remains only the task of determining whether that new rule nonetheless falls within one of the two exceptions to our nonretroactivity doctrine. "The first exception permits the retroactive application of a new rule if the rule places a class of private conduct beyond the power of the State to proscribe, see Teague, 489 U. S., at 311, or addresses a `substantive categorical guarante[e] accorded by the Constitution,' such as a rule `prohibiting a certain category of punishment for a class of defendants because of their status or offense.' " Saffle v. Parks, 494 U. S., at 494 (quoting Penry v. Lynaugh, 492 U. S., at 329, 330). Plainly, this exception has no application to this case. Espinosa "neither decriminalize[s] a class of conduct nor prohibit[s] the imposition of capital punishment on a particular class of persons." 494 U.S., at 495.
The second exception is for "`watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Ibid. (quoting Teague, *540 supra, at 311). Lambrix does not contend that this exception applies to Espinosa errors, and our opinion in Sawyer v. Smith, 497 U. S., at 241-244, makes it quite clear that that is so.
* * *
For the reasons stated, the judgment of the Court of Appeals for the Eleventh Circuit is
Affirmed. | We granted certiorari in this case to consider whether a prisoner whose conviction became final before our decision in is foreclosed from relying on that decision in a federal habeas corpus proceeding because it announced a "new rule" as defined in I On February 5, 1983, Cary Michael Lambrix and his girlfriend, Frances met Clarence Moore and Aleisha Bryant at a local tavern. The two couples returned to Lambrix's trailer for dinner, where Lambrix killed Moore and Bryant in brutal fashion. Lambrix was convicted on two counts of first-degree murder. In the sentencing phase of trial, the jury rendered an advisory verdict recommending *521 that the trial court sentence Lambrix to death on both counts. The trial court, after finding five aggravating circumstances in connection with the murder of Moore, four aggravating circumstances in connection with the murder of Bryant, and no mitigating circumstances as to either murder, sentenced Lambrix to death on both counts. Lambrix's conviction and sentence were upheld on direct appeal by the Supreme Court. After the courts denied his repeated efforts to obtain collateral relief, ; ; Lambrix filed a petition for a writ of habeas corpus pursuant to 28 U.S. C. 2254 in the United s District Court for the Southern District of ; that court rejected all of his claims. While Lambrix's appeal was pending before the Court of Appeals for the Eleventh Circuit, this Court decided which held that if the sentencing judge in a "weighing" (i. e., a that requires specified aggravating circumstances to be weighed against any mitigating circumstances at the sentencing phase of a capital trial) is required to give deference to a jury's advisory sentencing recommendation, then neither the jury nor the judge is constitutionally permitted to weigh invalid aggravating circumstances. Since is such a and since one of Lambrix's claims was that his sentencing jury was improperly instructed on the "especially heinous, atrocious, or cruel" (HAC) aggravator, had obvious relevance to his habeas petition. Rather than address this issue in the first instance, however, the Eleventh Circuit held its proceedings in abeyance to permit Lambrix to present his claim to the state courts. The Supreme Court rejected Lambrix's claim without considering its merits on the ground that the claim was procedurally barred. That court explained that although Lambrix had properly preserved his objection at trial by requesting a limiting instruction on the HAC aggravator, he had failed to raise the issue on direct The Supreme Court also rejected Lambrix's claim that the procedural bar should be excused because his appellate counsel was ineffective in failing to raise the forfeited issue, explaining that this claim was itself procedurally barred and was, in any event, meritless. After the Supreme Court entered judgment against Lambrix, the Eleventh Circuit adjudicated his habeas petition. Without even acknowledging the procedural barwhich was expressly raised and argued by the the Court of Appeals proceeded to address the claim, and determined that announced a new rule which cannot be applied retroactively on federal habeas under We granted certiorari. II Before turning to the question presented in this case, we pause to consider the 's contention that Lambrix's claim is procedurally barred because he failed to contend that the jury was instructed with a vague HAC aggravator on his direct appeal to the Supreme Court. According to the the Supreme Court "has consistently required that an issue must have been objected to at trial and pursued on direct appeal in order to be reviewed in postconviction proceedings." Brief for Respondent 30, citing and (Fla.), cert. denied, In we reaffirmed that this Court "will not review a question of federal law decided by a state court if the decision of that court *523 rests on a state law ground that is independent of the federal question and adequate to support the judgment." See also We in fact lack jurisdiction to review such independently supported judgments on direct appeal: Since the state-law determination is sufficient to sustain the decree, any opinion of this Court on the federal question would be purely advisory. ; see also Sochor v. The "independent and adequate state ground" doctrine is not technically jurisdictional when a federal court considers a state prisoner's petition for habeas corpus pursuant to 28 U.S. C. 2254, since the federal court is not formally reviewing a judgment, but is determining whether the prisoner is "in custody in violation of the Constitution or laws or treaties of the United s." We have nonetheless held that the doctrine applies to bar consideration on federal habeas of federal claims that have been defaulted under state law. ; see also discussing and Ex parte Spencer, ; at Application of the "independent and adequate state ground" doctrine to federal habeas review is based upon equitable considerations of federalism and comity. It "ensures that the s' interest in correcting their own mistakes is respected in all federal habeas cases." "[A] habeas petitioner who has failed to meet the 's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance." If the "independent and adequate state ground" doctrine were not applied, a federal district court or court of appeals would be able to review claims that this Court would have been unable to consider on direct review. See *524 We have never had occasion to consider whether a federal court should resolve a 's contention that a petitioner's claim is procedurally barred before considering whether his claim is barred. Our opinions, howevermost particularly, certainly suggest that the proceduralbar issue should ordinarily be considered first. It was speculated at oral argument that the Court of Appeals may have resolved the issue without first considering procedural bar because our opinions have stated that the retroactivity decision is to be made as a "threshold matter." E. ; That simply means, however, that the issue should be addressed "before considering the merits of [a] claim." 510 U.S., at It does not mean that the inquiry is antecedent to consideration of the general prerequisites for federal habeas corpus which are unrelated to the merits of the particular claim such as the requirement that the petitioner be "in custody," see 28 U.S. C. 2254(a), or that the state-court judgment not be based on an independent and adequate state ground. Constitutional issues are generally to be avoided, and as even a cursory review of this Court's new-rule cases reveals (including our discussion in Part IV, infra ), the inquiry requires a detailed analysis of federal constitutional law. See, e. ; ; ; We are somewhat puzzled that the Eleventh Circuit, after having held proceedings in abeyance while petitioner brought his claim in state court, did not so much as mention the Supreme Court's determination that Lambrix's claim was procedurally barred. The of raised that point before both the District Court and the Court of Appeals, going so far as to reiterate it in a postjudgment *525 Motion for Clarification and/or Modification of Opinion before the Court of Appeals, reprinted at App. 176. A 's procedural rules are of vital importance to the orderly administration of its criminal courts; when a federal court permits them to be readily evaded, it undermines the criminal justice system. We do not mean to suggest that the procedural-bar issue must invariably be resolved first; only that it ordinarily should be. Judicial economy might counsel giving the question priority, for example, if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law. Cf. 28 U.S. C. 2254(b)(2) (permitting a federal court to deny a habeas petition on the merits notwithstanding the applicant's failure to exhaust state remedies). Despite our puzzlement at the Court of Appeals' failure to resolve this case on the basis of procedural bar, we hesitate to resolve it on that basis ourselves. Lambrix asserts several reasons why his claim is not procedurally barred, which seem to us insubstantial but may not be so; as we have repeatedly recognized, the courts of appeals and district courts are more familiar than we with the procedural practices of the s in which they regularly sit, see, e. ; County Court of Ulster Rather than prolong this litigation by a remand, we proceed to decide the case on the grounds that the Court of Appeals used. III employs a three-stage sentencing procedure. First, the jury weighs statutorily specified aggravating circumstances against any mitigating circumstances, and renders an "advisory sentence" of either life imprisonment or death. Fla. Stat. 921.141(2) Second, the trial court weighs the aggravating and mitigating circumstances, and enters a sentence of life imprisonment or death; *526 if the latter, its findings must be set forth in writin 921.141(3). The jury's advisory sentence is entitled to "great weight" in the trial court's determination, but the court has an independent obligation to determine the appropriate punishment, Third, the Supreme Court automatically reviews all cases in which the defendant is sentenced to death. 921.141(4). Lambrix's jury, which was instructed on five aggravating circumstances, recommended that he be sentenced to death for each murder. The trial court found five aggravating circumstances as to Moore's murder and four as to Bryant's, including that each murder was "especially heinous and atrocious"; it found no mitigating circumstances as to either murder; it concluded that the aggravating circumstances outweighed the mitigating, and sentenced Lambrix to death on each count. App. 20-21. Although Lambrix failed to raise any claims concerning the sentencing procedure on direct appeal, the Supreme Court agreed with the trial court's findings as to the aggravating circumstances. Lambrix contends that the jury's consideration of the HAC aggravator violated the Eighth Amendment because the jury instructions concerning this circumstance failed to provide sufficient guidance to limit the jury's discretion. Like the Eleventh Circuit, see 72 F.3d, at we assume, arguendo, that this was so. Lambrix further contends (and this is at the heart of the present case) that the trial court's independent weighing did not cure this error. Prior to our opinion in the had contended that Lambrix was not entitled to relief because the sentencing judge properly found and weighed a narrowed HAC aggravator. In however, we established the principle that if a "weighing" requires the sentencing trial judge to give deference to a jury's advisory recommendation, neither the judge nor the jury is constitutionally permitted *527 to weigh invalid aggravating circumstances. Lambrix seeks the benefit of that principle; the contends that it constitutes a new rule under and thus cannot be relied on in a federal habeas corpus proceedin[1] In we held that, in general, "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." -311. To apply a federal court engages in a three-step process. First, it determines the date upon which the defendant's conviction became final. See Second, it must "`[s]urve[y] the legal landscape as it then existed,' ], and `determine whether a state court considering [the defendant's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution,'" Finally, if the court determines that the habeas petitioner seeks the benefit of a new rule, the court must consider whether the relief sought falls within one of the two narrow exceptions to nonretroactivity. See IV Lambrix's conviction became final on November 24, when his time for filing a petition for certiorari expired. Thus, our first and principal task is to survey the legal landscape as of that date, to determine whether the rule later announced in was dictated by then-existing precedentwhether, that is, the unlawfulness of Lambrix's *528 conviction was apparent to all reasonable jurists. See, e. ; ; In we determined that the capital jury is, in an important respect, a cosentencer with the judge. As we explained: " has essentially split the weighing process in two. Initially, the jury weighs aggravating and mitigating circumstances, and the result of that weighing process is then in turn weighed within the trial court's process of weighing aggravating and mitigating circumstances." We then concluded that the jury's consideration of a vague aggravator tainted the trial court's sentence because the trial court gave deference to the jury verdict (and thus indirectly weighed the vague aggravator) in the course of weighing the aggravating and mitigating circumstances. We reasoned that this indirect weighing created the same risk of arbitrariness as the direct weighing of an invalid aggravating factor. [2] In our view, was not dictated by precedent, but announced a new rule which cannot be used as the basis for federal habeas corpus relief. It is significant that itself did not purport to rely upon any controlling precedent.[3]*529 The opinion cited only a single case, in support of its central conclusion that indirect weighing of an invalid aggravator "creates the same potential for arbitrariness" as direct weighing of an invalid aggravator. And it introduced that lone citation with a "cf."an introductory signal which shows authority that supports the point in dictum or by analogy, not one that "controls" or "dictates" the result. itself contains further evidence that set forth a new rule. considered the constitutionality of Alabama's death sentencing scheme, in which the jury was required to "fix the punishment at death" if it found the defendant guilty of an aggravated offense, whereupon the trial court would conduct a sentencing hearing at which it would determine a sentence of death or of life imprisonment. The defendant contended that because the jury's mandatory sentence would have been unconstitutional standing alone, see it was impermissible for the trial court to consider that verdict in determining its own sentence. We did not reach that contention because we concluded that under Alabama law the jury's verdict formed no part of the trial judge's sentencing calculus. at We noted, however, on the page of the opinion that cited, that the defendant's "argument conceivably might have merit if the judge actually were required to consider the jury's `sentence' as a recommendation as to the sentence the jury believed would be appropriate, cf. and if the judge were obligated to accord some deference to it." 472 U. S., at ; see also This highly tentative expression, far from showing that "dictate[s]" the result in see suggests just the opposite. Indeed, in the Chief Justice, who believed that Alabama's scheme did contemplate that the trial judge would consider the jury's "sentence," nonetheless held the scheme The Supreme Court decisions relied upon most heavily by petitioner are ; ; and In Godfrey, we held that Georgia's "outrageously or wantonly vile, horrible and inhuman" aggravator was impermissibly vague, reasoning that there was nothing in the words "outrageously or wantonly vile, horrible and inhuman" "that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence," and concluded that these terms alone "gave the jury no guidance." -429 Similarly, in applied retroactively to February 1985 in we held that Oklahoma's HAC aggravator, which is identically worded to 's HAC aggravator, was impermissibly vague because the statute gave no more guidance than the vague aggravator at issue in Godfrey and the sentencing jury was not given a limiting -364. Although Godfrey and support the proposition that vague aggravators must be sufficiently narrowed to avoid arbitrary imposition of the death penalty, these cases, and others, demonstrate that the failure to instruct the sentencing jury properly with respect to the aggravator does not automatically render a defendant's sentence un We have repeatedly indicated that a sentencing *531 jury's consideration of a vague aggravator can be cured by appellate review. Thus, in Godfrey itself, we were less concerned about the failure to instruct the jury properly than we were about the Georgia Supreme Court's failure to narrow the facially vague aggravator on Had the Georgia Supreme Court applied a narrowing construction of the aggravator, we would have rejected the Eighth Amendment challenge to Godfrey's death sentence, notwithstanding the failure to instruct the jury on that narrowing construction. Godfrey, Likewise in we stressed that the vague HAC aggravator had not been sufficiently limited on appeal by the Oklahoma Court of Criminal Appeals "to cure the unfettered discretion of the jury." We reached a similar conclusion in applied retroactively to February 1985 in considered the question whether the sentencer's weighing of a vague HAC aggravator rendered that sentence unconstitutional in a "weighing" The sentencing jury in as in was given a HAC instruction that was unconstitutionally vague. We held that "the Federal Constitution does not prevent a state appellate court from upholding a death sentence that is based in part on an invalid or improperly defined aggravating circumstance either by reweighing of the aggravating and mitigating evidence or by harmless-error review." ; see also The principles of the above-described cases do not dictate the result we ultimately reached in unlike Oklahoma, see had given its facially vague HAC aggravator a limiting construction sufficient to satisfy the Constitution. See v. -256 ; Thus, unlike the sentencing juries in and Godfrey, who were not instructed with a properly limited *532 aggravator, the sentencing trial judge in did find the HAC aggravator under a properly limited construction. See citing[4] A close examination of the death penalty scheme persuades us that a reasonable jurist considering Lambrix's sentence in could have reached a conclusion different from the one announced in 1992. There were at least three different, but somewhat related, approaches that would have suggested a different outcome: (1) The mere cabining of the trial court's discretion would avoid arbitrary imposition of the death penalty, and thus avoid unconstitutionality. In v. we upheld the death penalty scheme against the contention that it resulted in arbitrary imposition of the death penalty, see because "trial judges are given specific and detailed guidance to assist them in deciding whether to impose a death penalty or imprisonment for life" and because the Supreme *533 Court reviewed sentences for consistency. ; -261 cert. denied,) From what was said in it would, as the en banc Eleventh Circuit noted, "sensibly follow that the judge's proper review of the sentence cures any risk of arbitrariness occasioned by the jury's consideration of an unconstitutionally vague aggravating circumstance." cert. denied, It could have been argued, of course, as Justice Stevens contends, see post, at 543 (dissenting opinion), that prior constitutional error by a sentencing-determining jury would make a difference, but both the conclusion and the premise of that argument were debatable: not only whether it would make a difference, but even (as the succeeding point demonstrates) whether there was any constitutional error by a sentencingdetermining jury. (2) There was no error for the trial judge to cure, since under law the trial court, not the jury, was the sentencer. In we concluded, in effect, that the jury was at least in part a cosentencer along with the trial court. That determination can fairly be traced to our opinion in Sochor v. decided just three weeks earlier, where we explained that under law the trial court "is at least a constituent part of `the sentencer,' " implying that the jury was that as well. That characterization is in considerable tension with our pre- view. In for example, after considering on which primarily relied, the Court determined that the trial court was the sentencer. E. ("[T]he actual *534 sentence is determined by the trial judge " ); (the trial court is "[t]he sentencing authority in "); ; We even distinguished the scheme from the Georgia scheme on the ground that "in the sentence is determined by the trial judge rather than by the jury." Some eight years later, just two years before petitioner's conviction became final, we continued to describe the judge as the sentencer. See Spaziano v. U.S. 447 ; see also Barclay v. ; (Although he now believes the jury is a cosentencer, at the time Lambrix's conviction became final Justice Stevens had explained that "the sentencing authority [is] the jury in Georgia, the judge in" ) It would not have been unreasonable to rely on what we had said in Spaziano, and Barclay that the trial court was the sentencerand to conclude that where the sentencer considered properly narrowed aggravators there was simply no error under Godfrey or The Supreme Court and the Eleventh Circuit held precisely that in 1989, see Smalley v. ; 883 F.2d ; and in 1985 the Eleventh Circuit foresaw the possibility of such a holding: "[Spaziano `s] reasoning calls into question whether any given error in such a merely `advisory' proceeding should be considered to be of constitutional magnitude." v. Wainwright, (3) The trial court's weighing of properly narrowed aggravators and mitigators was sufficiently independent of the jury to cure any error in the jury's consideration of a vague aggravator. Although the Supreme Court had interpreted its statutewhich provided that the judge was the sentencer, Fla. Stat. 921.141(3) and that the *535 jury rendered merely an "advisory sentence," 921.141(2)as requiring the trial judge to give "great weight" to a jury's advisory recommendation, that court nonetheless emphasized that the trial court must "independently weigh the evidence in aggravation and mitigation," and that "[u]nder no combination of circumstances can th[e] [jury's] recommendation usurp the judge's role by limiting his discretion." Eutzy v. cert. denied, In one case, the Supreme Court vacated a sentence because the trial court had given "undue weight to the jury's recommendation of death and did not make an independent judgment of whether or not the death penalty should be imposed." In Spaziano v. we acknowledged that the trial court conducts "its own weighing of the aggravating and mitigating circumstances," and that "[r]egardless of the jury's recommendation, the trial judge is required to conduct an independent review of the evidence and to make his own findings regarding aggravating and mitigating circumstances," ; see also 428 U. S.,[5] Given these precedents, it was reasonable *536 to think that the trial court's review would at least constitute the sort of "reweighing" that would satisfy see also In fact, given the view of some Members of this Court that appellate reweighing was inconsistent with the Eighth Amendment, see, e. ; it would have been reasonable to think that trial-court reweighing was preferable. As one Court of Appeals was prompted to note, " `s holding, which arguably points in the opposite direction from indicates that even in `s result would not have been dictated by precedent." That announced a new rule is strongly confirmed by our decision in Although decided after petitioner's conviction became final, is a particularly good proxy for what a reasonable jurist would have thought in given that the only relevant cases decided by this Court in the interim were and the holdings of both of which, we later *537 held, were compelled by the law in 1985, see In we rejected a claim that Arizona's HAC aggravator failed sufficiently to channel the sentencer's discretion. Summarizing Godfrey and we explained that "in neither case did the state appellate court, in reviewing the propriety of the death sentence, purport to affirm the death sentence by applying a limiting definition," and this, we said, "w[as] crucial to the conclusion we reached in " at This reasoning suggests that even following a weighing-state death sentence would satisfy the Eighth Amendment so long as the vague aggravator was narrowed at some point in the process. Additionally, in the course of our opinion, we characterized as follows: "[E]ven if a trial judge fails to apply the narrowing construction or applies an improper construction, the Constitution does not necessarily require that a state appellate court vacate a death sentence based on that factor. Rather, as we held in a state appellate court may itself determine whether the evidence supports the existence of the aggravating circumstance as properly defined or the court may eliminate consideration of the factor altogether and determine whether any remaining aggravating circumstances are sufficient to warrant the death penalty." at -654 Our use of the disjunctive suggests that as late as if a trial court determined that the defendant's conduct fell within the narrowed HAC aggravator, the sentence would satisfy the Eighth Amendment irrespective of whether the trial court reweighed the aggravating and mitigating factors.[6] The holdings in Clem- *538 ons, and Godfrey cannot be thought to suggest otherwise, because there was no indication in those cases that the state courts had found the facts of the crimes to fall within appropriately narrowed definitions of the aggravators. Before we had never invalidated a death sentence where a court found the challenged aggravator to be within the appellate court's narrowed definition of a facially vague aggravator. Most of Justice Stevens's dissent is devoted to making a forceful case that was a reasonable interpretation of prior lawperhaps even the most reasonable one. But the inquirywhich is applied to Supreme Court decisions that are, one must hope, usually the most reasonable interpretation of prior lawrequires more than that. It asks whether was dictated by precedenti. e., whether no other interpretation was reasonable. We think it plain from the above that a jurist considering all the relevant material (and not, like Justice Stevens's dissent, considering only the material that favors the result) could reasonably have reached a conclusion contrary to our holding in that case. Indeed, both before and after Lambrix's conviction became final, every court decision we are aware of did so. See, e. Smalley v. 546 So. 2d, at ; v. Wainwright, 756 F. 2d, at ; 883 F. 2d, at 1527; Sanchez-Velasco v. cert. denied, It has been suggested that was not a new rule because our decision was handed down as a per curiam without oral argument. See, e. n. 11 (Tjoflat, C. J., dissenting). Whatever *539 inference of established law a summary, per curiam disposition might normally carry is precluded by the peculiar circumstances surrounding the summary per curiam in Just three weeks prior to our issuance of we had decided a case that raised the identical issue, and in which that issue had been fully briefed and argued; we found ourselves without jurisdiction to decide the point, however, because the defendant had failed to preserve his objection in the state courts. See Sochor v. 534. It is obvious on the face of the matter that was only in the most technical sense an "unargued" case: We used that case, which was pending on petition for certiorari when Sochor was decided, as the vehicle for resolving a fully argued point without consuming additional resources. V Since we have determined that announced a new rule under there remains only the task of determining whether that new rule nonetheless falls within one of the two exceptions to our nonretroactivity doctrine. "The first exception permits the retroactive application of a new rule if the rule places a class of private conduct beyond the power of the to proscribe, see or addresses a `substantive categorical guarante[e] accorded by the Constitution,' such as a rule `prohibiting a certain category of punishment for a class of defendants because of their status or offense.' " (quoting 492 U. S., at 330). Plainly, this exception has no application to this case. "neither decriminalize[s] a class of conduct nor prohibit[s] the imposition of capital punishment on a particular class of persons." The second exception is for "`watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceedin" (quoting *540 ). Lambrix does not contend that this exception applies to errors, and our opinion in -244, makes it quite clear that that is so. * * * For the reasons stated, the judgment of the Court of Appeals for the Eleventh Circuit is Affirmed. |
Justice O'Connor | majority | false | California v. Superior Court of Cal., San Bernardino Cty. | 1987-06-09T00:00:00 | null | https://www.courtlistener.com/opinion/111916/california-v-superior-court-of-cal-san-bernardino-cty/ | https://www.courtlistener.com/api/rest/v3/clusters/111916/ | 1,987 | 1986-122 | 1 | 7 | 2 | At issue in this case are the limits imposed by federal law upon state court habeas corpus proceedings challenging an extradition warrant.
I
Richard and Judith Smolin were divorced in California in 1978. Sole custody of their two children, Jennifer and Jamie, was awarded to Judith Smolin, subject to reasonable visitation rights for Richard. Until November 1979, all the parties remained in San Bernardino County, California, and Richard apparently paid his child support and exercised his visitation rights without serious incident. In August 1979, however, Judith married James Pope, and in November, Mr. Pope's work required that the family relocate to Oregon. When the Popes moved without informing Richard, the battle over the custody of the minor children began in earnest.
It is unnecessary to recite in detail all that ensued. Richard alleged, and the California courts later found, that the Popes deliberately attempted to defeat Richard's visitation rights and to preclude him from forming a meaningful relationship with his children in the course of their succeeding relocations from Oregon to Texas to Louisiana. On February 13, 1981, the Popes obtained a decree from a Texas court granting full faith and credit to the original California order awarding sole custody to Judith. Richard was served but did not appear in the Texas proceeding. Before the Texas decree was issued, however, Richard sought and obtained in California Superior Court modification of the underlying California decree, awarding joint custody to Richard and Judith. Though properly served, the Popes did not appear in these *403 California proceedings; and, though served with the modification order, the Popes neither complied with its terms, nor notified the Texas court of its existence. On January 9, 1981, Richard instituted an action in California Superior Court to find Judith in contempt and to again modify the custody decree to give him sole custody. In February 1981, sole custody was granted to Richard by the California court, subject to reasonable visitation rights for Judith.
This order also was ignored by the Popes, apparently acting on the advice of counsel that the California courts no longer had jurisdiction over the matter. Richard did not in fact obtain physical custody for over two years. When he finally located the Popes in Louisiana, they began an adoption proceeding, later described by the California courts as "verging on the fraudulent," to sever Richard's legal tie to Jennifer and Jamie. App. 51. After securing a California warrant to obtain custody of the children on February 27, 1984, Richard and his father, Gerard Smolin, resorted to self-help. On March 9, 1984, they picked up Jennifer and Jamie as they were waiting for their school bus in Slidell, Louisiana, and brought them back to California. On April 11, 1984, the Popes submitted to the jurisdiction of the California Superior Court and instituted an action to modify the 1981 order granting Richard sole custody. 41 Cal. 3d 758, 764, n. 4, 716 P.2d 991, 994, n. 4 (1986). Those proceedings are apparently still pending before the California courts.
Meanwhile, the Popes raised the stakes by instituting a criminal action against Richard and Gerard Smolin in Louisiana. On April 30, 1984, after the Popes instituted modification proceedings in California, Judith Pope swore out an affidavit charging Richard and Gerard Smolin with kidnaping Jennifer and Jamie from her custody and asserting that they had acted "without authority to remove children from [her] custody." App. B to Pet. for Cert. 6. On the basis of this affidavit, the Assistant District Attorney for the 22d Judicial District of Louisiana, William Alford, Jr., filed an information *404 charging Richard and Gerard Smolin each with two counts of violating La. Rev. Stat. Ann. § 14:45 (West 1986), the Louisiana kidnaping statute. On June 14, 1984, the Governor of Louisiana formally notified the Governor of California that Richard and Gerard Smolin were charged with "simple kidnaping" in Louisiana and demanded that they be delivered up for trial. 41 Cal. 3d, at 763, 716 P. 2d, at 993-994.
In early August 1984, the Smolins petitioned in the California Superior Court for a writ of habeas corpus to block the anticipated extradition warrants. On August 17, 1984, the anticipated warrants issued and on August 24, 1984, the Superior Court orally granted a writ of habeas corpus after taking judicial notice of the various custody orders that had been issued. The court concluded "that the findings in the family law case adequately demonstrate that, in fact, the process initiated by Mrs. Pope in Louisiana and her declarations and affidavits were totally insufficient to establish any basis for rights of either herself personally or for the State . . . of Louisiana." App. C to Pet. for Cert. 5. California then sought a writ of mandate in the California Court of Appeal on the ground that the Superior Court had abused its discretion in blocking extradition. The Court of Appeal reluctantly issued the writ:
"Although we abhor Judy's apparent willingness to take advantage of our federal system to further this custody battle, and are sympathetic to [the Smolins'] position, we must conclude that their arguments are irrelevant to the only issue a court in the asylum state may properly address: are the documents on their face in order." App. B to Pet. for Cert. 16.
A divided California Supreme Court reversed. The majority interpreted the Superior Court's finding to be that the Smolins were not substantially charged with a crime. It found that the California custody decrees were properly considered *405 by the Superior Court, and that its conclusion that the Smolins were not substantially charged was correct. Under the full faith and credit provisions of the federal Parental Kidnaping Prevention Act of 1980, 28 U.S. C. § 1738A, the majority determined that those decrees conclusively established that Richard Smolin was the lawful custodian of the children at the time that they were taken from Louisiana to California.[*] Finally, the court found that, under Louisiana law, the lawful custodian cannot be guilty of kidnaping children in his custody. State v. Elliott, 171 La. 306, 311, 131 So. 28, 30 (1930). We granted certiorari, 479 U.S. 982 (1986), to consider whether the Extradition Clause, Art. IV, § 2, cl. 2, and the Extradition Act, 18 U.S. C. § 3182, prevent the California Supreme Court from refusing to permit extradition on these grounds.
II
The Federal Constitution places certain limits on the sovereign powers of the States, limits that are an essential part of the Framers' conception of national identity and Union. One such limit is found in Art. IV, § 2, cl. 2, the Extradition Clause:
"A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority *406 of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime."
The obvious objective of the Extradition Clause is that no State should become a safe haven for the fugitives from a sister State's criminal justice system. As this Court noted in its first opportunity to construe the Extradition Clause:
"[T]he statesmen who framed the Constitution were fully sensible, that from the complex character of the Government, it must fail unless the States mutually supported each other and the General Government; and that nothing would be more likely to disturb its peace, and end in discord, than permitting an offender against the laws of a State, by passing over a mathematical line which divides it from another, to defy its process, and stand ready, under the protection of the State, to repeat the offense as soon as another opportunity offered." Kentucky v. Dennison, 24 How. 66, 100 (1861).
The Extradition Clause, however, does not specifically establish a procedure by which interstate extradition is to take place, and, accordingly, has never been considered to be self-executing. See, e. g., Hyatt v. People ex rel. Corkran, 188 U.S. 691, 708-709 (1903); Kentucky v. Dennison, supra, at 104. Early in our history, the lack of an established procedure led to a bitter dispute between the States of Virginia and Pennsylvania. J. Scott, Law of Interstate Rendition 5-7 (1917). In 1791, Pennsylvania demanded the extradition of three men charged with kidnaping a free black man and selling him into slavery. Virginia refused to comply with Pennsylvania's demand. The controversy was finally submitted to President Washington who, relying upon the advice of Attorney General Randolph, 9 National State Papers of the United States 1789-1817, pt. II, pp. 144-145 (E. Carzo ed. 1985), personally appeared before the Congress to obtain the enactment of a law to regulate the extradition process. Congress *407 responded by enacting the Extradition Act of 1793, which provides in its current form:
"Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear." 18 U.S. C. § 3182.
This Court has held the Extradition Act of 1793 to be a proper exercise of Congress' powers under the Extradition Clause and Art. IV, § 1, to "prescribe the manner in which acts, records and proceedings shall be proved, and the effect thereof." Kentucky v. Dennison, supra, at 105; Prigg v. Pennsylvania, 16 Pet. 539, 618-622 (1842). By the express terms of federal law, therefore, the asylum State is bound to deliver up to the demanding State's agent a fugitive against whom a properly certified indictment or affidavit charging a crime is lodged.
The language, history, and subsequent construction of the Extradition Act make clear that Congress intended extradition to be a summary procedure. As we have repeatedly held, extradition proceedings are "to be kept within narrow bounds"; they are "emphatically" not the appropriate time or place for entertaining defenses or determining the guilt or innocence of the charged party. Biddinger v. Commissioner *408 of Police, 245 U.S. 128, 135 (1917); see also, e. g., Michigan v. Doran, 439 U.S. 282, 288 (1978); Drew v. Thaw, 235 U.S. 432, 440 (1914); Pierce v. Creecy, 210 U.S. 387, 405 (1908); In re Strauss, 197 U.S. 324, 332-333 (1905). Those inquiries are left to the professorial authorities and courts of the demanding State, whose duty it is to justly enforce the demanding State's criminal law subject, of course, to the limitations imposed by the Constitution and laws of the United States. Biddinger v. Commissioner of Police, supra, at 135; Drew v. Thaw, supra, at 440. The courts of asylum States may do no more than ascertain whether the requisites of the Extradition Act have been met. As the Court held in Michigan v. Doran, supra, the Act leaves only four issues open for consideration before the fugitive is delivered up:
"(a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive." 439 U.S., at 289.
The parties argue at length about the propriety of the California courts taking judicial notice of their prior child custody decrees in this extradition proceeding. But even if taking judicial notice of the decrees is otherwise proper, the question remains whether the decrees noticed were relevant to one of these four inquiries. The Smolins do not dispute that the extradition documents are in order, that they are the persons named in the documents and that they meet the technical definition of a "fugitive." Their sole contention is that, in light of the earlier California custody decrees and the federal Parental Kidnaping Prevention Act of 1980, 28 U.S. C. § 1738A, they have not been properly charged with a violation of Louisiana's kidnaping statute, La. Rev. Stat. Ann. § 14:45 (West 1986).
*409 Section 14:45A(4) prohibits the
"intentional taking, enticing or decoying away and removing from the state, by any parent, of his or her child, from the custody of any person to whom custody has been awarded by any court of competent jurisdiction of any state, without the consent of the legal custodian, with intent to defeat the jurisdiction of the said court over the custody of the child."
A properly certified Louisiana information charges the Smolins with violating this statute by kidnaping Jennifer and Jamie Smolin. The information is based on the sworn affidavit of Judith Pope which asserts:
" `On March 9, 1984, at approximately 7:20 a. m., Richard Smolin and Gerard Smolin, kidnapped Jennifer Smolin, aged 10, and James C. Smolin, aged 9, from the affiant's custody while said children were at a bus stop in St. Tammany Parish, Louisiana.
"The affiant has custody of the said children by virtue of a Texas court order dated February 5, 1981, a copy of said order attached hereto and made part hereof. The information regarding the actual kidnapping was told to the affiant by witnesses Mason Galatas and Cheryl Galatas of 2028 Mallard Street, Slidell, Louisiana, and Jimmie Huessler of 2015 Dridle Street, Slidell, Louisiana. Richard Smolin and Gerard Smolin were without authority to remove children from affiant's custody.' " App. B to Pet. for Cert. 5-6.
The information is in proper form, and the Smolins do not dispute that the affidavit, and documents incorporated by reference therein, set forth facts that clearly satisfy each element of the crime of kidnaping as it is defined in La. Rev. Stat. Ann. § 14:45A(4) (West 1986). If we accept as true every fact alleged, the Smolins are properly charged with kidnaping under Louisiana law. In our view, this ends the inquiry into the issue whether or not a crime is charged for purposes of the Extradition Act.
*410 The Smolins argue, however, that more than a formal charge is required, citing the following language from Roberts v. Reilly, 116 U.S. 80, 95 (1885):
"It must appear, therefore, to the governor of the State to whom such a demand is presented, before he can lawfully comply with it, first, that the person demanded is substantially charged with a crime against the laws of the State from whose justice he is alleged to have fled, by an indictment or an affidavit, certified as authentic by the governor of the State making the demand. . . .
"[This] is a question of law, and is always open upon the face of the papers to judicial inquiry, on an application for a discharge under a writ of habeas corpus."
The Smolins claim that this language in Roberts spawned a widespread practice of permitting the fugitive, upon a petition for writ of habeas corpus in the asylum State's courts, to show that the demanding State's charging instrument is so insufficient that it cannot withstand some generalized version of a motion to dismiss or common-law demurrer. Tr. of Oral Arg. 29-36. The cases the Smolins principally rely upon as support for this asserted practice are People ex rel. Lewis v. Commissioner of Correction of City of New York, 100 Misc. 2d 48, 417 N. Y. S. 2d 377 (1979), aff'd, 75 A.D. 2d 526, 426 N. Y. S. 2d 969 (1980), and Application of Varona, 38 Wash. 2d 833, 232 P.2d 923 (1951). See Brief for Respondent 15-17. In Lewis, however, the New York trial court actually granted extradition despite its apparent misgivings about the substantiality of the criminal charge. Lewis, supra, at 56, 417 N. Y. S. 2d, at 382. And, in Varona, the Washington Supreme Court relied on the fact that the indictment, on its face, did not charge a crime under California law. Application of Varona, supra, at 833-834, 232 P.2d, at 923-924. Neither case, in our view, supports the broad proposition that the asylum State's courts may entertain motions to dismiss or demurrers to the indictment or information from the demanding State.
*411 To the contrary, our cases make clear that no such inquiry is permitted. For example, in Pierce v. Creecy, decided after Roberts, supra, this Court refused to grant relief from extradition over multiple objections to the sufficiency of the indictment. The Pierce Court concluded that it was enough that "the indictment, whether good or bad, as a pleading, unmistakably describes every element of the crime of false swearing, as it is defined in the Texas Penal Code . . . ." 210 U.S., at 404. It reasoned:
"If more were required it would impose upon courts, in the trial of writs of habeas corpus, the duty of a critical examination of the laws of States with whose jurisprudence and criminal procedure they can have only a general acquaintance. Such a duty would be an intolerable burden, certain to lead to errors in decision, irritable to the just pride of the States and fruitful of miscarriages of justice. The duty ought not be assumed unless it is plainly required by the Constitution, and, in our opinion, there is nothing in the letter or the spirit of that instrument which requires or permits its performance." Id., at 405.
Similarly, in Biddinger v. Commissioner of Police, 245 U.S. 128 (1917), the appellant argued that he had a seemingly valid statute of limitations defense based on the fact that more than three years, the limitations period, had elapsed since the date of the crime recited in the indictment and that he had been publicly and openly resident in the demanding State for that entire period. The Court found that the question of limitations was properly considered only in the demanding State's courts. Id., at 135; see also Drew v. Thaw, 235 U. S., at 439-440 (whether the escape of a person committed to a mental institution is a crime "is a question as to the law of New York which the New York courts must decide").
This proceeding is neither the time nor place for the Smolins' arguments that Judith Pope's affidavit is fraudulent *412 and that the California custody decrees establish Richard as the lawful custodian under the full faith and credit provision of the federal Parental Kidnaping Prevention Act of 1980. There is nothing in the record to suggest that the Smolins are not entirely correct in all of this: that California had exclusive modification jurisdiction over the custody of Jennifer and Jamie; that, under the California decrees, Richard Smolin had lawful custody of the children when he brought them to California; and, that, accordingly, the Smolins did not violate La. Rev. Stat. Ann. § 14:45A(4) (West 1986) as is charged. Of course, the Parental Kidnaping Prevention Act of 1980 creates a uniform federal rule governing custody determinations, a rule to which the courts of Louisiana must adhere when they consider the Smolins' case on the merits. We are not informed by the record why it is that the States of California and Louisiana are so eager to force the Smolins halfway across the continent to face criminal charges that, at least to a majority of the California Supreme Court, appear meritless. If the Smolins are correct, they are not only innocent of the charges made against them, but also victims of a possible abuse of the criminal process. But, under the Extradition Act, it is for the Louisiana courts to do justice in this case, not the California courts: "surrender is not to be interfered with by the summary process of habeas corpus upon speculations as to what ought to be the result of a trial in the place where the Constitution provides for its taking place." Drew v. Thaw, supra, at 440. The judgment of the California Supreme Court is
Reversed. | At issue in this case are the limits imposed by federal law upon state court habeas corpus proceedings challenging an extradition warrant I Richard and Judith Smolin were divorced in California in 1978 Sole custody of their two children, Jennifer and Jamie, was awarded to Judith Smolin, subject to reasonable visitation rights for Richard Until November all the parties remained in San Bernardino County, California, and Richard apparently paid his child support and exercised his visitation rights without serious incident In August however, Judith married James Pope, and in November, Mr Pope's work required that the family relocate to Oregon When the Popes moved without informing Richard, the battle over the custody of the minor children began in earnest It is unnecessary to recite in detail all that ensued Richard alleged, and the California courts later found, that the Popes deliberately attempted to defeat Richard's visitation rights and to preclude him from forming a meaningful relationship with his children in the course of their succeeding relocations from Oregon to Texas to Louisiana On February 13, 1981, the Popes obtained a decree from a Texas court granting full faith and credit to the original California order awarding sole custody to Judith Richard was served but did not appear in the Texas proceeding Before the Texas decree was issued, however, Richard sought and obtained in California Superior Court modification of the underlying California decree, awarding joint custody to Richard and Judith Though properly served, the Popes did not appear in these *403 California proceedings; and, though served with the modification order, the Popes neither complied with its terms, nor notified the Texas court of its existence On January 9, 1981, Richard instituted an action in California Superior Court to find Judith in contempt and to again modify the custody decree to give him sole custody In February 1981, sole custody was granted to Richard by the California court, subject to reasonable visitation rights for Judith This order also was ignored by the Popes, apparently acting on the advice of counsel that the California courts no longer had jurisdiction over the matter Richard did not in fact obtain physical custody for over two years When he finally located the Popes in Louisiana, they began an adoption proceeding, later described by the California courts as "verging on the fraudulent," to sever Richard's legal tie to Jennifer and Jamie App 51 After securing a California warrant to obtain custody of the children on February 27, 1984, Richard and his father, Gerard Smolin, resorted to self-help On March 9, 1984, they picked up Jennifer and Jamie as they were waiting for their school bus in Slidell, Louisiana, and brought them back to California On April 11, 1984, the Popes submitted to the jurisdiction of the California Superior Court and instituted an action to modify the 1981 order granting Richard sole custody Those proceedings are apparently still pending before the California courts Meanwhile, the Popes raised the stakes by instituting a criminal action against Richard and Gerard Smolin in Louisiana On April 1984, after the Popes instituted modification proceedings in California, Judith Pope swore out an affidavit charging Richard and Gerard Smolin with kidnaping Jennifer and Jamie from her custody and asserting that they had acted "without authority to remove children from [her] custody" App B to Pet for Cert 6 On the basis of this affidavit, the Assistant District Attorney for the 22d Judicial District of Louisiana, William Alford, Jr, filed an information *404 charging Richard and Gerard Smolin each with two counts of violating La Rev Stat Ann 14:45 the Louisiana kidnaping statute On June 14, 1984, the Governor of Louisiana formally notified the Governor of California that Richard and Gerard Smolin were charged with "simple kidnaping" in Louisiana and demanded that they be delivered up for 716 P 2d, at 993-994 In early August 1984, the Smolins petitioned in the California Superior Court for a writ of habeas corpus to block the anticipated extradition warrants On August 17, 1984, the anticipated warrants issued and on August 24, 1984, the Superior Court orally granted a writ of habeas corpus after taking judicial notice of the various custody orders that had been issued The court concluded "that the findings in the family law case adequately demonstrate that, in fact, the process initiated by Mrs Pope in Louisiana and her declarations and affidavits were totally insufficient to establish any basis for rights of either herself personally or for the State of Louisiana" App C to Pet for Cert 5 California then sought a writ of mandate in the California Court of Appeal on the ground that the Superior Court had abused its discretion in blocking extradition The Court of Appeal reluctantly issued the writ: "Although we abhor Judy's apparent willingness to take advantage of our federal system to further this custody battle, and are sympathetic to [the Smolins'] position, we must conclude that their arguments are irrelevant to the only issue a court in the asylum state may properly address: are the documents on their face in order" App B to Pet for Cert 16 A divided California Supreme Court reversed The majority interpreted the Superior Court's finding to be that the Smolins were not substantially charged with a crime It found that the California custody decrees were properly considered * by the Superior Court, and that its conclusion that the Smolins were not substantially charged was correct Under the full faith and credit provisions of the federal Parental Kidnaping Prevention Act of 28 US C 1738A, the majority determined that those decrees conclusively established that Richard Smolin was the lawful custodian of the children at the time that they were taken from Louisiana to California[*] Finally, the court found that, under Louisiana law, the lawful custodian cannot be guilty of kidnaping children in his custody We granted certiorari, to consider whether the Extradition Clause, Art IV, 2, cl 2, and the Extradition Act, 18 US C 3182, prevent the California Supreme Court from refusing to permit extradition on these grounds II The Federal Constitution places certain limits on the sovereign powers of the States, limits that are an essential part of the Framers' conception of national identity and Union One such limit is found in Art IV, 2, cl 2, the Extradition Clause: "A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority *406 of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime" The obvious objective of the Extradition Clause is that no State should become a safe haven for the fugitives from a sister State's criminal justice system As this Court noted in its first opportunity to construe the Extradition Clause: "[T]he statesmen who framed the Constitution were fully sensible, that from the complex character of the Government, it must fail unless the States mutually supported each other and the General Government; and that nothing would be more likely to disturb its peace, and end in discord, than permitting an offender against the laws of a State, by passing over a mathematical line which divides it from another, to defy its process, and stand ready, under the protection of the State, to repeat the offense as soon as another opportunity offered" The Extradition Clause, however, does not specifically establish a procedure by which interstate extradition is to take place, and, accordingly, has never been considered to be self-executing See, e g, ; Early in our history, the lack of an established procedure led to a bitter dispute between the States of Virginia and Pennsylvania J Scott, Law of Interstate Rendition 5-7 In 1791, Pennsylvania demanded the extradition of three men charged with kidnaping a free black man and selling him into slavery Virginia refused to comply with Pennsylvania's demand The controversy was finally submitted to President Washington who, relying upon the advice of Attorney General Randolph, 9 National State Papers of the United States 1789-1817, pt II, pp 144-145 (E Carzo ed 1985), personally appeared before the Congress to obtain the enactment of a law to regulate the extradition process Congress *407 responded by enacting the Extradition Act of 1793, which provides in its current form: "Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear" 18 US C 3182 This Court has held the Extradition Act of 1793 to be a proper exercise of Congress' powers under the Extradition Clause and Art IV, 1, to "prescribe the manner in which acts, records and proceedings shall be proved, and the effect thereof" ; By the express terms of federal law, therefore, the asylum State is bound to deliver up to the demanding State's agent a fugitive against whom a properly certified indictment or affidavit charging a crime is lodged The language, history, and subsequent construction of the Extradition Act make clear that Congress intended extradition to be a summary procedure As we have repeatedly held, extradition proceedings are "to be kept within narrow bounds"; they are "emphatically" not the appropriate time or place for entertaining defenses or determining the guilt or innocence of the charged party ; see also, e g, ; ; ; In re Strauss, Those inquiries are left to the professorial authorities and courts of the demanding State, whose duty it is to justly enforce the demanding State's criminal law subject, of course, to the limitations imposed by the Constitution and laws of the United States Biddinger v Commissioner of at ; at The courts of asylum States may do no more than ascertain whether the requisites of the Extradition Act have been met As the Court held in the Act leaves only four issues open for consideration before the fugitive is delivered up: "(a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive" The parties argue at length about the propriety of the California courts taking judicial notice of their prior child custody decrees in this extradition proceeding But even if taking judicial notice of the decrees is otherwise proper, the question remains whether the decrees noticed were relevant to one of these four inquiries The Smolins do not dispute that the extradition documents are in order, that they are the persons named in the documents and that they meet the technical definition of a "fugitive" Their sole contention is that, in light of the earlier California custody decrees and the federal Parental Kidnaping Prevention Act of 28 US C 1738A, they have not been properly charged with a violation of Louisiana's kidnaping statute, La Rev Stat Ann 14:45 *409 Section 14:45A(4) prohibits the "intentional taking, enticing or decoying away and removing from the state, by any parent, of his or her child, from the custody of any person to whom custody has been awarded by any court of competent jurisdiction of any state, without the consent of the legal custodian, with intent to defeat the jurisdiction of the said court over the custody of the child" A properly certified Louisiana information charges the Smolins with violating this statute by kidnaping Jennifer and Jamie Smolin The information is based on the sworn affidavit of Judith Pope which asserts: " `On March 9, 1984, at approximately 7:20 a m, Richard Smolin and Gerard Smolin, kidnapped Jennifer Smolin, aged 10, and James C Smolin, aged 9, from the affiant's custody while said children were at a bus stop in St Tammany Parish, Louisiana "The affiant has custody of the said children by virtue of a Texas court order dated February 5, 1981, a copy of said order attached hereto and made part hereof The information regarding the actual kidnapping was told to the affiant by witnesses Mason Galatas and Cheryl Galatas of 2028 Mallard Street, Slidell, Louisiana, and Jimmie Huessler of 2015 Dridle Street, Slidell, Louisiana Richard Smolin and Gerard Smolin were without authority to remove children from affiant's custody' " App B to Pet for Cert 5-6 The information is in proper form, and the Smolins do not dispute that the affidavit, and documents incorporated by reference therein, set forth facts that clearly satisfy each element of the crime of kidnaping as it is defined in La Rev Stat Ann 14:45A(4) If we accept as true every fact alleged, the Smolins are properly charged with kidnaping under Louisiana law In our view, this ends the inquiry into the issue whether or not a crime is charged for purposes of the Extradition Act *410 The Smolins argue, however, that more than a formal charge is required, citing the following language from : "It must appear, therefore, to the governor of the State to whom such a demand is presented, before he can lawfully comply with it, first, that the person demanded is substantially charged with a crime against the laws of the State from whose justice he is alleged to have fled, by an indictment or an affidavit, certified as authentic by the governor of the State making the demand "[This] is a question of law, and is always open upon the face of the papers to judicial inquiry, on an application for a discharge under a writ of habeas corpus" The Smolins claim that this language in spawned a widespread practice of permitting the fugitive, upon a petition for writ of habeas corpus in the asylum State's courts, to show that the demanding State's charging instrument is so insufficient that it cannot withstand some generalized version of a motion to dismiss or common-law demurrer Tr of Oral Arg 29-36 The cases the Smolins principally rely upon as support for this asserted practice are People ex rel Misc 2d 48, aff'd, and Application of (11) See Brief for Respondent 15-17 In however, the New York trial court actually granted extradition despite its apparent misgivings about the substantiality of the criminal charge 417 N Y S 2d, at 382 And, in the Washington Supreme Court relied on the fact that the indictment, on its face, did not charge a crime under California law Application of -924 Neither case, in our view, supports the broad proposition that the asylum State's courts may entertain motions to dismiss or demurrers to the indictment or information from the demanding State *411 To the contrary, our cases make clear that no such inquiry is permitted For example, in decided after this Court refused to grant relief from extradition over multiple objections to the sufficiency of the indictment The Pierce Court concluded that it was enough that "the indictment, whether good or bad, as a pleading, unmistakably describes every element of the crime of false swearing, as it is defined in the Texas Penal Code " It reasoned: "If more were required it would impose upon courts, in the trial of writs of habeas corpus, the duty of a critical examination of the laws of States with whose jurisprudence and criminal procedure they can have only a general acquaintance Such a duty would be an intolerable burden, certain to lead to errors in decision, irritable to the just pride of the States and fruitful of miscarriages of justice The duty ought not be assumed unless it is plainly required by the Constitution, and, in our opinion, there is nothing in the letter or the spirit of that instrument which requires or permits its performance" Id, at Similarly, in Biddinger v Commissioner of the appellant argued that he had a seemingly valid statute of limitations defense based on the fact that more than three years, the limitations period, had elapsed since the date of the crime recited in the indictment and that he had been publicly and openly resident in the demanding State for that entire period The Court found that the question of limitations was properly considered only in the demanding State's courts Id, at ; see also 235 U S, at 439- This proceeding is neither the time nor place for the Smolins' arguments that Judith Pope's affidavit is fraudulent *412 and that the California custody decrees establish Richard as the lawful custodian under the full faith and credit provision of the federal Parental Kidnaping Prevention Act of There is nothing in the record to suggest that the Smolins are not entirely correct in all of this: that California had exclusive modification jurisdiction over the custody of Jennifer and Jamie; that, under the California decrees, Richard Smolin had lawful custody of the children when he brought them to California; and, that, accordingly, the Smolins did not violate La Rev Stat Ann 14:45A(4) as is charged Of course, the Parental Kidnaping Prevention Act of creates a uniform federal rule governing custody determinations, a rule to which the courts of Louisiana must adhere when they consider the Smolins' case on the merits We are not informed by the record why it is that the States of California and Louisiana are so eager to force the Smolins halfway across the continent to face criminal charges that, at least to a majority of the California Supreme Court, appear meritless If the Smolins are correct, they are not only innocent of the charges made against them, but also victims of a possible abuse of the criminal process But, under the Extradition Act, it is for the Louisiana courts to do justice in this case, not the California courts: "surrender is not to be interfered with by the summary process of habeas corpus upon speculations as to what ought to be the result of a trial in the place where the Constitution provides for its taking place" at The judgment of the California Supreme Court is Reversed |
Justice Powell | dissenting | false | Columbus Bd. of Ed. v. Penick | 1979-10-01T00:00:00 | null | https://www.courtlistener.com/opinion/110141/columbus-bd-of-ed-v-penick/ | https://www.courtlistener.com/api/rest/v3/clusters/110141/ | 1,979 | 1978-153 | 2 | 7 | 2 | [*]
I join the dissenting opinions of MR. JUSTICE REHNQUIST and write separately to emphasize several points. The Court's opinions in these two cases are profoundly disturbing. They appear to endorse a wholly new constitutional concept applicable to school cases. The opinions also seem remarkably *480 insensitive to the now widely accepted view that a quarter of a century after Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I), the federal judiciary should be limiting rather than expanding the extent to which courts are operating the public school systems of our country. In expressing these views, I recognize, of course, that my Brothers who have joined the Court's opinions are motivated by purposes and ideals that few would question. My dissent is based on a conviction that the Court's opinions condone the creation of bad constitutional law and will be even worse for public education an element of American life that is essential, especially for minority children.
I
MR. JUSTICE REHNQUIST'S dissents demonstrate that the Court's decisions mark a break with both precedent and principle. The Court indulges the courts below in their stringing together of a chain of "presumptions," not one of which is close enough to reality to be reasonable. See ante, at 472 (opinion of STEWART, J.). This chain leads inexorably to the remarkable conclusion that the absence of integration found to exist in a high percentage of the 241 schools in Columbus and Dayton was caused entirely by intentional violations of the Fourteenth Amendment by the school boards of these two cities. Although this conclusion is tainted on its face, is not supported by evidence in either case, and as a general matter seems incredible, the courts below accepted it as the necessary premise for requiring as a matter of constitutional law a systemwide remedy prescribing racial balance in each and every school.
There are unintegrated schools in every major urban area in the country that contains a substantial minority population. This condition results primarily from familiar segregated housing patterns, whichin turnare caused by social, economic, and demographic forces for which no school board is responsible. These causes of the greater part of the school *481 segregation problem are not newly discovered. Nearly a decade ago, Professor Bickel wrote:
"In most of the larger urban areas, demographic conditions are such that no policy that a court can order, and a school board, a city or even a state has the capability to put into effect, will in fact result in the foreseeable future in racially balanced public schools. Only a reordering of the environment involving economic and social policy on the broadest conceivable front might have an appreciable impact." A. Bickel, The Supreme Court and the Idea of Progress 132, and n. 47 (1970).[1]
Federal courts, including this Court today, continue to ignore these indisputable facts. Relying upon fictions and presumptions in school cases that are irreconcilable with principles of equal protection law applied in all other cases, see, e. g., Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977); Washington v. Davis, 426 U.S. 229 (1976), federal courts prescribe systemwide remedies without relation to the causes of the segregation found to exist, and implement their decrees by requiring extensive transportation of children of all school ages.
The type of state-enforced segregation that Brown I properly condemned no longer exists in this country. This is not to say that school boardsparticularly in the great cities of the North, Midwest, and Westare taking all reasonable measures to provide integrated educational opportunities. As I indicated in my separate opinion in Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189, 223-236 (1973), de facto segregation has existed on a large scale in many of these cities, *482 and often it is indistinguishable in effect from the type of de jure segregation outlawed by Brown. Where there is proof of intentional segregative action or inaction, the federal courts must act, but their remedies should not exceed the scope of the constitutional violation. Dayton Board of Education v. Brinkman, 433 U.S. 406 (1977); Austin Independent School Dist. v. United States, 429 U.S. 990, 991 (1976) (POWELL, J., concurring); Pasadena City Board of Education v. Spangler, 427 U.S. 424 (1976); Milliken v. Bradley, 418 U.S. 717 (1974); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16 (1971). Systemwide remedies such as were ordered by the courts below, and today are approved by this Court, lack any principled basis when the absence of integration in all schools cannot reasonably be attributed to discriminatory conduct.[2]
MR. JUSTICE REHNQUIST has dealt devastatingly with the *483 way in which the Court of Appeals endowed prior precedents with new and wondrous meanings. I can add little to what he has said. I therefore move to more general but, in my view, important considerations that the Court simply ignores.
II
Holding the school boards of these two cities responsible for all of the segregation in the Dayton and Columbus systems and prescribing fixed racial ratios in every school as the constitutionally required remedy necessarily implies a belief that the same school boardsunder court supervision will be capable of bringing about and maintaining the desired racial balance in each of these schools. The experience in city after city demonstrates that this is an illusion. The process of resegregation, stimulated by resentment against judicial coercion and concern as to the effect of court supervision of education, will follow today's decisions as surely as it has in other cities subjected to similar sweeping decrees.
The orders affirmed today typify intrusions on local and professional authorities that affect adversely the quality of education. They require an extensive reorganization of both school systems, including the reassignment of almost half of the 96,000 students in the Columbus system and the busing of some 15,000 students in Dayton. They also require reassignments of teachers and other staff personnel, reorganization of grade structures, and the closing of certain schools. The orders substantially dismantle and displace neighborhood schools in the face of compelling economic and educational reasons for preserving them. This wholesale substitution of judicial legislation for the judgments of elected officials and professional educators derogates the entire process of public education.[3] Moreover, it constitutes a serious interference *484 with the private decisions of parents as to how their children will be educated. These harmful consequences are the inevitable byproducts of a judicial approach that ignores other relevant factors in favor of an exclusive focus on racial balance in every school.
These harmful consequences, moreover, in all likelihood will provoke responses that will defeat the integrative purpose of the courts' orders. Parents, unlike school officials, are not bound by these decrees and may frustrate them through the simple expedient of withdrawing their children from a public school system in which they have lost confidence. In spite of the substantial costs often involved in relocation of the family or in resort to private education,[4] experience demonstrates that many parents view these alternatives as preferable to submitting their children to court-run school systems. In the words of a leading authority:
"An implication that should have been seen all along but can no longer be ignored is that a child's enrollment in a given public school is not determined by a governmental decision alone. It is a joint result of a governmental decision (the making of school assignments) and parental decisions, whether to remain in the same residential location, whether to send their child to a private school, or which school district to move into when moving into a metropolitan area. The fact that the child's enrollment is a result of two decisions operating jointly means that government policies must, to be effective, anticipate parental decisions and obtain the parents' active cooperation in implementing school policies." Coleman, *485 New Incentives for Desegregation, 7 Human Rights, No. 3, pp. 10, 13 (1978).
At least where inner-city populations comprise a large proportion of racial minorities and surrounding suburbs remain white, conditions that exist in most large American cities, the demonstrated effect of compulsory integration is a substantial exodus of whites from the system. See J. Coleman, S. Kelly, & J. Moore, Trends in School Segregation, 1968-1973, pp. 66, 76-77 (1975). It would be unfair and misleading to attribute this phenomenon to a racist response to integration per se. It is at least as likely that the exodus is in substantial part a natural reaction to the displacement of professional and local control that occurs when courts go into the business of restructuring and operating school systems.
Nor will this resegregation be the only negative effect of court-coerced integration on minority children. Public schools depend on community support for their effectiveness. When substantial elements of the community are driven to abandon these schools, their quality tends to decline, sometimes markedly. Members of minority groups, who have relied especially on education as a means of advancing themselves, also are likely to react to this decline in quality by removing their children from public schools.[5] As a result, *486 public school enrollment increasingly will become limited to children from families that either lack the resources to choose alternatives or are indifferent to the quality of education. The net effect is an overall deterioration in public education, the one national resource that traditionally has made this country a land of opportunity for diverse ethnic and racial groups. See Keyes, 413 U. S., at 250 (opinion of POWELL, J.).
III
If public education is not to suffer further, we must "return to a more balanced evaluation of the recognized interests of our society in achieving desegregation with other educational and societal interests a community may legitimately assert." Id., at 253. The ultimate goal is to have quality school systems in which racial discrimination is neither practiced nor tolerated. It has been thought that ethnic and racial diversity in the classroom is a desirable component of sound education in our country of diverse populations, a view to which I subscribe. The question that courts in their single-minded pursuit of racial balance seem to ignore is how best to move toward this goal.
For a decade or more after Brown I, the courts properly focused on dismantling segregated school systems as a means of eliminating state-imposed discrimination and furthering wholesome diversity in the schools.[6] Experience in recent *487 years, however, has case serious doubt upon the efficacy of far-reaching judicial remedies directed not against specific constitutional violations, but rather imposed on an entire school system on the fictional assumption that the existence of identifiable black or white schools is caused entirely by intentional segregative conduct, and is evidence of systemwide discrimination. In my view, some federal courtsnow led by this Courtare pursuing a path away from rather than toward the desired goal. While these courts conscientiously view their judgments as mandated by the Constitution (a view that would have astonished constitutional scholars throughout most of our history), the fact is that restructuring and overseeing the operation of major public school systems as ordered in these casesfairly can be viewed as social engineering that hardly is appropriate for the federal judiciary.
The time has come for a thoughtful re-examination of the proper limits of the role of courts in confronting the intractable problems of public education in our complex society. Proved discrimination by state or local authorities should never be tolerated, and it is a first responsibility of the judiciary to put an end to it where it has been proved. But many courts have continued also to impose wide-ranging decrees, and to retain ongoing supervision over school systems. Local and state legislative and administrative authorities have been supplanted or relegated to initiative-stifling roles as minions of the courts. Indeed, there is reason to believe that some legislative bodies have welcomed judicial activism with respect to a subject so inherently difficult and so politically sensitive that the prospect of others confronting it seems inviting. Federal courts no longer should encourage this deference by the appropriate authoritiesno matter how willing they may *488 be to defer. Courts are the branch least competent to provide long-range solutions acceptable to the public and most conducive to achieving both diversity in the classroom and quality education.
School boards need not wait, and many have not waited, for innovative legislative guidance. The opinion of the Court in Swann, though often cited (as in this case) for views I think were never intended, identified some constructive actions always open to school authorities:
"An optional majority-to-minority transfer provision has long been recognized as a useful part of every desegregation plan. Provision for optional transfer of those in the majority racial group of a particular school to other schools where they will be in the minority [or less in the majority] is an indispensable remedy for those students willing to transfer to other schools in order to lessen the impact on them of the state-imposed stigma of segregation. In order to be effective, such a transfer arrangement must grant the transferring student free transportation and space must be made available in the school to which he desires to move." 402 U.S., at 26-27.
See also Keyes, 413 U. S., at 240-241 (opinion of POWELL, J.). Incentives can be employed to encourage these transfers, such as creation of magnet schools providing special educational benefits and state subsidization of those schools that expand their minority enrollments. See, e. g., Willie, Racial Balance or Quality Education?, in School Desegregation, Shadow and Substance 7 (Levinsohn & Wright eds. 1976). These and like plans, if adopted voluntarily by States, also could help counter the effects of racial imbalances between school districts that are beyond the reach of judicial correction. See Milliken v. Bradley, 418 U.S. 717 (1974); cf. Coleman, 7 Human Rights, at 48-49.[7]
*489 After all, and in spite of what many view as excessive government regulation, we are a free societyperhaps the most free of any in the world. Our people instinctively resent coercion, and perhaps most of all when it affects their children and the opportunities that only education affords them. It is now reasonably clear that the goal of diversity that we call integration, if it is to be lasting and conducive to quality education, must have the support of parents who so frequently have the option to choose where their children will attend school. Courts, of course, should confront discrimination wherever it is found to exist. But they should recognize limitations on judicial action inherent in our system and also the limits of effective judicial power. The primary and continuing responsibility for public education, including the bringing about and maintaining of desired diversity, must be left with school officials and public authorities.
MR. JUSTICE REHNQUIST, with whom MR. | [*] I join the dissenting opinions of MR. JUSTICE REHNQUIST and write separately to emphasize several points. The Court's opinions in these two cases are profoundly disturbing. They appear to endorse a wholly new constitutional concept applicable to school cases. The opinions also seem remarkably *480 insensitive to the now widely accepted view that a quarter of a century after the federal judiciary should be limiting rather than expanding the extent to which courts are operating the public school systems of our country. In expressing these views, I recognize, of course, that my Brothers who have joined the Court's opinions are motivated by purposes and ideals that few would question. My dissent is based on a conviction that the Court's opinions condone the creation of bad constitutional law and will be even worse for public education an element of American life that is essential, especially for minority children. I MR. JUSTICE REHNQUIST'S dissents demonstrate that the Court's decisions mark a break with both precedent and principle. The Court indulges the courts below in their stringing together of a chain of "presumptions," not one of which is close enough to reality to be reasonable. See ante, at 472 (opinion of STEWART, J.). This chain leads inexorably to the remarkable conclusion that the absence of integration found to exist in a high percentage of the 241 schools in Columbus and Dayton was caused entirely by intentional violations of the Fourteenth Amendment by the school boards of these two cities. Although this conclusion is tainted on its face, is not supported by evidence in either case, and as a general matter seems incredible, the courts below accepted it as the necessary premise for requiring as a matter of constitutional law a systemwide remedy prescribing racial balance in each and every school. There are unintegrated schools in every major urban area in the country that contains a substantial minority population. This condition results primarily from familiar segregated housing patterns, whichin turnare caused by social, economic, and demographic forces for which no school board is responsible. These causes of the greater part of the school *481 segregation problem are not newly discovered. Nearly a decade ago, Professor Bickel wrote: "In most of the larger urban areas, demographic conditions are such that no policy that a court can order, and a school board, a city or even a state has the capability to put into effect, will in fact result in the foreseeable future in racially balanced public schools. Only a reordering of the environment involving economic and social policy on the broadest conceivable front might have an appreciable impact." A. Bickel, The Supreme Court and the Idea of Progress 132, and n. 47 (1970).[1] Federal courts, including this Court today, continue to ignore these indisputable facts. Relying upon fictions and presumptions in school cases that are irreconcilable with principles of equal protection law applied in all other cases, see, e. g., Personnel Administrator of ; Arlington ; federal courts prescribe systemwide remedies without relation to the causes of the segregation found to exist, and implement their decrees by requiring extensive transportation of children of all school ages. The type of state-enforced segregation that Brown I properly condemned no longer exists in this country. This is not to say that school boardsparticularly in the great cities of the North, Midwest, and Westare taking all reasonable measures to provide integrated educational opportunities. As I indicated in my separate opinion in de facto segregation has existed on a large scale in many of these cities, *482 and often it is indistinguishable in effect from the type of de jure segregation outlawed by Brown. Where there is proof of intentional segregative action or inaction, the federal courts must act, but their remedies should not exceed the scope of the constitutional violation. Dayton Board of ; Austin Independent School ; Pasadena City Board of ; ; Systemwide remedies such as were ordered by the courts below, and today are approved by this Court, lack any principled basis when the absence of integration in all schools cannot reasonably be attributed to discriminatory conduct.[2] MR. JUSTICE REHNQUIST has dealt devastatingly with the *483 way in which the Court of Appeals endowed prior precedents with new and wondrous meanings. I can add little to what he has said. I therefore move to more general but, in my view, important considerations that the Court simply ignores. II Holding the school boards of these two cities responsible for all of the segregation in the Dayton and Columbus systems and prescribing fixed racial ratios in every school as the constitutionally required remedy necessarily implies a belief that the same school boardsunder court supervision will be capable of bringing about and maintaining the desired racial balance in each of these schools. The experience in city after city demonstrates that this is an illusion. The process of resegregation, stimulated by resentment against judicial coercion and concern as to the effect of court supervision of education, will follow today's decisions as surely as it has in other cities subjected to similar sweeping decrees. The orders affirmed today typify intrusions on local and professional authorities that affect adversely the quality of education. They require an extensive reorganization of both school systems, including the reassignment of almost half of the 96,000 students in the Columbus system and the busing of some 15,000 students in Dayton. They also require reassignments of teachers and other staff personnel, reorganization of grade structures, and the closing of certain schools. The orders substantially dismantle and displace neighborhood schools in the face of compelling economic and educational reasons for preserving them. This wholesale substitution of judicial legislation for the judgments of elected officials and professional educators derogates the entire process of public education.[3] Moreover, it constitutes a serious interference *484 with the private decisions of parents as to how their children will be educated. These harmful consequences are the inevitable byproducts of a judicial approach that ignores other relevant factors in favor of an exclusive focus on racial balance in every school. These harmful consequences, moreover, in all likelihood will provoke responses that will defeat the integrative purpose of the courts' orders. Parents, unlike school officials, are not bound by these decrees and may frustrate them through the simple expedient of withdrawing their children from a public school system in which they have lost confidence. In spite of the substantial costs often involved in relocation of the family or in resort to private education,[4] experience demonstrates that many parents view these alternatives as preferable to submitting their children to court-run school systems. In the words of a leading authority: "An implication that should have been seen all along but can no longer be ignored is that a child's enrollment in a given public school is not determined by a governmental decision alone. It is a joint result of a governmental decision (the making of school assignments) and parental decisions, whether to remain in the same residential location, whether to send their child to a private school, or which school district to move into when moving into a metropolitan area. The fact that the child's enrollment is a result of two decisions operating jointly means that government policies must, to be effective, anticipate parental decisions and obtain the parents' active cooperation in implementing school policies." Coleman, *485 New Incentives for Desegregation, 7 Human Rights, No. 3, pp. 10, 13 (1978). At least where inner-city populations comprise a large proportion of racial minorities and surrounding suburbs remain white, conditions that exist in most large American cities, the demonstrated effect of compulsory integration is a substantial exodus of whites from the system. See J. Coleman, S. Kelly, & J. Moore, Trends in School Segregation, 1968-1973, pp. 66, 76-77 (1975). It would be unfair and misleading to attribute this phenomenon to a racist response to integration per se. It is at least as likely that the exodus is in substantial part a natural reaction to the displacement of professional and local control that occurs when courts go into the business of restructuring and operating school systems. Nor will this resegregation be the only negative effect of court-coerced integration on minority children. Public schools depend on community support for their effectiveness. When substantial elements of the community are driven to abandon these schools, their quality tends to decline, sometimes markedly. Members of minority groups, who have relied especially on education as a means of advancing themselves, also are likely to react to this decline in quality by removing their children from public schools.[5] As a result, *486 public school enrollment increasingly will become limited to children from families that either lack the resources to choose alternatives or are indifferent to the quality of education. The net effect is an overall deterioration in public education, the one national resource that traditionally has made this country a land of opportunity for diverse ethnic and racial groups. See III If public education is not to suffer further, we must "return to a more balanced evaluation of the recognized interests of our society in achieving desegregation with other educational and societal interests a community may legitimately assert." The ultimate goal is to have quality school systems in which racial discrimination is neither practiced nor tolerated. It has been thought that ethnic and racial diversity in the classroom is a desirable component of sound education in our country of diverse populations, a view to which I subscribe. The question that courts in their single-minded pursuit of racial balance seem to ignore is how best to move toward this goal. For a decade or more after Brown I, the courts properly focused on dismantling segregated school systems as a means of eliminating state-imposed discrimination and furthering wholesome diversity in the schools.[6] Experience in recent *487 years, however, has case serious doubt upon the efficacy of far-reaching judicial remedies directed not against specific constitutional violations, but rather imposed on an entire school system on the fictional assumption that the existence of identifiable black or white schools is caused entirely by intentional segregative conduct, and is evidence of systemwide discrimination. In my view, some federal courtsnow led by this Courtare pursuing a path away from rather than toward the desired goal. While these courts conscientiously view their judgments as mandated by the Constitution (a view that would have astonished constitutional scholars throughout most of our history), the fact is that restructuring and overseeing the operation of major public school systems as ordered in these casesfairly can be viewed as social engineering that hardly is appropriate for the federal judiciary. The time has come for a thoughtful re-examination of the proper limits of the role of courts in confronting the intractable problems of public education in our complex society. Proved discrimination by state or local authorities should never be tolerated, and it is a first responsibility of the judiciary to put an end to it where it has been proved. But many courts have continued also to impose wide-ranging decrees, and to retain ongoing supervision over school systems. Local and state legislative and administrative authorities have been supplanted or relegated to initiative-stifling roles as minions of the courts. Indeed, there is reason to believe that some legislative bodies have welcomed judicial activism with respect to a subject so inherently difficult and so politically sensitive that the prospect of others confronting it seems inviting. Federal courts no longer should encourage this deference by the appropriate authoritiesno matter how willing they may *488 be to defer. Courts are the branch least competent to provide long-range solutions acceptable to the public and most conducive to achieving both diversity in the classroom and quality education. School boards need not wait, and many have not waited, for innovative legislative guidance. The opinion of the Court in Swann, though often cited (as in this case) for views I think were never intended, identified some constructive actions always open to school authorities: "An optional majority-to-minority transfer provision has long been recognized as a useful part of every desegregation plan. Provision for optional transfer of those in the majority racial group of a particular school to other schools where they will be in the minority [or less in the majority] is an indispensable remedy for those students willing to transfer to other schools in order to lessen the impact on them of the state-imposed stigma of segregation. In order to be effective, such a transfer arrangement must grant the transferring student free transportation and space must be made available in the school to which he desires to move." -27. See also -241 Incentives can be employed to encourage these transfers, such as creation of magnet schools providing special educational benefits and state subsidization of those schools that expand their minority enrollments. See, e. g., Willie, Racial Balance or Quality Education?, in School Desegregation, Shadow and Substance 7 These and like plans, if adopted voluntarily by States, also could help counter the effects of racial imbalances between school districts that are beyond the reach of judicial correction. See ; cf. Coleman, 7 Human Rights, at 48-49.[7] *489 After all, and in spite of what many view as excessive government regulation, we are a free societyperhaps the most free of any in the world. Our people instinctively resent coercion, and perhaps most of all when it affects their children and the opportunities that only education affords them. It is now reasonably clear that the goal of diversity that we call integration, if it is to be lasting and conducive to quality education, must have the support of parents who so frequently have the option to choose where their children will attend school. Courts, of course, should confront discrimination wherever it is found to exist. But they should recognize limitations on judicial action inherent in our system and also the limits of effective judicial power. The primary and continuing responsibility for public education, including the bringing about and maintaining of desired diversity, must be left with school officials and public authorities. MR. JUSTICE REHNQUIST, with whom MR. |
Justice Breyer | dissenting | false | Stone v. INS | 1995-04-19T00:00:00 | null | https://www.courtlistener.com/opinion/117922/stone-v-ins/ | https://www.courtlistener.com/api/rest/v3/clusters/117922/ | 1,995 | 1994-046 | 1 | 6 | 3 | The majority reads § 106(a) of the Immigration and Nationality Act (INA), 8 U.S. C. § 1105a(a) (1988 ed., Supp. V), as creating an exception to the ordinary legal rules that govern the interaction of (1) motions for agency reconsideration with (2) time limits for appeals. In my view, the statute does not create such an exception. And, reading it to do so risks unnecessary complexity in the technical, but important, matter of how one petitions a court for judicial review of an adverse agency decision. For these reasons, I dissent.
This Court, in ICC v. Locomotive Engineers, 482 U.S. 270 (1987), considered the interaction between reconsideration motions and appeal time limits when one wants to petition a court of appeals to review an adverse judgment of an administrative agency (which I shall call an "agency/court" appeal). The Court held that this interaction resembled that which takes place between (1) an appeal from a district court judgment to a court of appeals (which I shall call a "court/court" appeal) and (2) certain motions for district court reconsideration, namely, those filed soon after entry of the district court judgment. See Fed. Rule App. Proc. 4(a)(4). The relevant statute (commonly called the Hobbs Act) said that a petition for review of a final agency order may be filed in the court *407 of appeals "within 60 days after its entry." 28 U.S. C. § 2344. The Court concluded, on the basis of precedent, that the filing of a proper petition for reconsideration, "within the period allotted for judicial review of the original order . . . tolls the period for judicial review of the original order." 482 U.S., at 279. That order can "be appealed to the courts. . . after the petition for reconsideration is denied." Ibid. See also id., at 284-285.
In my view, we should interpret the INA as calling for tolling, just as we interpreted the Hobbs Act in Locomotive Engineers. For one thing, the appeals time limit language in the INA is similar to that in the Hobbs Act. Like the Hobbs Act, the INA does not mention tolling explicitly; it simply says that "a petition for review may be filed not later than 90 days after the date of the issuance of the final deportation order." INA § 106(a)(1), 8 U.S. C. § 1105a(a)(1) (1988 ed., Supp. V). More importantly, the INA explicitly states that the "procedure prescribed by, and all the provisions of [the Hobbs Act, 28 U.S. C. § 2341 et seq., ] shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation." INA § 106(a), 8 U.S. C. § 1105a(a). This statutory phrase is not conclusive because it is followed by several exceptions, one of which is the subsection setting the "[t]ime for filing [a] petition" for review. INA § 106(a)(1), 8 U.S. C. § 1105a(a)(1). But, the context suggests that the reason for calling the latter clause an exception lies in the number of days permitted for filing 90 in the INA, as opposed to 60 in the Hobbs Act. Nothing in the language of § 106(a) (which was amended three years after Locomotive Engineers, see Immigration Act of 1990, § 545(b), 104 Stat. 5065) suggests any further exception in respect to tolling.
Finally, interpreting the INA and the Hobbs Act consistently makes it easier for the bar to understand, and to follow, these highly technical rules. With consistent rules, a nonimmigration-specialist lawyer (say, a lawyer used to working *408 in the ordinary agency/court context) who seeks reconsideration of a Board of Immigration Appeals (BIA) decision is less likely to lose his client's right to appeal simply through inadvertence.
The majority reaches a different conclusion because it believes that one subsection of the INA, § 106(a)(6), is inconsistent with the ordinary Locomotive Engineers tolling rule. That subsection says that
"whenever a petitioner seeks [(1)] review of [a final deportation] order . . . any [(2)] review sought with respect to a motion to reopen or reconsider such an order shall be consolidated with the review of the order." 8 U.S. C. § 1105a(a)(6) (1988 ed., Supp. V).
This "consolidation" subsection, however, says nothing about tolling. Indeed, it does not address, even in a general way, the timing of petitions for judicial review; it just says what must happen when two reviews make it separately to the court of appeals and are on the court's docket at the same time (i. e., they must be consolidated). And, the legislative history is likewise silent on the matter. See, e. g., H. R. Conf. Rep. No. 101-955, pp. 132-133 (1990). Given that § 106(a)(6) was enacted only three years after Locomotive Engineers, it seems unlikely that Congress consciously created a significantly different approach to the reviewdeadline/reconsideration-petition problem (with the consequent risk of confusing lawyers) in so indirect a manner.
Nevertheless, the majority believes this subsection is inconsistent with the ordinary Locomotive Engineers tolling rule because application of the ordinary tolling rule would normally lead an alien to appeal both (1) the original deportation order and (2) a denial of agency reconsideration, in a single petition, after the denial takes place. Thus, in the majority's view, one could never find (1) a petition to review an original deportation order and (2) a petition to review a denial of a motion to reconsider that order, properly together *409 in the court of appeals at the same time. And, for that reason, there would be nothing to "consolidate" under the statute. An opposite rule (one which denies tolling) would, in the majority's view, sometimes produce (simultaneously) both (1) an initial appeal from the original order and (2) an appeal from a denial of reconsideration (if the reconsideration motion were decided, and the second appeal taken, before the court could decide the initial appeal). The "notolling" rule would therefore sometimes produce two appeals, ready for consolidation. The majority concludes that it must infer this "no-tolling" rule in order to give the "consolidation" subsection some work to do and thereby make it legally meaningful.
I do not believe it necessary, however, to create a special exception from the ordinary Locomotive Engineers tolling rule in order to make the "consolidation" subsection meaningful, for even under that ordinary tolling rule, the "consolidation" subsection will have work to do. Consider the following case: The BIA enters a final deportation order on Day Zero. The alien files a timely petition for review in a court of appeals on Day 50. Circumstances suddenly changesay, in the alien's home countryand on Day 70 the alien then files a motion to reopen with the agency. (The majority says such a filing "must be" a "rare" happening, ante, at 404, but I do not see why. New circumstances justifying reopening or reconsideration might arise at any time. Indeed, this situation must arise with some frequency, since INS regulations expressly recognize that a motion to reopen or reconsider may be filed after judicial review has been sought. See, e. g., 8 CFR § 3.8(a) (1994) (requiring that motions to reopen or reconsider state whether the validity of the order to be reopened has been, or is, the subject of a judicial proceeding).) The agency denies the reconsideration motion on Day 100. The alien then appeals that denial on Day 110. In this case, the court of appeals would have before it two appeals: the appeal filed on Day 50 and the appeal filed on *410 Day 110. The "consolidation" subsection tells the court of appeals to consolidate those two appeals and decide them together. (In fact, the alien might well have informed the court of appeals, say on Day 70, about the reconsideration motion, in which case the court, unless it thought the motion a frivolous stalling device, might have postponed decision on the merits of the initial appeal, awaiting the results of the reconsideration decision, an appeal from which it could then consolidate with the initial appeal. See, e. g., Gebremichael v. INS, 10 F.3d 28, 33, n. 13 (CA1 1993) (decision on appeal stayed until the agency resolved alien's motion for reconsideration; initial appeal then consolidated with the appeal from the denial of rehearing).) In this example, the subsection would have meaning as an "exception" to the Hobbs Act, cf. ante, at 404-405, since nothing in the Hobbs Act requires the consolidation of court reviews.
The majority understands this counterexample, but rejects it, for fear of creating both a conceptual and a precedential problem. Neither of those perceived problems, however, is significant. The conceptual problem the majority fears arises out of the fact that, under the ordinary tolling rule, the filing of a petition for reconsideration is deemed to render an otherwise "final" initial (but not-yet-appealed) order "nonfinal" for purposes of court review. Hence, one may not appeal the merits of that initial order until the district court or agency finally decides the reconsideration petition. The majority believes that the reconsideration petition in the counterexample above (a petition filed after an appeal is taken from the initial order) also renders "nonfinal," and hence not properly appealable, the initial order, removing the initial appeal from the court of appeals, and thereby leaving nothing to consolidate.
The answer to this conceptual argument lies in the "general principle" that "jurisdiction, once vested, is not divested, although a state of things should arrive in which original jurisdiction could not be exercised." United States v. The *411 Little Charles, 26 F. Cas. 979, 982 (No. 15,612) (CC Va. 1818) (Marshall, C. J., Circuit Justice), quoted in Republic Nat. Bank of Miami v. United States, 506 U.S. 80 (1992). The first appeal, as of Day 50, has reached the court of appeals. Thus, conceptually speaking, one should not consider a later filed motion for reconsideration as having "divested" the court of jurisdiction. And, practically speaking, it makes sense to leave the appeal there, permitting the court of appeals to decide it, or to delay it, as circumstances dictate (say, depending upon the extent to which effort and resources already have been expended in prosecuting and deciding the appeal). After all, we have long recognized that courts have inherent power to stay proceedings and "to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." Landis v. North American Co., 299 U.S. 248, 254 (1936); cf. 28 U.S. C. § 1367(c)(3) (1988 ed., Supp. V) (providing that district court may, but need not, decline to exercise supplemental jurisdiction over a claim when it has dismissed all claims over which it has original jurisdiction).
The precedential problem, in the majority's view, arises out of Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam), a court/court case in which this Court held that the filing of a reconsideration motion under Federal Rule of Civil Procedure 59 caused an earlier filed notice of appeal to "`self-destruc[t],' " 459 U.S., at 61, despite the fact that the earlier-filed notice had "vested" the Court of Appeals with "jurisdiction." Were the same principle to apply in the agency/court context, then the reconsideration motion filed on Day 70 would cause the earlier filed petition for review, filed on Day 50, to "self-destruct," leaving nothing for the court of appeals to consolidate with an eventual appeal from an agency denial of a reconsideration motion (on Day 100).
Griggs, however, does not apply in the agency/court context. This Court explicitly rested its decision in Griggs upon the fact that a specific Federal Rule of Appellate Procedure, *412 Rule 4(a)(4), provides for the "self-destruction." That Rule says that upon the filing of, say, a Rule 59 motion to amend a district court judgment, a "notice of appeal filed before the disposition of [e. g., that Rule 59 motion] shall have no effect." By its terms, Rule 4(a)(4) applies only in the court/court context; and, to my knowledge, there is no comparable provision applicable in agency/court contexts such as this one. In the absence of such a provision, Griggs explicitly adds that the "district courts and courts of appeals would both have had the power to modify the same judgment, " 459 U.S., at 60 (emphasis added)as I believe the agency and the Court of Appeals have here.
I recognize that at least one Court of Appeals has adopted an agency/court rule analogous to the "self-destruct" rule set forth in Rule 4(a)(4). Wade v. FCC, 986 F.2d 1433, 1434 (CADC 1993) (per curiam); see also Losh v. Brown, 6 Vet. App. 87, 89 (1993). But see Berroteran-Melendez v. INS, 955 F.2d 1251, 1254 (CA9 1992) (court retains jurisdiction when motion to reopen is filed after the filing of a petition for judicial review); Lozada v. INS, 857 F.2d 10, 12 (CA1 1988) (court retained jurisdiction over petition for review notwithstanding later filed motion to reopen, but held case in abeyance pending agency's decision on the motion). That court's conclusion, however, was based upon a single observation: that "[t]he danger of wasted judicial effort that attends the simultaneous exercise of judicial and agency jurisdiction arises whether a party seeks agency reconsideration before, simultaneous with, or after filing an appeal." Wade, supra, at 1434 (citations omitted) (referring to the danger that the agency's ruling might change the order being appealed, thereby mooting the appeal and wasting any appellate effort expended). While this observation is true enough, it does not justify the "self-destruct" rule, because it fails to take into account other important factors, namely, (a) the principle that jurisdiction, once vested, is generally not divested, and (b) the fact that, in some cases (say, when *413 briefing and argument already have been completed in the court of appeals) judicial economy may actually weigh against stripping the court of jurisdiction. On this last point, it is significant that under the Federal Rules, the motions to revise or reopen court judgments that cause an earlier filed appeal to "self-destruct" must be filed within a few days after the entry of judgment. See, e. g., Fed. Rule Civ. Proc. 4(a)(4) (10 days). The agency rules before us, in contrast, permit a motion for reconsideration (or reopening) well after the entry of the agency's final order. See 8 CFR § 3.8(a) (1994) (no time limit on motion for reconsideration filed with BIA). See also, e. g., 10 CFR § 2.734(a)(1) (1995) (Nuclear Regulatory Commission may consider untimely motion to reopen where "grave issue" raised). This timing difference means that it is less likely in the court/court context than in the agency/court context that "self-destruction" of an earlier filed notice of appeal would interrupt (and therefore waste) a court of appeals review already well underway. Consequently, this Court should not simply assume that the court/court rule applies in the agency/court context.
The majority ultimately says we ought not decide whether the "self-destruct" rule applies in the agency/court context. Ante, at 397, 404. But, the decision cannot be avoided. That is because the majority's basic argumentthat a tolling rule would deprive the consolidation subsection of meaningdepends upon the assumption that the "self-destruct" rule does apply. And, for the reasons stated above, that assumption is not supported by any statutory or rule-based authority.
Because this matter is so complicated, an analogy to the court/court context may help. In that context, in a normal civil case, a losing party has 30 days to file an appeal (60, if the Government is a party). Fed. Rule App. Proc. 4(a)(1). The Rules then distinguish between two kinds of reconsideration motions: those filed within 10 days (including motions for relief from judgment under Federal Rule of Civil Procedure *414 60(b)), which toll the time for appeal, and those filed after 10 days (in the main, other Rule 60(b) motions), which do not toll the time for appeal. See Fed. Rule App. Proc. 4(a)(4). When a party files a motion of the first sort (which I shall call an "immediate" reconsideration motion), a previously filed notice of appeal "self-destructs." Ibid. When a party files a motion of the second sort (which I shall call a "distant" reconsideration motion), a previously filed notice of appeal remains valid. A complex set of rules creates this system, and lawyers normally refer to those rules in order to understand what they are supposed to do. See Fed. Rule App. Proc. 4(a) (and Rules of Civil Procedure cited therein).
Agency reconsideration motions are sometimes like "immediate" court reconsideration motions, filed soon after entry of a final order, but sometimes they are like "distant" reconsideration motions, filed long after entry of a final order. (Petitioner in this case filed his motion 35 days after entry of an order that he had 90 days to appeal.) The problem before us is that we lack precise rules, comparable to the Federal Rules of Appellate and Civil Procedure, that distinguish (for appeal preserving purposes) between the "immediate" and the "distant" reconsideration motion. We therefore must read an immigration statute, silent on these matters, in one of three possible ways: (1) as creating rules that make Federal Rules-type distinctions; (2) in effect, as analogizing an agency reconsideration motion to the "distant" court reconsideration motion (and denying tolling); or (3) in effect, as analogizing an agency reconsideration motion to the "immediate" court reconsideration motion (and permitting tolling).
The first possibility is a matter for the appropriate Rules Committees, not this Court. Those bodies can focus directly upon the interaction of reconsideration motions and appellate time limits; they can consider relevant similarities and differences between agency/court and court/court appeals; and they can consider the relevance of special, immigrationrelated *415 circumstances, such as the fact that the filing of a petition for review from a "final" deportation order automatically stays deportation, INA § 106(a)(3), 8 U.S. C. § 1105a(a)(3) (1988 ed., Supp. V). The second possibility (that adopted by the majority) creates a serious risk of unfair loss of a right to appeal, because it is inconsistent with Locomotive Engineers (thereby multiplying complexity). And, it has no basis in the INA, which generally incorporates the procedures of the Hobbs Act and the text and history of which simply do not purport to make an exception denying tolling. The third possibility, in my view, is the best of the three, for it promotes uniformity in practice among the agencies; it is consistent with the Hobbs Act, whose procedures the INA generally adopts; and it thereby helps to avoid inadvertent or unfair loss of the right to appeal.
The upshot is that Locomotive Engineers, Griggs, the language of the immigration statute before us, the language of the Federal Rules, and various practical considerations together argue for an interpretation of INA § 106(a) that both (1) permits the filing of a motion for reconsideration to toll the time for petitioning for judicial review (when no petition for review has yet been filed), and (2) permits court review that has already "vested" in the court of appeals to continue there (when the petition for review was filed prior to the filing of the motion for reconsideration). This interpretation simply requires us to read the language of the INA as this Court read the Hobbs Act in Locomotive Engineers. It would avoid creating any "Hobson's choice" for the alien, cf. ante, at 398-399, for an alien could both appeal (thereby obtaining an automatic stay of deportation, INA § 106(a)(3), 8 U.S. C. § 1105a(a)(3)), and then also petition for reconsideration. And, it would avoid entrapping the unwary lawyer who did not immediately file a petition for court review, thinking that a reconsideration petition would toll the appeal time limit as it does in other agency/court contexts.
*416 This approach does not undermine Congress' goal of expediting the deportation-order review process. Although the court of appeals might postpone decision of an appeal pending the agency's decision on a later filed motion to reopen or reconsider, it need not do so. If the motion is frivolous, or made for purposes of delay, the INS can call that fact to the court's attention. And, of course, the agency can simply decide the motion quickly. The alien could prevent the court of appeals from acting by not filing an appeal from the original order, but, instead (as here) simply filing a reconsideration motion. That motion would toll the time for taking an appeal. But, the fact that the alien would lose the benefit of the automatic stay would act as a check on aliens filing frivolous reconsideration motions (without filing an appeal) solely for purposes of delay.
The majority, and the parties, compare and contrast the tolling and nontolling rules in various court-efficiency and delay-related aspects. But, on balance, these considerations do not argue strongly for one side or the other. When Congress amended the INA in 1990 (adding, among other things, the consolidation subsection) it did hope to diminish delays. But, the statute explicitly set forth several ways of directly achieving this objective. See, e. g., Immigration Act of 1990, § 545(a), 104 Stat. 5063 (creating INA § 242B(d), 8 U.S. C. § 1252b(d), directing the Attorney General to issue regulations providing for summary dismissal of, and attorney sanctions for, frivolous administrative appeals); § 545(b)(1) (reducing time for petitioning for review from 6 months to 90 days); § 545(d)(1) (directing the Attorney General to issue regulations limiting the number of motions to reopen and to reconsider an alien may file and setting a maximum time period for the filing of such motions); § 545(d)(2) (directing the Attorney General to do the same with respect to the number and timing of administrative appeals). Significantly, the statute did not list an antitolling rule as one of those ways. At the same time, Congress enacted certain *417 measures apparently designed to make the deportationorder review process more efficient. See, e. g., § 545(d)(2) (asking the Attorney General to issue regulations specifying that the administrative appeal of a deportation order must be consolidated with the appeal of all motions to reopen or reconsider that order; providing for the filing of appellate and reply briefs; and identifying the items to be included in the notice of administrative appeal). In light of these last mentioned provisions, the consolidation subsection would seem consistent with Congress' purposes in 1990 even without an implicit no-tolling rule.
Indeed, the Attorney General has construed one of these last mentioned 1990 amendments as authorizing, in a somewhat analogous situation, a tolling provision roughly similar to that in Locomotive Engineers. In § 545(d)(2) of the 1990 Act, Congress asked the Attorney General to issue regulations with respect to "the consolidation of motions to reopen or to reconsider [an Immigration Judge's deportation order] with the appeal [to the BIA] of [that] order." 104 Stat. 5066 (emphasis added). In response, the Attorney General has proposed a regulation saying, among other things, that "[a] motion to reopen a decision rendered by an Immigration Judge . . . that is pending when an appeal [to the BIA] is filed. . . shall be deemed a motion to remand [the administrative appeal] for further proceedings before the Immigration Judge . . . . Such motion . . . shall be consolidated with, and considered by the Board [later] in connection with, the appeal to the Board . . . ." 59 Fed. Reg. 29386, 29388 (1994) (proposed new 8 CFR § 3.2(c)(4)). See also 59 Fed. Reg., at 29387 (proposed new § 3.2(b) (parallel provision for motions to reconsider)). This approach, which is comparable to the Locomotive Engineers tolling rule, would govern the interaction of administrative appeals and motions to reopen the decision of an Immigration Judge. It seems logical that Congress might want the same rule to govern the analogous situation concerning the interaction of petitions for judicial *418 review and motions to reconsider or reopen a decision of the BIA.
One final point. The INS argues that the Court should defer to one of its regulations, 8 CFR § 243.1 (1994), which, it says, interprets INA § 106(a) as eliminating the tolling rule. See, e. g., Shalala v. Guernsey Memorial Hospital, ante, at 94-95; Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). The regulation in question, however, says nothing about tolling. To the contrary, it simply defines "final order of deportation," using language very similar to the language this Court, in Locomotive Engineers, interpreted as embodying the tolling rule. Compare the regulation here at issue, 8 CFR § 243.1 (1994) ("[A]n order of deportation . . . shall become final upon [the BIA's] dismissal of an appeal" from the order of a single immigration judge), with the language at issue in Locomotive Engineers, 49 U.S. C. § 10327(i) ("[A]n action of the [Interstate Commerce] Commission . . . is final on the date on which it is served"). A lawyer reading the regulation simply would not realize that the INS intended to create an unmentioned exception to a critically important technical procedure. Moreover, the INS itself has apparently interpreted the regulation somewhat differently at different times. Compare Brief for Respondent 13-17 (arguing that the regulation embodies a no-tolling rule) with Chu v. INS, 875 F.2d 777, 779 (CA9 1989) (in which INS argued that a reconsideration motion makes the initial order nonfinal, and thereby implies tolling). See, e. g., Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 514-515 (1994) (inconsistent interpretation entitled to "considerably less deference" than consistently held agency view). For these reasons, I do not accept the INS' claim that its silent regulation creates a "no tolling" rule.
I would reverse the judgment of the Court of Appeals | The majority reads 106(a) of the Immigration and Nationality Act (INA), 8 U.S. C. 1105a(a) ( ed., Supp. V), as creating an exception to the ordinary legal rules that govern the interaction of (1) motions for agency reconsideration with (2) time limits for appeals. In my view, the statute does not create such an exception. And, reading it to do so risks unnecessary complexity in the technical, but important, matter of how one petitions a court for judicial review of an adverse agency decision. For these reasons, I dissent. This Court, in considered the interaction between reconsideration motions and appeal time limits when one wants to petition a court of appeals to review an adverse of an administrative agency (which I shall call an "agency/court" appeal). The Court held that this interaction resembled that which takes place between (1) an appeal from a district court to a court of appeals (which I shall call a "court/court" appeal) and (2) certain motions for district court reconsideration, namely, those filed soon after entry of the district court See Fed. Rule App. Proc. 4(a)(4). The relevant statute (commonly called the Hobbs Act) said that a petition for review of a final agency order may be filed in the court *407 of appeals "within 60 days after its entry." 28 U.S. C. 2344. The Court concluded, on the basis of precedent, that the filing of a proper petition for reconsideration, "within the period allotted for judicial review of the original order tolls the period for judicial review of the original order." That order can "be appealed to the courts. after the petition for reconsideration is denied." See In my view, we should interpret the INA as calling for tolling, just as we interpreted the Hobbs Act in Locomotive Engineers. For one thing, the appeals time limit language in the INA is similar to that in the Hobbs Act. Like the Hobbs Act, the INA does not mention tolling explicitly; it simply says that "a petition for review may be filed not later than 90 days after the date of the issuance of the final deportation order." INA 106(a)(1), 8 U.S. C. 1105a(a)(1) ( ed., Supp. V). More importantly, the INA explicitly states that the "procedure prescribed by, and all the provisions of [the Hobbs Act, 28 U.S. C. 2341 et seq., ] shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation." INA 106(a), 8 U.S. C. 1105a(a). This statutory phrase is not conclusive because it is followed by several exceptions, one of which is the subsection setting the "[t]ime for filing [a] petition" for review. INA 106(a)(1), 8 U.S. C. 1105a(a)(1). But, the context suggests that the reason for calling the latter clause an exception lies in the number of days permitted for filing 90 in the INA, as opposed to 60 in the Hobbs Act. Nothing in the language of 106(a) (which was amended three years after Locomotive Engineers, see Immigration Act of 1990, 545(b), ) suggests any further exception in respect to tolling. Finally, interpreting the INA and the Hobbs Act consistently makes it easier for the bar to understand, and to follow, these highly technical rules. With consistent rules, a nonimmigration-specialist lawyer (say, a lawyer used to working *408 in the ordinary agency/court context) who seeks reconsideration of a Board of Immigration Appeals (BIA) decision is less likely to lose his client's right to appeal simply through inadvertence. The majority reaches a different conclusion because it believes that one subsection of the INA, 106(a)(6), is inconsistent with the ordinary Locomotive Engineers tolling rule. That subsection says that "whenever a petitioner seeks [(1)] review of [a final deportation] order any [(2)] review sought with respect to a motion to reopen or reconsider such an order shall be consolidated with the review of the order." 8 U.S. C. 1105a(a)(6) ( ed., Supp. V). This "consolidation" subsection, however, says nothing about tolling. Indeed, it does not address, even in a general way, the timing of petitions for judicial review; it just says what must happen when two reviews make it separately to the court of appeals and are on the court's docket at the same time (i. e., they must be consolidated). And, the legislative history is likewise silent on the matter. See, e. g., H. R. Conf. Rep. No. 101-955, pp. 132-133 (1990). Given that 106(a)(6) was enacted only three years after Locomotive Engineers, it seems unlikely that Congress consciously created a significantly different approach to the reviewdeadline/reconsideration-petition problem (with the consequent risk of confusing lawyers) in so indirect a manner. Nevertheless, the majority believes this subsection is inconsistent with the ordinary Locomotive Engineers tolling rule because application of the ordinary tolling rule would normally lead an alien to appeal both (1) the original deportation order and (2) a denial of agency reconsideration, in a single petition, after the denial takes place. Thus, in the majority's view, one could never find (1) a petition to review an original deportation order and (2) a petition to review a denial of a motion to reconsider that order, properly together *409 in the court of appeals at the same time. And, for that reason, there would be nothing to "consolidate" under the statute. An opposite rule (one which denies tolling) would, in the majority's view, sometimes produce (simultaneously) both (1) an initial appeal from the original order and (2) an appeal from a denial of reconsideration (if the reconsideration motion were decided, and the second appeal taken, before the court could decide the initial appeal). The "notolling" rule would therefore sometimes produce two appeals, ready for consolidation. The majority concludes that it must infer this "no-tolling" rule in order to give the "consolidation" subsection some work to do and thereby make it legally meaningful. I do not believe it necessary, however, to create a special exception from the ordinary Locomotive Engineers tolling rule in order to make the "consolidation" subsection meaningful, for even under that ordinary tolling rule, the "consolidation" subsection will have work to do. Consider the following case: The BIA enters a final deportation order on Day Zero. The alien files a timely petition for review in a court of appeals on Day 50. Circumstances suddenly changesay, in the alien's home countryand on Day 70 the alien then files a motion to reopen with the agency. (The majority says such a filing "must be" a "rare" happening, ante, at 404, but I do not see why. New circumstances justifying reopening or reconsideration might arise at any time. Indeed, this situation must arise with some frequency, since INS regulations expressly recognize that a motion to reopen or reconsider may be filed after judicial review has been sought. See, e. g., 8 CFR 3.8(a)) The agency denies the reconsideration motion on Day 100. The alien then appeals that denial on Day 110. In this case, the court of appeals would have before it two appeals: the appeal filed on Day 50 and the appeal filed on *. The "consolidation" subsection tells the court of appeals to consolidate those two appeals and decide them together.) In this example, the subsection would have meaning as an "exception" to the Hobbs Act, cf. ante, at 404-405, since nothing in the Hobbs Act requires the consolidation of court reviews. The majority understands this counterexample, but rejects it, for fear of creating both a conceptual and a precedential problem. Neither of those perceived problems, however, is significant. The conceptual problem the majority fears arises out of the fact that, under the ordinary tolling rule, the filing of a petition for reconsideration is deemed to render an otherwise "final" initial (but not-yet-appealed) order "nonfinal" for purposes of court review. Hence, one may not appeal the merits of that initial order until the district court or agency finally decides the reconsideration petition. The majority believes that the reconsideration petition in the counterexample above (a petition filed after an appeal is taken from the initial order) renders "nonfinal," and hence not properly appealable, the initial order, removing the initial appeal from the court of appeals, and thereby leaving nothing to consolidate. The answer to this conceptual argument lies in the "general principle" that "jurisdiction, once vested, is not divested, although a state of things should arrive in which original jurisdiction could not be exercised." United (No. 15,6) (CC Va. 1818) (Marshall, C. J., Circuit Justice), quoted in Republic Nat. Bank of The first appeal, as of Day 50, has reached the court of appeals. Thus, conceptually speaking, one should not consider a later filed motion for reconsideration as having "divested" the court of jurisdiction. And, practically speaking, it makes sense to leave the appeal there, permitting the court of appeals to decide it, or to delay it, as circumstances dictate (say, depending upon the extent to which effort and resources already have been expended in prosecuting and deciding the appeal). After all, we have long recognized that courts have inherent power to stay proceedings and "to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." ; cf. 28 U.S. C. 1367(c)(3) ( ed., Supp. V) (providing that district court may, but need not, decline to exercise supplemental jurisdiction over a claim when it has dismissed all claims over which it has original jurisdiction). The precedential problem, in the majority's view, arises out of (1) a court/court case in which this Court held that the filing of a reconsideration motion under Federal Rule of Civil Procedure 59 caused an earlier filed notice of appeal to "`self-destruc[t],' " despite the fact that the earlier-filed notice had "vested" the Court of Appeals with "jurisdiction." Were the same principle to apply in the agency/court context, then the reconsideration motion filed on Day 70 would cause the earlier filed petition for review, filed on Day 50, to "self-destruct," leaving nothing for the court of appeals to consolidate with an eventual appeal from an agency denial of a reconsideration motion (on Day 100). Griggs, however, does not apply in the agency/court context. This Court explicitly rested its decision in Griggs upon the fact that a specific Federal Rule of Appellate Procedure, *4 Rule 4(a)(4), provides for the "self-destruction." That Rule says that upon the filing of, say, a Rule 59 motion to amend a district court a "notice of appeal filed before the disposition of [e. g., that Rule 59 motion] shall have no effect." By its terms, Rule 4(a)(4) applies only in the court/court context; and, to my knowledge, there is no comparable provision applicable in agency/court contexts such as this one. In the absence of such a provision, Griggs explicitly adds that the "district courts and courts of appeals would both have had the power to modify the same " as I believe the agency and the Court of Appeals have here. I recognize that at least one Court of Appeals has adopted an agency/court rule analogous to the "self-destruct" rule set forth in Rule 4(a)(4). ; see But see 1 ; That court's conclusion, however, was based upon a single observation: that "[t]he danger of wasted judicial effort that attends the simultaneous exercise of judicial and agency jurisdiction arises whether a party seeks agency reconsideration before, simultaneous with, or after filing an appeal." at (referring to the danger that the agency's ruling might change the order being appealed, thereby mooting the appeal and wasting any appellate effort expended). While this observation is true enough, it does not justify the "self-destruct" rule, because it fails to take into account other important factors, namely, (a) the principle that jurisdiction, once vested, is generally not divested, and (b) the fact that, in some cases (say, when *413 briefing and argument already have been completed in the court of appeals) judicial economy may actually weigh against stripping the court of jurisdiction. On this last point, it is significant that under the Federal Rules, the motions to revise or reopen court s that cause an earlier filed appeal to "self-destruct" must be filed within a few days after the entry of See, e. g., Fed. Rule Civ. Proc. 4(a)(4) (10 days). The agency rules before us, in contrast, permit a motion for reconsideration (or reopening) well after the entry of the agency's final order. See 8 CFR 3.8(a) See e. g., 10 CFR 2.734(a)(1) (1995) This timing difference means that it is less likely in the court/court context than in the agency/court context that "self-destruction" of an earlier filed notice of appeal would interrupt (and therefore waste) a court of appeals review already well underway. Consequently, this Court should not simply assume that the court/court rule applies in the agency/court context. The majority ultimately says we ought not decide whether the "self-destruct" rule applies in the agency/court context. Ante, at 397, 404. But, the decision cannot be avoided. That is because the majority's basic argumentthat a tolling rule would deprive the consolidation subsection of meaningdepends upon the assumption that the "self-destruct" rule does apply. And, for the reasons stated above, that assumption is not supported by any statutory or rule-based authority. Because this matter is so complicated, an analogy to the court/court context may help. In that context, in a normal civil case, a losing party has 30 days to file an appeal (60, if the Government is a party). Fed. Rule App. Proc. 4(a)(1). The Rules then distinguish between two kinds of reconsideration motions: those filed within 10 days (including motions for relief from under Federal Rule of Civil Procedure *414 60(b)), which toll the time for appeal, and those filed after 10 days (in the main, other Rule 60(b) motions), which do not toll the time for appeal. See Fed. Rule App. Proc. 4(a)(4). When a party files a motion of the first sort (which I shall call an "immediate" reconsideration motion), a previously filed notice of appeal "self-destructs." When a party files a motion of the second sort (which I shall call a "distant" reconsideration motion), a previously filed notice of appeal remains valid. A complex set of rules creates this system, and lawyers normally refer to those rules in order to understand what they are supposed to do. See Fed. Rule App. Proc. 4(a) (and Rules of Civil Procedure cited therein). Agency reconsideration motions are sometimes like "immediate" court reconsideration motions, filed soon after entry of a final order, but sometimes they are like "distant" reconsideration motions, filed long after entry of a final order. (Petitioner in this case filed his motion 35 days after entry of an order that he had 90 days to appeal.) The problem before us is that we lack precise rules, comparable to the Federal Rules of Appellate and Civil Procedure, that distinguish (for appeal preserving purposes) between the "immediate" and the "distant" reconsideration motion. We therefore must read an immigration statute, silent on these matters, in one of three possible ways: (1) as creating rules that make Federal Rules-type distinctions; (2) in effect, as analogizing an agency reconsideration motion to the "distant" court reconsideration motion (and denying tolling); or (3) in effect, as analogizing an agency reconsideration motion to the "immediate" court reconsideration motion (and permitting tolling). The first possibility is a matter for the appropriate Rules Committees, not this Court. Those bodies can focus directly upon the interaction of reconsideration motions and appellate time limits; they can consider relevant similarities and differences between agency/court and court/court appeals; and they can consider the relevance of special, immigrationrelated *415 circumstances, such as the fact that the filing of a petition for review from a "final" deportation order automatically stays deportation, INA 106(a)(3), 8 U.S. C. 1105a(a)(3) ( ed., Supp. V). The second possibility (that adopted by the majority) creates a serious risk of unfair loss of a right to appeal, because it is inconsistent with Locomotive Engineers (thereby multiplying complexity). And, it has no basis in the INA, which generally incorporates the procedures of the Hobbs Act and the text and history of which simply do not purport to make an exception denying tolling. The third possibility, in my view, is the best of the three, for it promotes uniformity in practice among the agencies; it is consistent with the Hobbs Act, whose procedures the INA generally adopts; and it thereby helps to avoid inadvertent or unfair loss of the right to appeal. The upshot is that Locomotive Engineers, Griggs, the language of the immigration statute before us, the language of the Federal Rules, and various practical considerations together argue for an interpretation of INA 106(a) that both (1) permits the filing of a motion for reconsideration to toll the time for petitioning for judicial review (when no petition for review has yet been filed), and (2) permits court review that has already "vested" in the court of appeals to continue there (when the petition for review was filed prior to the filing of the motion for reconsideration). This interpretation simply requires us to read the language of the INA as this Court read the Hobbs Act in Locomotive Engineers. It would avoid creating any "Hobson's choice" for the alien, cf. ante, at 398-399, for an alien could both appeal (thereby obtaining an automatic stay of deportation, INA 106(a)(3), 8 U.S. C. 1105a(a)(3)), and then petition for reconsideration. And, it would avoid entrapping the unwary lawyer who did not immediately file a petition for court review, thinking that a reconsideration petition would toll the appeal time limit as it does in other agency/court contexts. *416 This approach does not undermine Congress' goal of expediting the deportation-order review process. Although the court of appeals might postpone decision of an appeal pending the agency's decision on a later filed motion to reopen or reconsider, it need not do so. If the motion is frivolous, or made for purposes of delay, the INS can call that fact to the court's attention. And, of course, the agency can simply decide the motion quickly. The alien could prevent the court of appeals from acting by not filing an appeal from the original order, but, instead (as here) simply filing a reconsideration motion. That motion would toll the time for taking an appeal. But, the fact that the alien would lose the benefit of the automatic stay would act as a check on aliens filing frivolous reconsideration motions (without filing an appeal) solely for purposes of delay. The majority, and the parties, compare and contrast the tolling and nontolling rules in various court-efficiency and delay-related aspects. But, on balance, these considerations do not argue strongly for one side or the other. When Congress amended the INA in 1990 (adding, among other things, the consolidation subsection) it did hope to diminish delays. But, the statute explicitly set forth several ways of directly achieving this objective. See, e. g., Immigration Act of 1990, 545(a), (creating INA 242B(d), 8 U.S. C. 52b(d), directing the Attorney General to issue regulations providing for summary dismissal of, and attorney sanctions for, frivolous administrative appeals); 545(b)(1) (reducing time for petitioning for review from 6 months to 90 days); 545(d)(1) (directing the Attorney General to issue regulations limiting the number of motions to reopen and to reconsider an alien may file and setting a maximum time period for the filing of such motions); 545(d)(2) (directing the Attorney General to do the same with respect to the number and timing of administrative appeals). Significantly, the statute did not list an antitolling rule as one of those ways. At the same time, Congress enacted certain *417 measures apparently designed to make the deportationorder review process more efficient. See, e. g., 545(d)(2) (asking the Attorney General to issue regulations specifying that the administrative appeal of a deportation order must be consolidated with the appeal of all motions to reopen or reconsider that order; providing for the filing of appellate and reply briefs; and identifying the items to be included in the notice of administrative appeal). In light of these last mentioned provisions, the consolidation subsection would seem consistent with Congress' purposes in 1990 even without an implicit no-tolling rule. Indeed, the Attorney General has construed one of these last mentioned 1990 amendments as authorizing, in a somewhat analogous situation, a tolling provision roughly similar to that in Locomotive Engineers. In 545(d)(2) of the 1990 Act, Congress asked the Attorney General to issue regulations with respect to "the consolidation of motions to reopen or to reconsider [an Immigration Judge's deportation order] with the appeal [to the BIA] of [that] order." In response, the Attorney General has proposed a regulation saying, among other things, that "[a] motion to reopen a decision rendered by an Immigration Judge that is pending when an appeal [to the BIA] is filed. shall be deemed a motion to remand [the administrative appeal] for further proceedings before the Immigration Judge Such motion shall be consolidated with, and considered by the Board [later] in connection with, the appeal to the Board" 29388 (proposed new 8 CFR 3.2(c)(4)). See (proposed new 3.2(b) (parallel provision for motions to reconsider)). This approach, which is comparable to the Locomotive Engineers tolling rule, would govern the interaction of administrative appeals and motions to reopen the decision of an Immigration Judge. It seems logical that Congress might want the same rule to govern the analogous situation concerning the interaction of petitions for judicial *418 review and motions to reconsider or reopen a decision of the BIA. One final point. The INS argues that the Court should defer to one of its regulations, 8 CFR 243.1 which, it says, interprets INA 106(a) as eliminating the tolling rule. See, e. g., Shalala v. Guernsey Memorial Hospital, ante, at 94-95; Chevron U. S. A. The regulation in question, however, says nothing about tolling. To the contrary, it simply defines "final order of deportation," using language very similar to the language this Court, in Locomotive Engineers, interpreted as embodying the tolling rule. Compare the regulation here at issue, 8 CFR 243.1 with the language at issue in Locomotive Engineers, 49 U.S. C. 10327(i) ("[A]n action of the [Interstate Commerce] Commission is final on the date on which it is served"). A lawyer reading the regulation simply would not realize that the INS intended to create an unmentioned exception to a critically important technical procedure. Moreover, the INS itself has apparently interpreted the regulation somewhat differently at different times. Compare Brief for Respondent 13-17 (arguing that the regulation embodies a no-tolling rule) with (CA9 19) See, e. g., Thomas Jefferson 5 U.S. 504, For these reasons, I do not accept the INS' claim that its silent regulation creates a "no tolling" rule. I would reverse the of the Court of Appeals |
Justice Scalia | majority | false | Whren v. United States | 1996-05-15T00:00:00 | null | https://www.courtlistener.com/opinion/118036/whren-v-united-states/ | https://www.courtlistener.com/api/rest/v3/clusters/118036/ | 1,996 | 1995-062 | 1 | 9 | 0 | In this case we decide whether the temporary detention of a motorist who the police have probable cause to believe has committed a civil traffic violation is inconsistent with the Fourth Amendment's prohibition against unreasonable seizures unless a reasonable officer would have been motivated to stop the car by a desire to enforce the traffic laws.
I
On the evening of June 10, 1993, plainclothes vice-squad officers of the District of Columbia Metropolitan Police Department were patrolling a "high drug area" of the city in an unmarked car. Their suspicions were aroused when they passed a dark Pathfinder truck with temporary license plates and youthful occupants waiting at a stop sign, the driver looking down into the lap of the passenger at his right. The truck remained stopped at the intersection for what seemed an unusually long timemore than 20 seconds. When the police car executed a U-turn in order to head back toward the truck, the Pathfinder turned suddenly to its right, without signaling, and sped off at an "unreasonable" speed. The policemen followed, and in a short while overtook the Pathfinder when it stopped behind other traffic at a red light. They pulled up alongside, and Officer Ephraim Soto stepped out and approached the driver's door, identifying himself as a police officer and directing the driver, petitioner Brown, to put the vehicle in park. When Soto drew up to the driver's *809 window, he immediately observed two large plastic bags of what appeared to be crack cocaine in petitioner Whren's hands. Petitioners were arrested, and quantities of several types of illegal drugs were retrieved from the vehicle.
Petitioners were charged in a four-count indictment with violating various federal drug laws, including 21 U.S. C. §§ 844(a) and 860(a). At a pretrial suppression hearing, they challenged the legality of the stop and the resulting seizure of the drugs. They argued that the stop had not been justified by probable cause to believe, or even reasonable suspicion, that petitioners were engaged in illegal drug-dealing activity; and that Officer Soto's asserted ground for approaching the vehicleto give the driver a warning concerning traffic violationswas pretextual. The District Court denied the suppression motion, concluding that "the facts of the stop were not controverted," and "[t]here was nothing to really demonstrate that the actions of the officers were contrary to a normal traffic stop." App. 5.
Petitioners were convicted of the counts at issue here. The Court of Appeals affirmed the convictions, holding with respect to the suppression issue that, "regardless of whether a police officer subjectively believes that the occupants of an automobile may be engaging in some other illegal behavior, a traffic stop is permissible as long as a reasonable officer in the same circumstances could have stopped the car for the suspected traffic violation." 53 F.3d 371, 374-375 (CADC 1995). We granted certiorari. 516 U.S. 1036 (1996).
II
The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a "seizure" of "persons" within the *810 meaning of this provision. See Delaware v. Prouse, 440 U.S. 648, 653 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 556 (1976); United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). An automobile stop is thus subject to the constitutional imperative that it not be "unreasonable" under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. See Prouse, supra, at 659; Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977) (per curiam).
Petitioners accept that Officer Soto had probable cause to believe that various provisions of the District of Columbia traffic code had been violated. See 18 Dall. C. Mun. Regs. §§ 2213.4 (1995) ("An operator shall . . . give full time and attention to the operation of the vehicle"); 2204.3 ("No person shall turn any vehicle . . . without giving an appropriate signal"); 2200.3 ("No person shall drive a vehicle . . . at a speed greater than is reasonable and prudent under the conditions"). They argue, however, that "in the unique context of civil traffic regulations" probable cause is not enough. Since, they contend, the use of automobiles is so heavily and minutely regulated that total compliance with traffic and safety rules is nearly impossible, a police officer will almost invariably be able to catch any given motorist in a technical violation. This creates the temptation to use traffic stops as a means of investigating other law violations, as to which no probable cause or even articulable suspicion exists. Petitioners, who are both black, further contend that police officers might decide which motorists to stop based on decidedly impermissible factors, such as the race of the car's occupants. To avoid this danger, they say, the Fourth Amendment test for traffic stops should be, not the normal one (applied by the Court of Appeals) of whether probable cause existed to justify the stop; but rather, whether a police officer, acting reasonably, would have made the stop for the reason given.
*811 A
Petitioners contend that the standard they propose is consistent with our past cases' disapproval of police attempts to use valid bases of action against citizens as pretexts for pursuing other investigatory agendas. We are reminded that in Florida v. Wells, 495 U.S. 1, 4 (1990), we stated that "an inventory search[1] must not be a ruse for a general rummaging in order to discover incriminating evidence"; that in Colorado v. Bertine, 479 U.S. 367, 372 (1987), in approving an inventory search, we apparently thought it significant that there had been "no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation"; and that in New York v. Burger, 482 U.S. 691, 716-717, n. 27 (1987), we observed, in upholding the constitutionality of a warrantless administrative inspection,[2] that the search did not appear to be "a `pretext' for obtaining evidence of . . . violation of . . . penal laws." But only an undiscerning reader would regard these cases as endorsing the principle that ulterior motives can invalidate police conduct that is justifiable on the basis of probable cause to believe that a violation of law has occurred. In each case we were addressing the validity of a search conducted in the absence of probable cause. Our quoted statements simply explain that the exemption from the need for probable cause (and warrant), which is accorded to searches made for the purpose of inventory or administrative *812 regulation, is not accorded to searches that are not made for those purposes. See Bertine, supra, at 371-372; Burger, supra, at 702-703.
Petitioners also rely upon Colorado v. Bannister, 449 U.S. 1 (1980) (per curiam), a case which, like this one, involved a traffic stop as the prelude to a plain-view sighting and arrest on charges wholly unrelated to the basis for the stop. Petitioners point to our statement that "[t]here was no evidence whatsoever that the officer's presence to issue a traffic citation was a pretext to confirm any other previous suspicion about the occupants" of the car. Id., at 4, n. 4. That dictum at most demonstrates that the Court in Bannister found no need to inquire into the question now under discussion; not that it was certain of the answer. And it may demonstrate even less than that: If by "pretext" the Court meant that the officer really had not seen the car speeding, the statement would mean only that there was no reason to doubt probable cause for the traffic stop.
It would, moreover, be anomalous, to say the least, to treat a statement in a footnote in the per curiam Bannister opinion as indicating a reversal of our prior law. Petitioners' difficulty is not simply a lack of affirmative support for their position. Not only have we never held, outside the context of inventory search or administrative inspection (discussed above), that an officer's motive invalidates objectively justifiable behavior under the Fourth Amendment; but we have repeatedly held and asserted the contrary. In United States v. Villamonte-Marquez, 462 U.S. 579, 584, n. 3 (1983), we held that an otherwise valid warrantless boarding of a vessel by customs officials was not rendered invalid "because the customs officers were accompanied by a Louisiana state policeman, and were following an informant's tip that a vessel in the ship channel was thought to be carrying marihuana." We flatly dismissed the idea that an ulterior motive might serve to strip the agents of their legal justification. In United States v. Robinson, 414 U.S. 218 (1973), we held that *813 a traffic-violation arrest (of the sort here) would not be rendered invalid by the fact that it was "a mere pretext for a narcotics search," id., at 221, n. 1; and that a lawful postarrest search of the person would not be rendered invalid by the fact that it was not motivated by the officer-safety concern that justifies such searches, see id., at 236. See also Gustafson v. Florida, 414 U.S. 260, 266 (1973). And in Scott v. United States, 436 U.S. 128, 138 (1978), in rejecting the contention that wiretap evidence was subject to exclusion because the agents conducting the tap had failed to make any effort to comply with the statutory requirement that unauthorized acquisitions be minimized, we said that "[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional." We described Robinson as having established that "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." 436 U.S., at 136, 138.
We think these cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved. We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.
B
Recognizing that we have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers, petitioners disavow any intention to make the individual officer's subjective good faith the touchstone of "reasonableness." They insist that the standard *814 they have put forwardwhether the officer's conduct deviated materially from usual police practices, so that a reasonable officer in the same circumstances would not have made the stop for the reasons givenis an "objective" one.
But although framed in empirical terms, this approach is plainly and indisputably driven by subjective considerations. Its whole purpose is to prevent the police from doing under the guise of enforcing the traffic code what they would like to do for different reasons. Petitioners' proposed standard may not use the word "pretext," but it is designed to combat nothing other than the perceived "danger" of the pretextual stop, albeit only indirectly and over the run of cases. Instead of asking whether the individual officer had the proper state of mind, the petitioners would have us ask, in effect, whether (based on general police practices) it is plausible to believe that the officer had the proper state of mind.
Why one would frame a test designed to combat pretext in such fashion that the court cannot take into account actual and admitted pretext is a curiosity that can only be explained by the fact that our cases have foreclosed the more sensible option. If those cases were based only upon the evidentiary difficulty of establishing subjective intent, petitioners' attempt to root out subjective vices through objective means might make sense. But they were not based only upon that, or indeed even principally upon that. Their principal basiswhich applies equally to attempts to reach subjective intent through ostensibly objective meansis simply that the Fourth Amendment's concern with "reasonableness" allows certain actions to be taken in certain circumstances, whatever the subjective intent. See, e. g., Robinson, supra, at 236 ("Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that [the officer] did not indicate any subjective fear of the [arrestee] or that he did not himself suspect that [the arrestee] was armed") (footnotes omitted); Gustafson, supra, at 266 (same). But even if our concern had been only an evidentiary one, *815 petitioners' proposal would by no means assuage it. Indeed, it seems to us somewhat easier to figure out the intent of an individual officer than to plumb the collective consciousness of law enforcement in order to determine whether a "reasonable officer" would have been moved to act upon the traffic violation. While police manuals and standard procedures may sometimes provide objective assistance, ordinarily one would be reduced to speculating about the hypothetical reaction of a hypothetical constablean exercise that might be called virtual subjectivity.
Moreover, police enforcement practices, even if they could be practicably assessed by a judge, vary from place to place and from time to time. We cannot accept that the search and seizure protections of the Fourth Amendment are so variable, cf. Gustafson, supra, at 265; United States v. Caceres, 440 U.S. 741, 755-756 (1979), and can be made to turn upon such trivialities. The difficulty is illustrated by petitioners' arguments in this case. Their claim that a reasonable officer would not have made this stop is based largely on District of Columbia police regulations which permit plainclothes officers in unmarked vehicles to enforce traffic laws "only in the case of a violation that is so grave as to pose an immediate threat to the safety of others." Metropolitan Police Department, Washington, D. C., General Order 303.1, pt. 1, Objectives and Policies (A)(2)(4) (Apr. 30, 1992), reprinted as Addendum to Brief for Petitioners. This basis of invalidation would not apply in jurisdictions that had a different practice. And it would not have applied even in the District of Columbia, if Officer Soto had been wearing a uniform or patrolling in a marked police cruiser.
Petitioners argue that our cases support insistence upon police adherence to standard practices as an objective means of rooting out pretext. They cite no holding to that effect, and dicta in only two cases. In Abel v. United States, 362 U.S. 217 (1960), the petitioner had been arrested by the Immigration and Naturalization Service (INS), on the basis of *816 an administrative warrant that, he claimed, had been issued on pretextual grounds in order to enable the Federal Bureau of Investigation (FBI) to search his room after his arrest. We regarded this as an allegation of "serious misconduct," but rejected Abel's claims on the ground that "[a] finding of bad faith is . . . not open to us on th[e] record" in light of the findings below, including the finding that "`the proceedings taken by the [INS] differed in no respect from what would have been done in the case of an individual concerning whom [there was no pending FBI investigation],' " id., at 226-227. But it is a long leap from the proposition that following regular procedures is some evidence of lack of pretext to the proposition that failure to follow regular procedures proves (or is an operational substitute for) pretext. Abel, moreover, did not involve the assertion that pretext could invalidate a search or seizure for which there was probable causeand even what it said about pretext in other contexts is plainly inconsistent with the views we later stated in Robinson, Gustafson, Scott, and Villamonte-Marquez. In the other case claimed to contain supportive dicta, United States v. Robinson, 414 U.S. 218 (1973), in approving a search incident to an arrest for driving without a license, we noted that the arrest was "not a departure from established police department practice." Id., at 221, n. 1. That was followed, however, by the statement that "[w]e leave for another day questions which would arise on facts different from these." Ibid. This is not even a dictum that purports to provide an answer, but merely one that leaves the question open.
III
In what would appear to be an elaboration on the "reasonable officer" test, petitioners argue that the balancing inherent in any Fourth Amendment inquiry requires us to weigh the governmental and individual interests implicated in a traffic stop such as we have here. That balancing, petitioners claim, does not support investigation of minor traffic infractions *817 by plainclothes police in unmarked vehicles; such investigation only minimally advances the government's interest in traffic safety, and may indeed retard it by producing motorist confusion and alarma view said to be supported by the Metropolitan Police Department's own regulations generally prohibiting this practice. And as for the Fourth Amendment interests of the individuals concerned, petitioners point out that our cases acknowledge that even ordinary traffic stops entail "a possibly unsettling show of authority"; that they at best "interfere with freedom of movement, are inconvenient, and consume time" and at worst "may create substantial anxiety," Prouse, 440 U. S., at 657. That anxiety is likely to be even more pronounced when the stop is conducted by plainclothes officers in unmarked cars.
It is of course true that in principle every Fourth Amendment case, since it turns upon a "reasonableness" determination, involves a balancing of all relevant factors. With rare exceptions not applicable here, however, the result of that balancing is not in doubt where the search or seizure is based upon probable cause. That is why petitioners must rely upon cases like Prouse to provide examples of actual "balancing" analysis. There, the police action in question was a random traffic stop for the purpose of checking a motorist's license and vehicle registration, a practice thatlike the practices at issue in the inventory search and administrative inspection cases upon which petitioners rely in making their "pretext" claiminvolves police intrusion without the probable cause that is its traditional justification. Our opinion in Prouse expressly distinguished the case from a stop based on precisely what is at issue here: "probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations." Id., at 661. It noted approvingly that "[t]he foremost method of enforcing traffic and vehicle safety regulations . . . is acting upon observed violations," id., at 659, which afford the "`quantum of individualized suspicion' " necessary to ensure that police *818 discretion is sufficiently constrained, id., at 654-655 (quoting United States v. Martinez-Fuerte, 428 U. S., at 560). What is true of Prouse is also true of other cases that engaged in detailed "balancing" to decide the constitutionality of automobile stops, such as Martinez-Fuerte, which upheld checkpoint stops, see 428 U.S., at 556-562, and Brignoni-Ponce, which disallowed so-called "roving patrol" stops, see 422 U.S., at 882-884: The detailed "balancing" analysis was necessary because they involved seizures without probable cause.
Where probable cause has existed, the only cases in which we have found it necessary actually to perform the "balancing" analysis involved searches or seizures conducted in an extraordinary manner, unusually harmful to an individual's privacy or even physical interestssuch as, for example, seizure by means of deadly force, see Tennessee v. Garner, 471 U.S. 1 (1985), unannounced entry into a home, see Wilson v. Arkansas, 514 U.S. 927 (1995), entry into a home without a warrant, see Welsh v. Wisconsin, 466 U.S. 740 (1984), or physical penetration of the body, see Winston v. Lee, 470 U.S. 753 (1985). The making of a traffic stop out of uniform does not remotely qualify as such an extreme practice, and so is governed by the usual rule that probable cause to believe the law has been broken "outbalances" private interest in avoiding police contact.
Petitioners urge as an extraordinary factor in this case that the "multitude of applicable traffic and equipment regulations" is so large and so difficult to obey perfectly that virtually everyone is guilty of violation, permitting the police to single out almost whomever they wish for a stop. But we are aware of no principle that would allow us to decide at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the ordinary measure of the lawfulness of enforcement. And even if we could identify such exorbitant codes, we do not know by what standard (or what right) we would decide, as *819 petitioners would have us do, which particular provisions are sufficiently important to merit enforcement.
For the run-of-the-mine case, which this surely is, we think there is no realistic alternative to the traditional commonlaw rule that probable cause justifies a search and seizure.
* * *
Here the District Court found that the officers had probable cause to believe that petitioners had violated the traffic code. That rendered the stop reasonable under the Fourth Amendment, the evidence thereby discovered admissible, and the upholding of the convictions by the Court of Appeals for the District of Columbia Circuit correct. The judgment is
Affirmed.
| In this case we decide whether the temporary detention of a motorist who the police have probable cause to believe has committed a civil traffic violation is inconsistent with the Fourth Amendment's prohibition against unreasonable seizures unless a reasonable officer would have been motivated to stop the car by a desire to enforce the traffic laws. I On the evening of June 10, 1993, plainclothes vice-squad officers of the District of Columbia Metropolitan Police Department were patrolling a "high drug area" of the city in an unmarked car. Their suspicions were aroused when they passed a dark Pathfinder truck with temporary license plates and youthful occupants waiting at a stop sign, the driver looking down into the lap of the passenger at his right. The truck remained stopped at the intersection for what seemed an unusually long timemore than 20 seconds. When the police car executed a U-turn in order to head back toward the truck, the Pathfinder turned suddenly to its right, without signaling, and sped off at an "unreasonable" speed. The policemen followed, and in a short while overtook the Pathfinder when it stopped behind other traffic at a red light. They pulled up alongside, and Officer Ephraim Soto stepped out and approached the driver's door, identifying himself as a police officer and directing the driver, petitioner Brown, to put the vehicle in park. When Soto drew up to the driver's *809 window, he immediately observed two large plastic bags of what appeared to be crack cocaine in petitioner Whren's hands. Petitioners were arrested, and quantities of several types of illegal drugs were retrieved from the vehicle. Petitioners were charged in a four-count indictment with violating various federal drug laws, including 21 U.S. C. 8(a) and 860(a). At a pretrial suppression hearing, they challenged the legality of the stop and the resulting seizure of the drugs. They argued that the stop had not been justified by probable cause to believe, or even reasonable suspicion, that petitioners were engaged in illegal drug-dealing activity; and that Officer Soto's asserted ground for approaching the vehicleto give the driver a warning concerning traffic violationswas pretextual. The District Court denied the suppression motion, concluding that "the facts of the stop were not controverted," and "[t]here was nothing to really demonstrate that the actions of the officers were contrary to a normal traffic stop." App. 5. Petitioners were convicted of the counts at issue here. The Court of Appeals affirmed the convictions, holding with respect to the suppression issue that, "regardless of whether a police officer subjectively believes that the occupants of an automobile may be engaging in some other illegal behavior, a traffic stop is permissible as long as a reasonable officer in the same circumstances could have stopped the car for the suspected traffic violation." We granted certiorari. II The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a "seizure" of "persons" within the *810 meaning of this provision. See ; United ; United An automobile stop is thus subject to the constitutional imperative that it not be "unreasonable" under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. See ; Petitioners accept that Officer Soto had probable cause to believe that various provisions of the District of Columbia traffic code had been violated. See 18 Dall. C. Mun. Regs. 2213. ("An operator shall give full time and attention to the operation of the vehicle"); 220.3 ("No person shall turn any vehicle without giving an appropriate signal"); 2200.3 ("No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions"). They argue, however, that "in the unique context of civil traffic regulations" probable cause is not enough. Since, they contend, the use of automobiles is so heavily and minutely regulated that total compliance with traffic and safety rules is nearly impossible, a police officer will almost invariably be able to catch any given motorist in a technical violation. This creates the temptation to use traffic stops as a means of investigating other law violations, as to which no probable cause or even articulable suspicion exists. Petitioners, who are both black, further contend that police officers might decide which motorists to stop based on decidedly impermissible factors, such as the race of the car's occupants. To avoid this danger, they say, the Fourth Amendment test for traffic stops should be, not the normal one (applied by the Court of Appeals) of whether probable cause existed to justify the stop; but rather, whether a police officer, acting reasonably, would have made the stop for the reason given. *811 A Petitioners contend that the standard they propose is consistent with our past cases' disapproval of police attempts to use valid bases of action against citizens as pretexts for pursuing other investigatory agendas. We are reminded that in we stated that "an inventory search[1] must not be a ruse for a general rummaging in order to discover incriminating evidence"; that in 79 U.S. 367, in approving an inventory search, we apparently thought it significant that there had been "no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation"; and that in New 82 U.S. 691, we observed, in upholding the constitutionality of a warrantless administrative inspection,[2] that the search did not appear to be "a `pretext' for obtaining evidence of violation of penal laws." But only an undiscerning reader would regard these cases as endorsing the principle that ulterior motives can invalidate police conduct that is justifiable on the basis of probable cause to believe that a violation of law has occurred. In each case we were addressing the validity of a search conducted in the absence of probable cause. Our quoted statements simply explain that the exemption from the need for probable cause (and warrant), which is accorded to searches made for the purpose of inventory or administrative *812 regulation, is not accorded to searches that are not made for those purposes. See at 371-; Petitioners also rely upon 9 U.S. 1 a case which, like this one, involved a traffic stop as the prelude to a plain-view sighting and arrest on charges wholly unrelated to the basis for the stop. Petitioners point to our statement that "[t]here was no evidence whatsoever that the officer's presence to issue a traffic citation was a pretext to confirm any other previous suspicion about the occupants" of the car. at n. That dictum at most demonstrates that the Court in Bannister found no need to inquire into the question now under discussion; not that it was certain of the answer. And it may demonstrate even less than that: If by "pretext" the Court meant that the officer really had not seen the car speeding, the statement would mean only that there was no reason to doubt probable cause for the traffic stop. It would, moreover, be anomalous, to say the least, to treat a statement in a footnote in the per curiam Bannister opinion as indicating a reversal of our prior law. Petitioners' difficulty is not simply a lack of affirmative support for their position. Not only have we never held, outside the context of inventory search or administrative inspection (discussed above), that an officer's motive invalidates objectively justifiable behavior under the Fourth Amendment; but we have repeatedly held and asserted the contrary. In United 62 U.S. 579, 58, n. 3 we held that an otherwise valid warrantless boarding of a vessel by customs officials was not rendered invalid "because the customs officers were accompanied by a Louisiana state policeman, and were following an informant's tip that a vessel in the ship channel was thought to be carrying marihuana." We flatly dismissed the idea that an ulterior motive might serve to strip the agents of their legal justification. In United 1 U.S. 218 we held that *813 a traffic-violation arrest (of the sort here) would not be rendered invalid by the fact that it was "a mere pretext for a narcotics search," ; and that a lawful postarrest search of the person would not be rendered invalid by the fact that it was not motivated by the officer-safety concern that justifies such searches, see See also 1 U.S. 260, And in 36 U.S. 128, in rejecting the contention that wiretap evidence was subject to exclusion because the agents conducting the tap had failed to make any effort to comply with the statutory requirement that unauthorized acquisitions be minimized, we said that "[s]ubjective intent alone does not make otherwise lawful conduct illegal or unconstitutional." We described as having established that "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." 36 U.S., at 136, We think these cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved. We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis. B Recognizing that we have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers, petitioners disavow any intention to make the individual officer's subjective good faith the touchstone of "reasonableness." They insist that the standard *81 they have put forwardwhether the officer's conduct deviated materially from usual police practices, so that a reasonable officer in the same circumstances would not have made the stop for the reasons givenis an "objective" one. But although framed in empirical terms, this approach is plainly and indisputably driven by subjective considerations. Its whole purpose is to prevent the police from doing under the guise of enforcing the traffic code what they would like to do for different reasons. Petitioners' proposed standard may not use the word "pretext," but it is designed to combat nothing other than the perceived "danger" of the pretextual stop, albeit only indirectly and over the run of cases. Instead of asking whether the individual officer had the proper state of mind, the petitioners would have us ask, in effect, whether (based on general police practices) it is plausible to believe that the officer had the proper state of mind. Why one would frame a test designed to combat pretext in such fashion that the court cannot take into account actual and admitted pretext is a curiosity that can only be explained by the fact that our cases have foreclosed the more sensible option. If those cases were based only upon the evidentiary difficulty of establishing subjective intent, petitioners' attempt to root out subjective vices through objective means might make sense. But they were not based only upon that, or indeed even principally upon that. Their principal basiswhich applies equally to attempts to reach subjective intent through ostensibly objective meansis simply that the Fourth Amendment's concern with "reasonableness" allows certain actions to be taken in certain circumstances, whatever the subjective intent. See, e. g., (footnotes omitted); at But even if our concern had been only an evidentiary one, *815 petitioners' proposal would by no means assuage it. Indeed, it seems to us somewhat easier to figure out the intent of an individual officer than to plumb the collective consciousness of law enforcement in order to determine whether a "reasonable officer" would have been moved to act upon the traffic violation. While police manuals and standard procedures may sometimes provide objective assistance, ordinarily one would be reduced to speculating about the hypothetical reaction of a hypothetical constablean exercise that might be called virtual subjectivity. Moreover, police enforcement practices, even if they could be practicably assessed by a judge, vary from place to place and from time to time. We cannot accept that the search and seizure protections of the Fourth Amendment are so variable, cf. ; United 0 U.S. 71, and can be made to turn upon such trivialities. The difficulty is illustrated by petitioners' arguments in this case. Their claim that a reasonable officer would not have made this stop is based largely on District of Columbia police regulations which permit plainclothes officers in unmarked vehicles to enforce traffic laws "only in the case of a violation that is so grave as to pose an immediate threat to the safety of others." Metropolitan Police Department, Washington, D. C., General Order 303.1, pt. 1, Objectives and Policies (A)(2)() (Apr. 30, 1992), reprinted as Addendum to Brief for Petitioners. This basis of invalidation would not apply in jurisdictions that had a different practice. And it would not have applied even in the District of Columbia, if Officer Soto had been wearing a uniform or patrolling in a marked police cruiser. Petitioners argue that our cases support insistence upon police adherence to standard practices as an objective means of rooting out pretext. They cite no holding to that effect, and dicta in only two cases. In the petitioner had been arrested by the Immigration and Naturalization Service (INS), on the basis of *816 an administrative warrant that, he claimed, had been issued on pretextual grounds in order to enable the Federal Bureau of Investigation (FBI) to search his room after his arrest. We regarded this as an allegation of "serious misconduct," but rejected Abel's claims on the ground that "[a] finding of bad faith is not open to us on th[e] record" in light of the findings below, including the finding that "`the proceedings taken by the [INS] differed in no respect from what would have been done in the case of an individual concerning whom [there was no pending FBI investigation],' " But it is a long leap from the proposition that following regular procedures is some evidence of lack of pretext to the proposition that failure to follow regular procedures proves (or is an operational substitute for) pretext. Abel, moreover, did not involve the assertion that pretext could invalidate a search or seizure for which there was probable causeand even what it said about pretext in other contexts is plainly inconsistent with the views we later stated in Scott, and Villamonte-Marquez. In the other case claimed to contain supportive dicta, United 1 U.S. 218 in approving a search incident to an arrest for driving without a license, we noted that the arrest was "not a departure from established police department practice." That was followed, however, by the statement that "[w]e leave for another day questions which would arise on facts different from these." This is not even a dictum that purports to provide an answer, but merely one that leaves the question open. III In what would appear to be an elaboration on the "reasonable officer" test, petitioners argue that the balancing inherent in any Fourth Amendment inquiry requires us to weigh the governmental and individual interests implicated in a traffic stop such as we have here. That balancing, petitioners claim, does not support investigation of minor traffic infractions *817 by plainclothes police in unmarked vehicles; such investigation only minimally advances the government's interest in traffic safety, and may indeed retard it by producing motorist confusion and alarma view said to be supported by the Metropolitan Police Department's own regulations generally prohibiting this practice. And as for the Fourth Amendment interests of the individuals concerned, petitioners point out that our cases acknowledge that even ordinary traffic stops entail "a possibly unsettling show of authority"; that they at best "interfere with freedom of movement, are inconvenient, and consume time" and at worst "may create substantial anxiety," 0 U. S., at 657. That anxiety is likely to be even more pronounced when the stop is conducted by plainclothes officers in unmarked cars. It is of course true that in principle every Fourth Amendment case, since it turns upon a "reasonableness" determination, involves a balancing of all relevant factors. With rare exceptions not applicable here, however, the result of that balancing is not in doubt where the search or seizure is based upon probable cause. That is why petitioners must rely upon cases like to provide examples of actual "balancing" analysis. There, the police action in question was a random traffic stop for the purpose of checking a motorist's license and vehicle registration, a practice thatlike the practices at issue in the inventory search and administrative inspection cases upon which petitioners rely in making their "pretext" claiminvolves police intrusion without the probable cause that is its traditional justification. Our opinion in expressly distinguished the case from a stop based on precisely what is at issue here: "probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations." It noted approvingly that "[t]he foremost method of enforcing traffic and vehicle safety regulations is acting upon observed violations," which afford the "`quantum of individualized suspicion' " necessary to ensure that police *818 discretion is sufficiently constrained, at 65-655 (quoting United 28 U. S., at 560). What is true of is also true of other cases that engaged in detailed "balancing" to decide the constitutionality of automobile stops, such as which upheld checkpoint stops, see 28 U.S., at -562, and Brignoni-Ponce, which disallowed so-called "roving patrol" stops, see 22 U.S., at 882-88: The detailed "balancing" analysis was necessary because they involved seizures without probable cause. Where probable cause has existed, the only cases in which we have found it necessary actually to perform the "balancing" analysis involved searches or seizures conducted in an extraordinary manner, unusually harmful to an individual's privacy or even physical interestssuch as, for example, seizure by means of deadly force, see 71 U.S. 1 unannounced entry into a home, see 51 U.S. 927 entry into a home without a warrant, see 66 U.S. 70 (198), or physical penetration of the body, see 70 U.S. 753 The making of a traffic stop out of uniform does not remotely qualify as such an extreme practice, and so is governed by the usual rule that probable cause to believe the law has been broken "outbalances" private interest in avoiding police contact. Petitioners urge as an extraordinary factor in this case that the "multitude of applicable traffic and equipment regulations" is so large and so difficult to obey perfectly that virtually everyone is guilty of violation, permitting the police to single out almost whomever they wish for a stop. But we are aware of no principle that would allow us to decide at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the ordinary measure of the lawfulness of enforcement. And even if we could identify such exorbitant codes, we do not know by what standard (or what right) we would decide, as *819 petitioners would have us do, which particular provisions are sufficiently important to merit enforcement. For the run-of-the-mine case, which this surely is, we think there is no realistic alternative to the traditional commonlaw rule that probable cause justifies a search and seizure. * * * Here the District Court found that the officers had probable cause to believe that petitioners had violated the traffic code. That rendered the stop reasonable under the Fourth Amendment, the evidence thereby discovered admissible, and the upholding of the convictions by the Court of Appeals for the District of Columbia Circuit correct. The judgment is Affirmed. |
Justice Thomas | majority | false | 14 Penn Plaza LLC v. Pyett | 2009-04-01T00:00:00 | null | https://www.courtlistener.com/opinion/145890/14-penn-plaza-llc-v-pyett/ | https://www.courtlistener.com/api/rest/v3/clusters/145890/ | 2,009 | 2008-041 | 1 | 5 | 4 | The question presented by this case is whether a provi
sion in a collective-bargaining agreement that clearly and
unmistakably requires union members to arbitrate claims
arising under the Age Discrimination in Employment Act
of 1967 (ADEA), 81 Stat. 602, as amended, 29 U.S. C.
§621 et seq., is enforceable. The United States Court of
Appeals for the Second Circuit held that this Court’s
decision in Alexander v. Gardner-Denver Co., 415 U.S. 36
(1974), forbids enforcement of such arbitration provisions.
We disagree and reverse the judgment of the Court of
Appeals.
I
Respondents are members of the Service Employees
International Union, Local 32BJ (Union). Under the
National Labor Relations Act (NLRA), 49 Stat. 449, as
amended, the Union is the exclusive bargaining represen
tative of employees within the building-services industry
in New York City, which includes building cleaners, por
ters, and doorpersons. See 29 U.S. C. §159(a). In this
role, the Union has exclusive authority to bargain on
2 14 PENN PLAZA LLC v. PYETT
Opinion of the Court
behalf of its members over their “rates of pay, wages,
hours of employment, or other conditions of employment.”
Ibid. Since the 1930’s, the Union has engaged in industry
wide collective bargaining with the Realty Advisory Board
on Labor Relations, Inc. (RAB), a multiemployer bargain
ing association for the New York City real-estate industry.
The agreement between the Union and the RAB is embod
ied in their Collective Bargaining Agreement for Contrac
tors and Building Owners (CBA). The CBA requires union
members to submit all claims of employment discrimina
tion to binding arbitration under the CBA’s grievance and
dispute resolution procedures:
Ҥ30 NO DISCRIMINATION. There shall be no dis
crimination against any present or future employee by
reason of race, creed, color, age, disability, national
origin, sex, union membership, or any other character
istic protected by law, including, but not limited to,
claims made pursuant to Title VII of the Civil Rights
Act, the Americans with Disabilities Act, the Age Dis
crimination in Employment Act, the New York State
Human Rights Law, the New York City Human
Rights Code, . . . or any other similar laws, rules, or
regulations. All such claims shall be subject to the
grievance and arbitration procedures (Articles V and
VI) as the sole and exclusive remedy for violations.
Arbitrators shall apply appropriate law in rendering
decisions based upon claims of discrimination.” App.
to Pet. for Cert. 48a.1
——————
1 Article V establishes the grievance process, which applies to all
claims regardless of whether they are subject to arbitration under the
CBA. Article VI establishes the procedures for arbitration and postar
bitration judicial review, and, in particular, provides that the arbitrator
“shall . . . decide all differences arising between the parties as to inter
pretation, application or performance of any part of this Agreement and
such other issues as the parties are expressly required to arbitrate
Cite as: 556 U. S. ____ (2009) 3
Opinion of the Court
Petitioner 14 Penn Plaza LLC is a member of the RAB.
It owns and operates the New York City office building
where, prior to August 2003, respondents worked as night
lobby watchmen and in other similar capacities. Respon
dents were directly employed by petitioner Temco Service
Industries, Inc. (Temco), a maintenance service and clean
ing contractor. In August 2003, with the Union’s consent,
14 Penn Plaza engaged Spartan Security, a unionized
security services contractor and affiliate of Temco, to
provide licensed security guards to staff the lobby and
entrances of its building. Because this rendered respon
dents’ lobby services unnecessary, Temco reassigned them
to jobs as night porters and light duty cleaners in other
locations in the building. Respondents contend that these
reassignments led to a loss in income, caused them emo
tional distress, and were otherwise less desirable than
their former positions.
At respondents’ request, the Union filed grievances
challenging the reassignments. The grievances alleged
that petitioners: (1) violated the CBA’s ban on workplace
discrimination by reassigning respondents on account of
their age; (2) violated seniority rules by failing to promote
one of the respondents to a handyman position; and (3)
failed to equitably rotate overtime. After failing to obtain
relief on any of these claims through the grievance proc
ess, the Union requested arbitration under the CBA.
After the initial arbitration hearing, the Union with
drew the first set of respondents’ grievances—the age
discrimination claims—from arbitration. Because it had
consented to the contract for new security personnel at 14
Penn Plaza, the Union believed that it could not legiti
mately object to respondents’ reassignments as discrimi
natory. But the Union continued to arbitrate the seniority
——————
before him under the terms of this Agreement.” App. to Pet. for Cert.
43a–47a.
4 14 PENN PLAZA LLC v. PYETT
Opinion of the Court
and overtime claims, and, after several hearings, the
claims were denied.
In May 2004, while the arbitration was ongoing but
after the Union withdrew the age-discrimination claims,
respondents filed a complaint with the Equal Employment
Opportunity Commission (EEOC) alleging that petitioners
had violated their rights under the ADEA. Approximately
one month later, the EEOC issued a Dismissal and Notice
of Rights, which explained that the agency’s “ ‘review of
the evidence . . . fail[ed] to indicate that a violation ha[d]
occurred,’ ” and notified each respondent of his right to
sue. Pyett v. Pennsylvania Building Co., 498 F.3d 88, 91
(CA2 2007).
Respondents thereafter filed suit against petitioners in
the United States District Court for the Southern District
of New York, alleging that their reassignment violated the
ADEA and state and local laws prohibiting age discrimi
nation.2 Petitioners filed a motion to compel arbitration of
respondents’ claims pursuant to §3 and §4 of the Federal
Arbitration Act (FAA), 9 U.S. C. §§3, 4.3 The District
Court denied the motion because under Second Circuit
precedent, “even a clear and unmistakable union
——————
2 Respondents also filed a “hybrid” lawsuit against the Union and
petitioners under §301 of the Labor Management Relations Act, 1947,
29 U.S. C. §185, see also DelCostello v. Teamsters, 462 U.S. 151, 164–
165 (1983), alleging that the Union breached its “duty of fair represen
tation” under the NLRA by withdrawing support for the age
discrimination claims during the arbitration and that petitioners
breached the CBA by reassigning respondents. Respondents later
voluntarily dismissed this suit with prejudice.
3 Petitioners also filed a motion to dismiss the complaint for failure to
state a claim. The District Court denied the motion, holding that
respondents had sufficiently alleged an ADEA claim by claiming that
they “were over the age of 40, . . . they were reassigned to positions
which led to substantial losses in income, and . . . their replacements
were both younger and had less seniority at the building.” App. to Pet.
for Cert. 20a (footnote omitted). Petitioners have not appealed that
ruling.
Cite as: 556 U. S. ____ (2009) 5
Opinion of the Court
negotiated waiver of a right to litigate certain federal and
state statutory claims in a judicial forum is unenforce
able.” App. to Pet. for Cert. 21a. Respondents immedi
ately appealed the ruling under §16 of the FAA, which
authorizes an interlocutory appeal of “an order . . . refus
ing a stay of any action under section 3 of this title” or
“denying a petition under section 4 of this title to order
arbitration to proceed.” 9 U.S. C. §§16(a)(1)(A)–(B).
The Court of Appeals affirmed. 498 F.3d 88. According
to the Court of Appeals, it could not compel arbitration of
the dispute because Gardner-Denver, which “remains good
law,” held “that a collective bargaining agreement could
not waive covered workers’ rights to a judicial forum for
causes of action created by Congress.” 498 F.3d, at 92, 91,
n. 3 (citing Gardner-Denver, 415 U.S., at 49–51). The
Court of Appeals observed that the Gardner-Denver deci
sion was in tension with this Court’s more recent decision
in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20
(1991), which “held that an individual employee who had
agreed individually to waive his right to a federal forum
could be compelled to arbitrate a federal age discrimina
tion claim.” 498 F.3d, at 91, n. 3 (citing Gilmer, supra, at
33–35; emphasis in original). The Court of Appeals also
noted that this Court previously declined to resolve this
tension in Wright v. Universal Maritime Service Corp., 525
U.S. 70, 82 (1998), where the waiver at issue was not
“clear and unmistakable.” 498 F.3d, at 91, n. 3.
The Court of Appeals attempted to reconcile Gardner-
Denver and Gilmer by holding that arbitration provisions
in a collective-bargaining agreement, “which purport to
waive employees’ rights to a federal forum with respect to
statutory claims, are unenforceable.” 498 F.3d, at 93–94.
As a result, an individual employee would be free to
choose compulsory arbitration under Gilmer, but a labor
union could not collectively bargain for arbitration on
behalf of its members. We granted certiorari, 552 U.S.
6 14 PENN PLAZA LLC v. PYETT
Opinion of the Court
___ (2008), to address the issue left unresolved in Wright,
which continues to divide the Courts of Appeals,4 and now
reverse.
II
A
The NLRA governs federal labor-relations law. As
permitted by that statute, respondents designated the
Union as their “exclusive representativ[e] . . . for the
purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, or other conditions of em
ployment.” 29 U.S. C. §159(a). As the employees’ exclu
sive bargaining representative, the Union “enjoys broad
authority . . . in the negotiation and administration of
[the] collective bargaining contract.” Communications
Workers v. Beck, 487 U.S. 735, 739 (1988) (internal quota
tion marks omitted). But this broad authority “is accom
panied by a responsibility of equal scope, the responsibility
and duty of fair representation.” Humphrey v. Moore, 375
U.S. 335, 342 (1964). The employer has a corresponding
duty under the NLRA to bargain in good faith “with the
representatives of his employees” on wages, hours, and
conditions of employment. 29 U.S. C. §158(a)(5); see also
§158(d).
In this instance, the Union and the RAB, negotiating on
behalf of 14 Penn Plaza, collectively bargained in good
faith and agreed that employment-related discrimination
claims, including claims brought under the ADEA, would
be resolved in arbitration. This freely negotiated term
between the Union and the RAB easily qualifies as a
“conditio[n] of employment” that is subject to mandatory
——————
4 Compare, e.g., Rogers v. New York Univ., 220 F.3d 73, 75 (CA2
2000) (per curiam); O’Brien v. Agawam, 350 F.3d 279, 285 (CA1 2003);
Mitchell v. Chapman, 343 F.3d 811, 824 (CA6 2003); Tice v. American
Airlines, Inc., 288 F.3d 313, 317 (CA7 2002), with, e.g., Eastern Associ
ated Coal Corp. v. Massey, 373 F.3d 530, 533 (CA4 2004).
Cite as: 556 U. S. ____ (2009) 7
Opinion of the Court
bargaining under §159(a). See Litton Financial Printing
Div., Litton Business Systems, Inc. v. NLRB, 501 U.S.
190, 199 (1991) (“[A]rrangements for arbitration of dis
putes are a term or condition of employment and a manda
tory subject of bargaining”); Steelworkers v. Warrior &
Gulf Nav. Co., 363 U.S. 574, 578 (1960) (“[A]rbitration of
labor disputes under collective bargaining agreements is
part and parcel of the collective bargaining process itself”);
Textile Workers v. Lincoln Mills of Ala., 353 U.S. 448, 455
(1957) (“Plainly the agreement to arbitrate grievance
disputes is the quid pro quo for an agreement not to
strike”). The decision to fashion a CBA to require arbitra
tion of employment-discrimination claims is no different
from the many other decisions made by parties in design
ing grievance machinery.5
Respondents, however, contend that the arbitration
clause here is outside the permissible scope of the collec
tive-bargaining process because it affects the “employees’
individual, non-economic statutory rights.” Brief for Re
spondents 22; see also post, at 5–6 (SOUTER, J., dissent
ing). We disagree. Parties generally favor arbitration
——————
5 JUSTICE SOUTER claims that this understanding is “impossible to
square with our conclusion in [Alexander v.] Gardner-Denver [Co., 415
U.S. 36 (1974)] that ‘Title VII . . . stands on plainly different ground’
from ‘statutory rights related to collective activity’: ‘it concerns not
majoritarian processes, but an individual’s right to equal employment
opportunities.’ ” Post, at 5 (dissenting opinion) (quoting Gardner-
Denver, 415 U.S., at 51). As explained below, however, JUSTICE
SOUTER repeats the key analytical mistake made in Gardner-Denver’s
dicta by equating the decision to arbitrate Title VII and ADEA claims
to a decision to forgo these substantive guarantees against workplace
discrimination. See infra, at 15–17. The right to a judicial forum is not
the nonwaivable “substantive” right protected by the ADEA. See infra,
at 9, 24. Thus, although Title VII and ADEA rights may well stand on
“different ground” than statutory rights that protect “majoritarian
processes,” Gardner-Denver, supra, at 51, the voluntary decision to
collectively bargain for arbitration does not deny those statutory
antidiscrimination rights the full protection they are due.
8 14 PENN PLAZA LLC v. PYETT
Opinion of the Court
precisely because of the economics of dispute resolution.
See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 123
(2001) (“Arbitration agreements allow parties to avoid the
costs of litigation, a benefit that may be of particular
importance in employment litigation, which often involves
smaller sums of money than disputes concerning commer
cial contracts”). As in any contractual negotiation, a union
may agree to the inclusion of an arbitration provision in a
collective-bargaining agreement in return for other con
cessions from the employer. Courts generally may not
interfere in this bargained-for exchange. “Judicial nullifi
cation of contractual concessions . . . is contrary to what
the Court has recognized as one of the fundamental poli
cies of the National Labor Relations Act—freedom of
contract.” NLRB v. Magnavox Co., 415 U.S. 322, 328
(1974) (Stewart, J., concurring in part and dissenting in
part) (internal quotation marks and brackets omitted).
As a result, the CBA’s arbitration provision must be
honored unless the ADEA itself removes this particular
class of grievances from the NLRA’s broad sweep. See
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
473 U.S. 614, 628 (1985). It does not. This Court has
squarely held that the ADEA does not preclude arbitration
of claims brought under the statute. See Gilmer, 500
U.S., at 26–33.
In Gilmer, the Court explained that “[a]lthough all
statutory claims may not be appropriate for arbitration,
‘having made the bargain to arbitrate, the party should be
held to it unless Congress itself has evinced an intention
to preclude a waiver of judicial remedies for the statutory
rights at issue.’ ” Id., at 26 (quoting Mitsubishi Motors
Corp., supra, at 628). And “if Congress intended the sub
stantive protection afforded by the ADEA to include pro
tection against waiver of the right to a judicial forum, that
intention will be deducible from text or legislative history.”
500 U.S., at 29 (internal quotation marks and brackets
Cite as: 556 U. S. ____ (2009) 9
Opinion of the Court
omitted). The Court determined that “nothing in the text
of the ADEA or its legislative history explicitly precludes
arbitration.” Id., at 26–27. The Court also concluded that
arbitrating ADEA disputes would not undermine the
statute’s “remedial and deterrent function.” Id., at 28
(internal quotation marks omitted). In the end, the em
ployee’s “generalized attacks” on “the adequacy of arbitra
tion procedures” were “insufficient to preclude arbitration
of statutory claims,” id., at 30, because there was no evi
dence that “Congress, in enacting the ADEA, intended to
preclude arbitration of claims under that Act,” id., at 35.
The Gilmer Court’s interpretation of the ADEA fully
applies in the collective-bargaining context. Nothing in
the law suggests a distinction between the status of arbi
tration agreements signed by an individual employee and
those agreed to by a union representative. This Court has
required only that an agreement to arbitrate statutory
antidiscrimination claims be “explicitly stated” in the
collective-bargaining agreement. Wright, 525 U.S., at 80
(internal quotation marks omitted). The CBA under
review here meets that obligation. Respondents incor
rectly counter that an individual employee must person
ally “waive” a “[substantive] right” to proceed in court for a
waiver to be “knowing and voluntary” under the ADEA.
29 U.S. C. §626(f)(1). As explained below, however, the
agreement to arbitrate ADEA claims is not the waiver of a
“substantive right” as that term is employed in the ADEA.
Wright, supra, at 80; see infra, at 15–16. Indeed, if the
“right” referred to in §626(f)(1) included the prospective
waiver of the right to bring an ADEA claim in court, even
a waiver signed by an individual employee would be inva
lid as the statute also prevents individuals from “waiv[ing]
rights or claims that may arise after the date the waiver is
executed.” §626(f)(1)(C).6
——————
6 Respondents’ contention that §118 of the Civil Rights Act of 1991,
10 14 PENN PLAZA LLC v. PYETT
Opinion of the Court
Examination of the two federal statutes at issue in this
case, therefore, yields a straightforward answer to the
question presented: The NLRA provided the Union and
the RAB with statutory authority to collectively bargain
for arbitration of workplace discrimination claims, and
Congress did not terminate that authority with respect to
federal age-discrimination claims in the ADEA. Accord
ingly, there is no legal basis for the Court to strike down
the arbitration clause in this CBA, which was freely nego
tiated by the Union and the RAB, and which clearly and
unmistakably requires respondents to arbitrate the age
discrimination claims at issue in this appeal. Congress
——————
Pub. L. 102–166, 105 Stat. 1081, note following 42 U.S. C. §1981 (2000
ed.), precludes the enforcement of this arbitration agreement also is
misplaced. See Brief for Respondents 31–32; see also post, at 8–9
(SOUTER, J., dissenting). Section 118 expresses Congress’ support for
alternative dispute resolution: “Where appropriate and to the extent
authorized by law, the use of alternative means of dispute resolution,
including . . . arbitration, is encouraged to resolve disputes arising
under” the ADEA. 105 Stat. 1081, note following 42 U. S C. §1981.
Respondents argue that the legislative history actually signals Con
gress’ intent to preclude arbitration waivers in the collective-bargaining
context. In particular, respondents point to a House Report that, in
spite of the statute’s plain language, interprets §118 to support their
position. See H. R. Rep. No. 102–40, pt. 1, p. 97 (1991) (“[A]ny agree
ment to submit disputed issues to arbitration . . . in the context of a
collective bargaining agreement . . . does not preclude the affected
person from seeking relief under the enforcement provisions of Title
VII. This view is consistent with the Supreme Court’s interpretation of
Title VII in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)”).
But the legislative history mischaracterizes the holding of Gardner-
Denver, which does not prohibit collective bargaining for arbitration of
ADEA claims. See infra, at 11–14. Moreover, reading the legislative
history in the manner suggested by respondents would create a direct
conflict with the statutory text, which encourages the use of arbitration
for dispute resolution without imposing any constraints on collective
bargaining. In such a contest, the text must prevail. See Ratzlaf v.
United States, 510 U.S. 135, 147–148 (1994) (“[W]e do not resort to
legislative history to cloud a statutory text that is clear”).
Cite as: 556 U. S. ____ (2009) 11
Opinion of the Court
has chosen to allow arbitration of ADEA claims. The
Judiciary must respect that choice.
B
The CBA’s arbitration provision is also fully enforceable
under the Gardner-Denver line of cases. Respondents
interpret Gardner-Denver and its progeny to hold that “a
union cannot waive an employee’s right to a judicial forum
under the federal antidiscrimination statutes” because
“allowing the union to waive this right would substitute
the union’s interests for the employee’s antidiscrimination
rights.” Brief for Respondents 12. The “combination of
union control over the process and inherent conflict of
interest with respect to discrimination claims,” they argue,
“provided the foundation for the Court’s holding [in Gard
ner-Denver] that arbitration under a collective-bargaining
agreement could not preclude an individual employee’s
right to bring a lawsuit in court to vindicate a statutory
discrimination claim.” Id., at 15. We disagree.
1
The holding of Gardner-Denver is not as broad as re
spondents suggest. The employee in that case was covered
by a collective-bargaining agreement that prohibited
“discrimination against any employee on account of race,
color, religion, sex, national origin, or ancestry” and that
guaranteed that “[n]o employee will be discharged . . . except
for just cause.” 415 U.S., at 39 (internal quotation marks
omitted). The agreement also included a “multistep griev
ance procedure” that culminated in compulsory arbitration
for any “differences aris[ing] between the Company and the
Union as to the meaning and application of the provisions of
this Agreement” and “any trouble aris[ing] in the plant.”
Id., at 40–41 (internal quotation marks omitted).
The employee was discharged for allegedly producing
too many defective parts while working for the respondent
12 14 PENN PLAZA LLC v. PYETT
Opinion of the Court
as a drill operator. He filed a grievance with his union
claiming that he was “ ‘unjustly discharged’ ” in violation of
the “ ‘just cause’ ” provision within the CBA. Then at the
final prearbitration step of the grievance process, the
employee added a claim that he was discharged because of
his race. Id., at 38–42.
The arbitrator ultimately ruled that the employee had
been “ ‘discharged for just cause,’ ” but “made no reference
to [the] claim of racial discrimination.” Id., at 42. After
obtaining a right-to-sue letter from the EEOC, the em
ployee filed a claim in Federal District Court, alleging
racial discrimination in violation of Title VII of the Civil
Rights Act of 1964. The District Court issued a decision,
affirmed by the Court of Appeals, which granted summary
judgment to the employer because it concluded that “the
claim of racial discrimination had been submitted to the
arbitrator and resolved adversely to [the employee].” Id.,
at 43. In the District Court’s view, “having voluntarily
elected to pursue his grievance to final arbitration under
the nondiscrimination clause of the collective-bargaining
agreement,” the employee was “bound by the arbitral
decision” and precluded from suing his employer on any
other grounds, such as a statutory claim under Title VII.
Ibid.
This Court reversed the judgment on the narrow ground
that the arbitration was not preclusive because the collec
tive-bargaining agreement did not cover statutory claims.
As a result, the lower courts erred in relying on the “doc
trine of election of remedies” to bar the employee’s Title
VII claim. Id., at 49. “That doctrine, which refers to
situations where an individual pursues remedies that are
legally or factually inconsistent” with each other, did not
apply to the employee’s dual pursuit of arbitration and a
Title VII discrimination claim in district court. The em
ployee’s collective-bargaining agreement did not mandate
arbitration of statutory antidiscrimination claims. Id., at
Cite as: 556 U. S. ____ (2009) 13
Opinion of the Court
49–50. “As the proctor of the bargain, the arbitrator’s task
is to effectuate the intent of the parties.” Id., at 53. Be
cause the collective-bargaining agreement gave the arbi
trator “authority to resolve only questions of contractual
rights,” his decision could not prevent the employee from
bringing the Title VII claim in federal court “regardless of
whether certain contractual rights are similar to, or dupli
cative of, the substantive rights secured by Title VII.” Id.,
at 53–54; see also id., at 50.
The Court also explained that the employee had not
waived his right to pursue his Title VII claim in federal
court by participating in an arbitration that was premised
on the same underlying facts as the Title VII claim. See
id., at 52. Thus, whether the legal theory of preclusion
advanced by the employer rested on “the doctrines of
election of remedies” or was recast “as resting instead on
the doctrine of equitable estoppel and on themes of res
judicata and collateral estoppel,” id., at 49, n. 10 (internal
quotation marks omitted), it could not prevail in light of
the collective-bargaining agreement’s failure to address
arbitration of Title VII claims. See id., at 46, n. 6 (“[W]e
hold that the federal policy favoring arbitration does not
establish that an arbitrator’s resolution of a contractual
claim is dispositive of a statutory claim under Title VII”
(emphasis added)).
The Court’s decisions following Gardner-Denver have
not broadened its holding to make it applicable to the facts
of this case. In Barrentine v. Arkansas-Best Freight Sys
tem, Inc., 450 U.S. 728 (1981), the Court considered
“whether an employee may bring an action in federal
district court, alleging a violation of the minimum wage
provisions of the Fair Labor Standards Act, . . . after
having unsuccessfully submitted a wage claim based on
the same underlying facts to a joint grievance committee
pursuant to the provisions of his union’s collective
bargaining agreement.” Id., at 729–730. The Court held
14 14 PENN PLAZA LLC v. PYETT
Opinion of the Court
that the unsuccessful arbitration did not preclude the
federal lawsuit. Like the collective-bargaining agreement
in Gardner-Denver, the arbitration provision under review
in Barrentine did not expressly reference the statutory
claim at issue. See 450 U.S., at 731, n. 5. The Court thus
reiterated that an “arbitrator’s power is both derived from,
and limited by, the collective-bargaining agreement” and
“[h]is task is limited to construing the meaning of the
collective-bargaining agreement so as to effectuate the
collective intent of the parties.” Id., at 744.
McDonald v. West Branch, 466 U.S. 284 (1984), was
decided along similar lines. The question presented in
that case was “whether a federal court may accord preclu
sive effect to an unappealed arbitration award in a case
brought under [42 U.S. C. §1983].” Id., at 285. The Court
declined to fashion such a rule, again explaining that
“because an arbitrator’s authority derives solely from the
contract, Barrentine, supra, at 744, an arbitrator may not
have authority to enforce §1983” when that provision is
left unaddressed by the arbitration agreement. Id., at
290. Accordingly, as in both Gardner-Denver and Barren
tine, the Court’s decision in McDonald hinged on the scope
of the collective-bargaining agreement and the arbitrator’s
parallel mandate.
The facts underlying Gardner-Denver, Barrentine, and
McDonald reveal the narrow scope of the legal rule arising
from that trilogy of decisions. Summarizing those opin
ions in Gilmer, this Court made clear that the Gardner-
Denver line of cases “did not involve the issue of the en
forceability of an agreement to arbitrate statutory claims.”
500 U.S., at 35. Those decisions instead “involved the
quite different issue whether arbitration of contract-based
claims precluded subsequent judicial resolution of statu
tory claims. Since the employees there had not agreed to
arbitrate their statutory claims, and the labor arbitrators
were not authorized to resolve such claims, the arbitration
Cite as: 556 U. S. ____ (2009) 15
Opinion of the Court
in those cases understandably was held not to preclude
subsequent statutory actions.” Ibid.; see also Wright, 525
U.S., at 76; Livadas v. Bradshaw, 512 U.S. 107, 127,
n. 21 (1994).7 Gardner-Denver and its progeny thus do not
control the outcome where, as is the case here, the collec
tive-bargaining agreement’s arbitration provision ex
pressly covers both statutory and contractual discrimina
tion claims.8
——————
7 JUSTICE SOUTER’s reliance on Wright v. Universal Maritime Service
Corp., 525 U.S. 70 (1998), to support its view of Gardner-Denver is
misplaced. See post, at 5, 7. Wright identified the “tension” between
the two lines of cases represented by Gardner-Denver and Gilmer, but
found “it unnecessary to resolve the question of the validity of a union
negotiated waiver, since it [was] apparent . . . on the facts and argu
ments presented . . . that no such waiver [had] occurred.” 525 U.S., at
76–77. And although his dissent describes Wright’s characterization of
Gardner-Denver as “raising a ‘seemingly absolute prohibition of union
waiver of employees’ federal forum rights,’ ” post, at 7 (quoting Wright,
525 U.S., at 80), it wrenches the statement out of context: “Although
[the right to a judicial forum] is not a substantive right, see Gilmer, 500
U.S., at 26, and whether or not Gardner-Denver’s seemingly absolute
prohibition of union waiver of employees’ federal forum rights survives
Gilmer, Gardner-Denver at least stands for the proposition that the
right to a federal judicial forum is of sufficient importance to be pro
tected against less-than-explicit union waiver in a CBA,” id., at 80
(emphasis added). Wright therefore neither endorsed Gardner-Denver’s
broad language nor suggested a particular result in this case.
8 Because today’s decision does not contradict the holding of Gardner-
Denver, we need not resolve the stare decisis concerns raised by the
dissenting opinions. See post, at 4, 9 (opinion of SOUTER, J.); post, at 2–
4 (opinion of STEVENS, J.). But given the development of this Court’s
arbitration jurisprudence in the intervening years, see infra, at 16–19,
Gardner-Denver would appear to be a strong candidate for overruling if
the dissents’ broad view of its holding, see post, at 6–7 (opinion of
SOUTER, J.), were correct. See Patterson v. McLean Credit Union, 491
U.S. 164, 173 (1989) (explaining that it is appropriate to overrule a
decision where there “has been [an] intervening development of the
law” such that the earlier “decision [is] irreconcilable with competing
legal doctrines and policies”).
16 14 PENN PLAZA LLC v. PYETT
Opinion of the Court
2
We recognize that apart from their narrow holdings, the
Gardner-Denver line of cases included broad dicta that
was highly critical of the use of arbitration for the vindica
tion of statutory antidiscrimination rights. That skepti
cism, however, rested on a misconceived view of arbitra
tion that this Court has since abandoned.
First, the Court in Gardner-Denver erroneously as
sumed that an agreement to submit statutory discrimina
tion claims to arbitration was tantamount to a waiver of
those rights. See 415 U.S., at 51. (“[T]here can be no
prospective waiver of an employee’s rights under Title VII”
(emphasis added)). For this reason, the Court stated, “the
rights conferred [by Title VII] can form no part of the
collective-bargaining process since waiver of these rights
would defeat the paramount congressional purpose behind
Title VII.” Ibid.; see also id., at 56 (“we have long recog
nized that ‘the choice of forums inevitably affects the scope
of the substantive right to be vindicated’ ” (quoting U. S.
Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351, 359–360
(1971) (Harlan, J., concurring))).
The Court was correct in concluding that federal anti
discrimination rights may not be prospectively waived, see
29 U.S. C. §626(f)(1)(C); see supra, at 9, but it confused an
agreement to arbitrate those statutory claims with a
prospective waiver of the substantive right. The decision
to resolve ADEA claims by way of arbitration instead of
litigation does not waive the statutory right to be free from
workplace age discrimination; it waives only the right to
seek relief from a court in the first instance. See Gilmer,
supra, at 26 (“ ‘[B]y agreeing to arbitrate a statutory claim,
a party does not forgo the substantive rights afforded by
the statute; it only submits to their resolution in an arbi
tral, rather than a judicial, forum’ ” (quoting Mitsubishi
Motors Corp., 473 U.S., at 628)). This “Court has been
quite specific in holding that arbitration agreements can
Cite as: 556 U. S. ____ (2009) 17
Opinion of the Court
be enforced under the FAA without contravening the
policies of congressional enactments giving employees
specific protection against discrimination prohibited by
federal law.” Circuit City Stores, Inc., 532 U.S., at 123.
The suggestion in Gardner-Denver that the decision to
arbitrate statutory discrimination claims was tantamount
to a substantive waiver of those rights, therefore, reveals a
distorted understanding of the compromise made when an
employee agrees to compulsory arbitration.
In this respect, Gardner-Denver is a direct descendant of
the Court’s decision in Wilko v. Swan, 346 U.S. 427
(1953), which held that an agreement to arbitrate claims
under the Securities Act of 1933 was unenforceable. See
id., at 438. The Court subsequently overruled Wilko and,
in so doing, characterized the decision as “pervaded by . . .
‘the old judicial hostility to arbitration.’ ” Rodriguez de
Quijas v. Shearson/American Express, Inc., 490 U.S. 477,
480 (1989). The Court added: “To the extent that Wilko
rested on suspicion of arbitration as a method of weaken
ing the protections afforded in the substantive law to
would-be complainants, it has fallen far out of step with
our current strong endorsement of the federal statutes
favoring this method of resolving disputes.” Id., at 481;
see also Mitsubishi Motors Corp., supra, at 626–627 (“[W]e
are well past the time when judicial suspicion of the desir
ability of arbitration and of the competence of arbitral
tribunals inhibited the development of arbitration as an
alternative means of dispute resolution”). The timeworn
“mistrust of the arbitral process” harbored by the Court in
Gardner-Denver thus weighs against reliance on anything
more than its core holding. Shearson/American Express
Inc. v. McMahon, 482 U.S. 220, 231–232 (1987); see also
Gilmer, 500 U.S., at 34, n. 5 (reiterating that Gardner-
Denver’s view of arbitration “has been undermined by [the
Court’s] recent arbitration decisions”). Indeed, in light of
the “radical change, over two decades, in the Court’s re
18 14 PENN PLAZA LLC v. PYETT
Opinion of the Court
ceptivity to arbitration,” Wright, 525 U.S., at 77, reliance
on any judicial decision similarly littered with Wilko’s
overt hostility to the enforcement of arbitration agree
ments would be ill advised. 9
Second, Gardner-Denver mistakenly suggested that
certain features of arbitration made it a forum “well suited
to the resolution of contractual disputes,” but “a compara
tively inappropriate forum for the final resolution of rights
created by Title VII.” 415 U.S., at 56. According to the
——————
9 JUSTICE STEVENS suggests that the Court is displacing its “earlier
determination of the relevant provisions’ meaning” based on a “prefer
ence for arbitration.” Post, at 2. But his criticism lacks any basis. We
are not revisiting a settled issue or disregarding an earlier determina
tion; the Court is simply deciding the question identified in Wright as
unresolved. See supra, at 5–6; see also infra, at 23–24. And, contrary
to JUSTICE STEVENS’ accusation, it is the Court’s fidelity to the ADEA’s
text—not an alleged preference for arbitration—that dictates the
answer to the question presented. As Gilmer explained, nothing in the
text of Title VII or the ADEA precludes contractual arbitration, see
supra, at 8–9, and JUSTICE STEVENS has never suggested otherwise.
Rather, he has always contended that permitting the “compulsory
arbitration” of employment discrimination claims conflicts with his
perception of “the congressional purpose animating the ADEA.” Gil
mer, 500 U.S., at 41 (STEVENS, J., dissenting); see also id., at 42
(“Plainly, it would not comport with the congressional objectives behind
a statute seeking to enforce civil rights protected by Title VII to allow
the very forces that had practiced discrimination to contract away the
right to enforce civil rights in the courts” (internal quotation marks
omitted)). The Gilmer Court did not adopt JUSTICE STEVENS’ personal
view of the purposes underlying the ADEA, for good reason: That view
is not embodied within the statute’s text. Accordingly, it is not the
statutory text that JUSTICE STEVENS has sought to vindicate—it is
instead his own “preference” for mandatory judicial review, which he
disguises as a search for congressional purpose. This Court is not
empowered to incorporate such a preference into the text of a federal
statute. See infra, at 20–21. It is for this reason, and not because of a
“policy favoring arbitration,” see post, at 1, 3 (STEVENS, J., dissenting),
that the Court overturned Wilko v. Swan, 346 U.S. 427 (1953). And it
is why we disavow the antiarbitration dicta of Gardner-Denver and its
progeny today.
Cite as: 556 U. S. ____ (2009) 19
Opinion of the Court
Court, the “factfinding process in arbitration” is “not
equivalent to judicial factfinding” and the “informality of
arbitral procedure . . . makes arbitration a less appropri
ate forum for final resolution of Title VII issues than the
federal courts.” Id., at 57, 58. The Court also questioned
the competence of arbitrators to decide federal statutory
claims. See id., at 57 (“[T]he specialized competence of
arbitrators pertains primarily to the law of the shop, not
the law of the land”); Barrentine, 450 U.S., at 743 (“Al
though an arbitrator may be competent to resolve many
preliminary factual questions, such as whether the em
ployee ‘punched in’ when he said he did, he may lack
competence to decide the ultimate legal issue whether an
employee’s right to a minimum wage or to overtime pay
under the statute has been violated”). In the Court’s view,
“the resolution of statutory or constitutional issues is a
primary responsibility of courts, and judicial construction
has proved especially necessary with respect to Title VII,
whose broad language frequently can be given meaning
only by reference to public law concepts.” Gardner-
Denver, supra, at 57; see also McDonald, 466 U.S., at 290
(“An arbitrator may not . . . have the expertise required to
resolve the complex legal questions that arise in §1983
actions”).
These misconceptions have been corrected. For exam
ple, the Court has “recognized that arbitral tribunals are
readily capable of handling the factual and legal complexi
ties of antitrust claims, notwithstanding the absence of
judicial instruction and supervision” and that “there is no
reason to assume at the outset that arbitrators will not
follow the law.” McMahon, supra, at 232; Mitsubishi
Motors Corp., 473 U.S., at 634 (“We decline to indulge the
presumption that the parties and arbitral body conducting
a proceeding will be unable or unwilling to retain compe
tent, conscientious, and impartial arbitrators”). An arbi
trator’s capacity to resolve complex questions of fact and
20 14 PENN PLAZA LLC v. PYETT
Opinion of the Court
law extends with equal force to discrimination claims
brought under the ADEA. Moreover, the recognition that
arbitration procedures are more streamlined than federal
litigation is not a basis for finding the forum somehow
inadequate; the relative informality of arbitration is one of
the chief reasons that parties select arbitration. Parties
“trad[e] the procedures and opportunity for review of the
courtroom for the simplicity, informality, and expedition of
arbitration.” Id., at 628. In any event, “[i]t is unlikely . . .
that age discrimination claims require more extensive
discovery than other claims that we have found to be
arbitrable, such as RICO and antitrust claims.” Gilmer,
500 U.S., at 31. At bottom, objections centered on the
nature of arbitration do not offer a credible basis for dis
crediting the choice of that forum to resolve statutory
antidiscrimination claims.10
Third, the Court in Gardner-Denver raised in a footnote
a “further concern” regarding “the union’s exclusive con
trol over the manner and extent to which an individual
grievance is presented.” 415 U.S., at 58, n. 19. The Court
suggested that in arbitration, as in the collective
bargaining process, a union may subordinate the interests
of an individual employee to the collective interests of all
employees in the bargaining unit. Ibid.; see also McDon
ald, supra, at 291 (“The union’s interests and those of the
individual employee are not always identical or even
compatible. As a result, the union may present the em
ployee’s grievance less vigorously, or make different stra
——————
10 Moreover, an arbitrator’s decision as to whether a unionized em
ployee has been discriminated against on the basis of age in violation of
the ADEA remains subject to judicial review under the FAA. 9 U.S. C.
§10(a). “[A]lthough judicial scrutiny of arbitration awards necessarily
is limited, such review is sufficient to ensure that arbitrators comply
with the requirements of the statute.” Shearson/American Express Inc.
v. McMahon, 482 U.S. 220, 232 (1987).
Cite as: 556 U. S. ____ (2009) 21
Opinion of the Court
tegic choices, than would the employee”); see also Barren
tine, supra, at 742; post, at 8, n. 4 (SOUTER, J., dissenting).
We cannot rely on this judicial policy concern as a
source of authority for introducing a qualification into the
ADEA that is not found in its text. Absent a constitu
tional barrier, “it is not for us to substitute our view of . . .
policy for the legislation which has been passed by Con
gress.” Florida Dept. of Revenue v. Piccadilly Cafeterias,
Inc., 554 U. S. ___, ___ (2008) (slip op., at 18) (internal
quotation marks omitted). Congress is fully equipped “to
identify any category of claims as to which agreements to
arbitrate will be held unenforceable.” Mitsubishi Motors
Corp., supra, at 627. Until Congress amends the ADEA to
meet the conflict-of-interest concern identified in the
Gardner-Denver dicta, and seized on by respondents here,
there is “no reason to color the lens through which the
arbitration clause is read” simply because of an alleged
conflict of interest between a union and its members.
Mitsubishi Motors Corp., supra, at 628. This is a “battl[e]
that should be fought among the political branches and
the industry. Those parties should not seek to amend the
statute by appeal to the Judicial Branch.” Barnhart v.
Sigmon Coal Co., 534 U.S. 438, 462 (2002).
The conflict-of-interest argument also proves too much.
Labor unions certainly balance the economic interests of
some employees against the needs of the larger work force
as they negotiate collective-bargain agreements and im
plement them on a daily basis. But this attribute of or
ganized labor does not justify singling out an arbitration
provision for disfavored treatment. This “principle of
majority rule” to which respondents object is in fact the
central premise of the NLRA. Emporium Capwell Co. v.
Western Addition Community Organization, 420 U.S. 50,
62 (1975). “In establishing a regime of majority rule,
Congress sought to secure to all members of the unit the
benefits of their collective strength and bargaining power,
22 14 PENN PLAZA LLC v. PYETT
Opinion of the Court
in full awareness that the superior strength of some indi
viduals or groups might be subordinated to the interest of
the majority.” Ibid. (footnote omitted); see also Ford
Motor Co. v. Huffman, 345 U.S. 330, 338 (1953) (“The
complete satisfaction of all who are represented is hardly
to be expected”); Pennsylvania R. Co. v. Rychlik, 352 U.S.
480, 498 (1957) (Frankfurter, J., concurring). It was Con
gress’ verdict that the benefits of organized labor outweigh
the sacrifice of individual liberty that this system neces
sarily demands. Respondents’ argument that they were
deprived of the right to pursue their ADEA claims in
federal court by a labor union with a conflict of interest is
therefore unsustainable; it amounts to a collateral attack
on the NLRA.
In any event, Congress has accounted for this conflict of
interest in several ways. As indicated above, the NLRA
has been interpreted to impose a “duty of fair representa
tion” on labor unions, which a union breaches “when its
conduct toward a member of the bargaining unit is arbi
trary, discriminatory, or in bad faith.” Marquez v. Screen
Actors, 525 U.S. 33, 44 (1998). This duty extends to “chal
lenges leveled not only at a union’s contract administra
tion and enforcement efforts but at its negotiation activi
ties as well.” Beck, 487 U.S., at 743 (citation omitted).
Thus, a union is subject to liability under the NLRA if it
illegally discriminates against older workers in either the
formation or governance of the collective-bargaining agree
ment, such as by deciding not to pursue a grievance on
behalf of one of its members for discriminatory reasons.
See Vaca v. Sipes, 386 U.S. 171, 177 (1967) (describing
the duty of fair representation as the “statutory obligation
to serve the interests of all members without hostility or
discrimination toward any, to exercise its discretion with
complete good faith and honesty, and to avoid arbitrary
conduct” (emphasis added)). Respondents in fact brought
a fair representation suit against the Union based on its
Cite as: 556 U. S. ____ (2009) 23
Opinion of the Court
withdrawal of support for their age-discrimination claims.
See n. 2, supra. Given this avenue that Congress has
made available to redress a union’s violation of its duty to
its members, it is particularly inappropriate to ask this
Court to impose an artificial limitation on the collective
bargaining process.
In addition, a union is subject to liability under the
ADEA if the union itself discriminates against its mem
bers on the basis of age. See 29 U.S. C. §623(d); see also 1
B. Lindemann & P. Grossman, Employment Discrimina
tion Law 1575–1581 (4th ed. 2007) (explaining that a labor
union may be held jointly liable with an employer under
federal antidiscrimination laws for discriminating in the
formation of a collective-bargaining agreement, knowingly
acquiescing in the employer’s discrimination, or inducing
the employer to discriminate); cf. Goodman v. Lukens Steel
Co., 482 U.S. 656, 669 (1987). Union members may also
file age-discrimination claims with the EEOC and the
National Labor Relations Board, which may then seek
judicial intervention under this Court’s precedent. See
EEOC v. Waffle House, Inc., 534 U.S. 279, 295–296
(2002). In sum, Congress has provided remedies for the
situation where a labor union is less than vigorous in
defense of its members’ claims of discrimination under the
ADEA.
III
Finally, respondents offer a series of arguments con
tending that the particular CBA at issue here does not
clearly and unmistakably require them to arbitrate their
ADEA claims. See Brief for Respondents 44–47. But
respondents did not raise these contract-based arguments
in the District Court or the Court of Appeals. To the
contrary, respondents acknowledged on appeal that the
CBA provision requiring arbitration of their federal anti
discrimination statutory claims “is sufficiently explicit” in
24 14 PENN PLAZA LLC v. PYETT
Opinion of the Court
precluding their federal lawsuit. Brief for Plaintiffs-
Appellees in No. 06–3047–cv(L) etc. (CA2), p. 9. In light of
respondents’ litigating position, both lower courts assumed
that the CBA’s arbitration clause clearly applied to re
spondents and proceeded to decide the question left unre
solved in Wright. We granted review of the question
presented on that understanding.
“Without cross-petitioning for certiorari, a prevailing
party may, of course, ‘defend its judgment on any ground
properly raised below whether or not that ground was
relied upon, rejected, or even considered by the District
Court or the Court of Appeals.’ ” Granfinanciera, S. A. v.
Nordberg, 492 U.S. 33, 38–39 (1989) (quoting Washington
v. Confederated Bands and Tribes of Yakima Nation, 439
U.S. 463, 476, n. 20 (1979)). But this Court will affirm on
grounds that have “ ‘not been raised below . . . “only in
exceptional cases.” ’ ” Nordberg, supra, at 39 (quoting
Heckler v. Campbell, 461 U.S. 458, 468–469, n. 12 (1983)).
This is not an “exceptional case.” As a result, we find that
respondents’ alternative arguments for affirmance have
been forfeited. See, e.g., Rita v. United States, 551 U.S.
338, 360 (2007); Sprietsma v. Mercury Marine, 537 U.S.
51, 56, n. 4 (2002). We will not resurrect them on respon
dents’ behalf.
Respondents also argue that the CBA operates as a
substantive waiver of their ADEA rights because it not
only precludes a federal lawsuit, but also allows the Union
to block arbitration of these claims. Brief for Respondents
28–30. Petitioners contest this characterization of the
CBA, see Reply Brief for Petitioners 23–27, and offer
record evidence suggesting that the Union has allowed
respondents to continue with the arbitration even though
the Union has declined to participate, see App. to Pet. for
Cert. 42a. But not only does this question require resolu
tion of contested factual allegations, it was not fully
briefed to this or any court and is not fairly encompassed
Cite as: 556 U. S. ____ (2009) 25
Opinion of the Court
within the question presented, see this Court’s Rule
14.1(a). Thus, although a substantive waiver of federally
protected civil rights will not be upheld, see Mitsubishi
Motors Corp., 473 U.S., at 637, and n. 19; Gilmer, 500
U.S., at 29, we are not positioned to resolve in the first
instance whether the CBA allows the Union to prevent
respondents from “effectively vindicating” their “federal
statutory rights in the arbitral forum,” Green Tree Finan
cial Corp.-Ala. v. Randolph, 531 U.S. 79, 90 (2000). Reso
lution of this question at this juncture would be particu
larly inappropriate in light of our hesitation to invalidate
arbitration agreements on the basis of speculation. See
id., at 91.
IV
We hold that a collective-bargaining agreement that
clearly and unmistakably requires union members to
arbitrate ADEA claims is enforceable as a matter of fed
eral law. The judgment of the Court of Appeals is re
versed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Cite as: 556 U. S. ____ (2009) 1
STEVENS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–581
_________________
14 PENN PLAZA LLC, ET AL., PETITIONERS v.
STEVEN PYETT ET AL. | The question presented by this case is whether a provi sion in a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate claims arising under the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 9 U.S. C. et seq., is enforceable. The United States Court of Appeals for the Second Circuit held that this Court’s decision in forbids enforcement of such arbitration provisions. We disagree and reverse the judgment of the Court of Appeals. I Respondents are members of the Service Employees International Union, Local 3BJ (Union). Under the National Labor Relations Act (NLRA), as amended, the Union is the exclusive bargaining represen tative of employees within the building-services industry in New York City, which includes building cleaners, por ters, and doorpersons. See 9 U.S. C. In this role, the Union has exclusive authority to bargain on 14 PENN PLAZA LLC v. PYETT Opinion of the Court behalf of its members over their “rates of pay, wages, hours of employment, or other conditions of employment.” Since the 1930’s, the Union has engaged in industry wide collective bargaining with the Realty Advisory Board on Labor Relations, (RAB), a multiemployer bargain ing association for the New York City real-estate industry. The agreement between the Union and the RAB is embod ied in their Collective Bargaining Agreement for Contrac tors and Building Owners (CBA). The CBA requires union members to submit all claims of employment discrimina tion to binding arbitration under the CBA’s grievance and dispute resolution procedures: NO DISCRIMINATION. There shall be no dis crimination against any present or future employee by reason of race, creed, color, age, disability, national origin, sex, union membership, or any other character istic protected by law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights Act, the Aicans with Disabilities Act, the Age Dis crimination in Employment Act, the New York State Human Rights Law, the New York City Human Rights Code, or any other similar laws, rules, or regulations. All such claims shall be subject to the grievance and arbitration procedures (Articles V and VI) as the sole and exclusive remedy for violations. Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination.” App. to Pet. for Cert. 48a.1 —————— 1 Article V establishes the grievance process, which applies to all claims regardless of whether they are subject to arbitration under the CBA. Article VI establishes the procedures for arbitration and postar bitration judicial review, and, in particular, provides that the arbitrator “shall decide all differences arising between the parties as to inter pretation, application or performance of any part of this Agreement and such other issues as the parties are expressly required to arbitrate Cite as: 556 U. S. (009) 3 Opinion of the Court Petitioner 14 Penn Plaza LLC is a member of the RAB. It owns and operates the New York City office building where, prior to August respondents worked as night lobby watchmen and in other similar capacities. Respon dents were directly employed by petitioner Temco Service Industries, (Temco), a maintenance service and clean ing contractor. In August with the Union’s consent, 14 Penn Plaza engaged Spartan Security, a unionized security services contractor and affiliate of Temco, to provide licensed security guards to staff the lobby and entrances of its building. Because this rendered respon dents’ lobby services unnecessary, Temco reassigned them to jobs as night porters and light duty cleaners in other locations in the building. Respondents contend that these reassignments led to a loss in income, caused them emo tional distress, and were otherwise less desirable than their for positions. At respondents’ request, the Union filed grievances challenging the reassignments. The grievances alleged that petitioners: (1) violated the CBA’s ban on workplace discrimination by reassigning respondents on account of their age; () violated seniority rules by failing to promote one of the respondents to a handyman position; and (3) failed to equitably rotate overtime. After failing to obtain relief on any of these claims through the grievance proc ess, the Union requested arbitration under the CBA. After the initial arbitration hearing, the Union with drew the first set of respondents’ grievances—the age discrimination claims—from arbitration. Because it had consented to the contract for new security personnel at 14 Penn Plaza, the Union believed that it could not legiti mately object to respondents’ reassignments as discrimi natory. But the Union continued to arbitrate the seniority —————— before him under the terms of this Agreement.” App. to Pet. for Cert. 43a–47a. 4 14 PENN PLAZA LLC v. PYETT Opinion of the Court and overtime claims, and, after several hearings, the claims were denied. In May while the arbitration was ongoing but after the Union withdrew the age-discrimination claims, respondents filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that petitioners had violated their rights under the ADEA. Approximately one month later, the EEOC issued a Dismissal and Notice of Rights, which explained that the agency’s “ ‘review of the evidence fail[ed] to indicate that a violation ha[d] occurred,’ ” and notified each respondent of his right to sue. (CA 007). Respondents thereafter filed suit against petitioners in the United States District Court for the Southern District of New York, alleging that their reassignment violated the ADEA and state and local laws prohibiting age discrimi nation. Petitioners filed a motion to compel arbitration of respondents’ claims pursuant to and of the Federal Arbitration Act (FAA), 9 U.S. C. §, 4.3 The District Court denied the motion because under Second Circuit precedent, “even a clear and unmistakable union —————— Respondents also filed a “hybrid” lawsuit against the Union and petitioners under 01 of the Labor Management Relations Act, 1947, 9 U.S. C. see also 164– 165 alleging that the Union breached its “duty of fair represen tation” under the NLRA by withdrawing support for the age discrimination claims during the arbitration and that petitioners breached the CBA by reassigning respondents. Respondents later voluntarily dismissed this suit with prejudice. 3 Petitioners also filed a motion to dismiss the complaint for failure to state a claim. The District Court denied the motion, holding that respondents had sufficiently alleged an ADEA claim by claiming that they “were over the age of 40, they were reassigned to positions which led to substantial losses in income, and their replacements were both younger and had less seniority at the building.” App. to Pet. for Cert. 0a Petitioners have not appealed that ruling. Cite as: 556 U. S. (009) 5 Opinion of the Court negotiated waiver of a right to litigate certain federal and state statutory claims in a judicial forum is unenforce able.” App. to Pet. for Cert. 1a. Respondents immedi ately appealed the ruling under of the FAA, which authorizes an interlocutory appeal of “an order refus ing a stay of any action under section 3 of this title” or “denying a petition under section 4 of this title to order arbitration to proceed.” 9 U.S. C. §(a)(1)(A)–(B). The Court of Appeals affirmed. According to the Court of Appeals, it could not compel arbitration of the dispute because which “remains good law,” held “that a collective bargaining agreement could not waive covered workers’ rights to a judicial forum for causes of action created by Congress.” n. 3 (citing –51). The Court of Appeals observed that the deci sion was in tension with this Court’s more recent decision in (19), which “held that an individual employee who had agreed individually to waive his right to a federal forum could be compelled to arbitrate a federal age discrimina tion claim.” 498 F.3d, at n. 3 (citing at 33–35; emphasis in original). The Court of Appeals also noted that this Court previously declined to resolve this tension in v. Universal Maritime Service 55 U.S. 70, 8 where the waiver at issue was not “clear and unmistakable.” 498 F.3d, at n. 3. The Court of Appeals attempted to reconcile Gardner- and by holding that arbitration provisions in a collective-bargaining agreement, “which purport to waive employees’ rights to a federal forum with respect to statutory claims, are unenforceable.” –94. As a result, an individual employee would be free to choose compulsory arbitration under but a labor union could not collectively bargain for arbitration on behalf of its members. We granted certiorari, 55 U.S. 6 14 PENN PLAZA LLC v. PYETT Opinion of the Court (008), to address the issue left unresolved in which continues to divide the Courts of Appeals,4 and now reverse. II A The NLRA governs federal labor-relations law. As permitted by that statute, respondents designated the Union as their “exclusive representativ[e] for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of em ployment.” 9 U.S. C. As the employees’ exclu sive bargaining representative, the Union “enjoys broad authority in the negotiation and administration of [the] collective bargaining contract.” Communications (internal quota tion marks omitted). But this broad authority “is accom panied by a responsibility of equal scope, the responsibility and duty of fair representation.” Humphrey v. Moore, 3 U.S. 335, 34 (1964). The employer has a corresponding duty under the NLRA to bargain in good faith “with the representatives of his employees” on wages, hours, and conditions of employment. 9 U.S. C. see also In this instance, the Union and the RAB, negotiating on behalf of 14 Penn Plaza, collectively bargained in good faith and agreed that employment-related discrimination claims, including claims brought under the ADEA, would be resolved in arbitration. This freely negotiated term between the Union and the RAB easily qualifies as a “conditio[n] of employment” that is subject to mandatory —————— 4 Compare, e.g., (CA 000) (per curiam); ; ; with, e.g., Eastern Associ ated Coal Cite as: 556 U. S. (009) 7 Opinion of the Court bargaining under See Litton Financial Printing Div., Litton Business Systems, v. NLRB, 501 U.S. 1, 199 (19) (“[A]rrangements for arbitration of dis putes are a term or condition of employment and a manda tory subject of bargaining”); (“[A]rbitration of labor disputes under collective bargaining agreements is part and parcel of the collective bargaining process itself”); Textile (1957) (“Plainly the agreement to arbitrate grievance disputes is the quid pro quo for an agreement not to strike”). The decision to fashion a CBA to require arbitra tion of employment-discrimination claims is no different from the many other decisions made by parties in design ing grievance machinery.5 Respondents, however, contend that the arbitration clause here is outside the permissible scope of the collec tive-bargaining process because it affects the “employees’ individual, non-economic statutory rights.” Brief for Re spondents ; see also post, at 5–6 (SOUTER, J., dissent ing). We disagree. Parties generally favor arbitration —————— 5 JUSTICE SOUTER claims that this understanding is “impossible to square with our conclusion in [Alexander v.] [Co., 415 U.S. 36 ] that ‘Title VII stands on plainly different ground’ from ‘statutory rights related to collective activity’: ‘it concerns not majoritarian processes, but an individual’s right to equal employment opportunities.’ ” Post, at 5 (dissenting opinion) (quoting Gardner- ). As explained below, however, JUSTICE SOUTER repeats the key analytical mistake made in ’s dicta by equating the decision to arbitrate Title VII and ADEA claims to a decision to forgo these substantive guarantees against workplace discrimination. See infra, –17. The right to a judicial forum is not the nonwaivable “substantive” right protected by the ADEA. See infra, 4. Thus, although Title VII and ADEA rights may well stand on “different ground” than statutory rights that protect “majoritarian processes,” the voluntary decision to collectively bargain for arbitration does not deny those statutory antidiscrimination rights the full protection they are due. 8 14 PENN PLAZA LLC v. PYETT Opinion of the Court precisely because of the economics of dispute resolution. See Circuit City Stores, (001) (“Arbitration agreements allow parties to avoid the costs of litigation, a benefit that may be of particular importance in employment litigation, which often involves smaller sums of money than disputes concerning com cial contracts”). As in any contractual negotiation, a union may agree to the inclusion of an arbitration provision in a collective-bargaining agreement in return for other con cessions from the employer. Courts generally may not interfere in this bargained-for exchange. “Judicial nullifi cation of contractual concessions is contrary to what the Court has recognized as one of the fundamental poli cies of the National Labor Relations Act—freedom of contract.” (Stewart, J., concurring in part and dissenting in part) (internal quotation marks and brackets omitted). As a result, the CBA’s arbitration provision must be honored unless the ADEA itself removes this particular class of grievances from the NLRA’s broad sweep. See Mitsubishi Motors It does not. This Court has squarely held that the ADEA does not preclude arbitration of claims brought under the statute. See 500 U.S., –33. In the Court explained that “[a]lthough all statutory claims may not be appropriate for arbitration, ‘having made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.’ ” (quoting Mitsubishi Motors at ). And “if Congress intended the sub stantive protection afforded by the ADEA to include pro tection against waiver of the right to a judicial forum, that intention will be deducible from text or legislative history.” (internal quotation marks and brackets Cite as: 556 U. S. (009) 9 Opinion of the Court omitted). The Court determined that “nothing in the text of the ADEA or its legislative history explicitly precludes arbitration.” –7. The Court also concluded that arbitrating ADEA disputes would not undermine the statute’s “remedial and deterrent function.” (internal quotation marks omitted). In the end, the em ployee’s “generalized attacks” on “the adequacy of arbitra tion procedures” were “insufficient to preclude arbitration of statutory claims,” because there was no evi dence that “Congress, in enacting the ADEA, intended to preclude arbitration of claims under that Act,” The Court’s interpretation of the ADEA fully applies in the collective-bargaining context. Nothing in the law suggests a distinction between the status of arbi tration agreements signed by an individual employee and those agreed to by a union representative. This Court has required only that an agreement to arbitrate statutory antidiscrimination claims be “explicitly stated” in the collective-bargaining agreement. (internal quotation marks omitted). The CBA under review here meets that obligation. Respondents incor rectly counter that an individual employee must person ally “waive” a “[substantive] right” to proceed in court for a waiver to be “knowing and voluntary” under the ADEA. 9 U.S. C. As explained below, however, the agreement to arbitrate ADEA claims is not the waiver of a “substantive right” as that term is employed in the ADEA. ; see infra, –16. Indeed, if the “right” referred to in included the prospective waiver of the right to bring an ADEA claim in court, even a waiver signed by an individual employee would be inva lid as the statute also prevents individuals from “waiv[ing] rights or claims that may arise after the date the waiver is executed.” (C).6 —————— 6 Respondents’ contention that of the Civil Rights Act of 19, 10 14 PENN PLAZA LLC v. PYETT Opinion of the Court Examination of the two federal statutes at issue in this case, therefore, yields a straightforward answer to the question presented: The NLRA provided the Union and the RAB with statutory authority to collectively bargain for arbitration of workplace discrimination claims, and Congress did not terminate that authority with respect to federal age-discrimination claims in the ADEA. Accord ingly, there is no legal basis for the Court to strike down the arbitration clause in this CBA, which was freely nego tiated by the Union and the RAB, and which clearly and unmistakably requires respondents to arbitrate the age discrimination claims at issue in this appeal. Congress —————— Pub. L. 10–166, note following 4 U.S. C. (000 ed.), precludes the enforcement of this arbitration agreement also is misplaced. See Brief for Respondents 31–3; see also post, at 8–9 (SOUTER, J., dissenting). Section 118 expresses Congress’ support for alternative dispute resolution: “Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including arbitration, is encouraged to resolve disputes arising under” the ADEA. note following 4 U. S C. Respondents argue that the legislative history actually signals Con gress’ intent to preclude arbitration waivers in the collective-bargaining context. In particular, respondents point to a House Report that, in spite of the statute’s plain language, interprets to support their position. See H. R. Rep. No. 10–40, pt. 1, p. 97 (19) ”). But the legislative history mischaracterizes the holding of Gardner- which does not prohibit collective bargaining for arbitration of ADEA claims. See infra, at 11–14. Moreover, reading the legislative history in the manner suggested by respondents would create a direct conflict with the statutory text, which encourages the use of arbitration for dispute resolution without imposing any constraints on collective bargaining. In such a contest, the text must prevail. See Ratzlaf v. United States, (“[W]e do not resort to legislative history to cloud a statutory text that is clear”). Cite as: 556 U. S. (009) 11 Opinion of the Court has chosen to allow arbitration of ADEA claims. The Judiciary must respect that choice. B The CBA’s arbitration provision is also fully enforceable under the line of cases. Respondents interpret and its progeny to hold that “a union cannot waive an employee’s right to a judicial forum under the federal antidiscrimination statutes” because “allowing the union to waive this right would substitute the union’s interests for the employee’s antidiscrimination rights.” Brief for Respondents 1. The “combination of union control over the process and inherent conflict of interest with respect to discrimination claims,” they argue, “provided the foundation for the Court’s holding [in Gard ner-] that arbitration under a collective-bargaining agreement could not preclude an individual employee’s right to bring a lawsuit in court to vindicate a statutory discrimination claim.” We disagree. 1 The holding of is not as broad as re spondents suggest. The employee in that case was covered by a collective-bargaining agreement that prohibited “discrimination against any employee on account of race, color, religion, sex, national origin, or ancestry” and that guaranteed that “[n]o employee will be discharged except for just cause.” (internal quotation marks omitted). The agreement also included a “multistep griev ance procedure” that culminated in compulsory arbitration for any “differences aris[ing] between the Company and the Union as to the meaning and application of the provisions of this Agreement” and “any trouble aris[ing] in the plant.” at 40–41 (internal quotation marks omitted). The employee was discharged for allegedly producing too many defective parts while working for the respondent 1 14 PENN PLAZA LLC v. PYETT Opinion of the Court as a drill operator. He filed a grievance with his union claiming that he was “ ‘unjustly discharged’ ” in violation of the “ ‘just cause’ ” provision within the CBA. Then at the final prearbitration step of the grievance process, the employee added a claim that he was discharged because of his race. at 38–4. The arbitrator ultimately ruled that the employee had been “ ‘discharged for just cause,’ ” but “made no reference to [the] claim of racial discrimination.” After obtaining a right-to-sue letter from the EEOC, the em ployee filed a claim in Federal District Court, alleging racial discrimination in violation of Title VII of the Civil Rights Act of 1964. The District Court issued a decision, affirmed by the Court of Appeals, which granted summary judgment to the employer because it concluded that “the claim of racial discrimination had been submitted to the arbitrator and resolved adversely to [the employee].” at 43. In the District Court’s view, “having voluntarily elected to pursue his grievance to final arbitration under the nondiscrimination clause of the collective-bargaining agreement,” the employee was “bound by the arbitral decision” and precluded from suing his employer on any other grounds, such as a statutory claim under Title VII. This Court reversed the judgment on the narrow ground that the arbitration was not preclusive because the collec tive-bargaining agreement did not cover statutory claims. As a result, the lower courts erred in relying on the “doc trine of election of remedies” to bar the employee’s Title VII claim. “That doctrine, which refers to situations where an individual pursues remedies that are legally or factually inconsistent” with each other, did not apply to the employee’s dual pursuit of arbitration and a Title VII discrimination claim in district court. The em ployee’s collective-bargaining agreement did not mandate arbitration of statutory antidiscrimination claims. at Cite as: 556 U. S. (009) 13 Opinion of the Court 49–50. “As the proctor of the bargain, the arbitrator’s task is to effectuate the intent of the parties.” Be cause the collective-bargaining agreement gave the arbi trator “authority to resolve only questions of contractual rights,” his decision could not prevent the employee from bringing the Title VII claim in federal court “regardless of whether certain contractual rights are similar to, or dupli cative of, the substantive rights secured by Title VII.” –54; see also The Court also explained that the employee had not waived his right to pursue his Title VII claim in federal court by participating in an arbitration that was premised on the same underlying facts as the Title VII claim. See Thus, whether the legal theory of preclusion advanced by the employer rested on “the doctrines of election of remedies” or was recast “as resting instead on the doctrine of equitable estoppel and on themes of res judicata and collateral estoppel,” n. 10 (internal quotation marks omitted), it could not prevail in light of the collective-bargaining agreement’s failure to address arbitration of Title VII claims. See (“[W]e hold that the federal policy favoring arbitration does not establish that an arbitrator’s resolution of a contractual claim is dispositive of a statutory claim under Title VII” (emphasis added)). The Court’s decisions following have not broadened its holding to make it applicable to the facts of this case. In the Court considered “whether an employee may bring an action in federal district court, alleging a violation of the minimum wage provisions of the Fair Labor Standards Act, after having unsuccessfully submitted a wage claim based on the same underlying facts to a joint grievance committee pursuant to the provisions of his union’s collective bargaining agreement.” at 79–730. The Court held 14 14 PENN PLAZA LLC v. PYETT Opinion of the Court that the unsuccessful arbitration did not preclude the federal lawsuit. Like the collective-bargaining agreement in the arbitration provision under review in did not expressly reference the statutory claim at issue. See n. 5. The Court thus reiterated that an “arbitrator’s power is both derived from, and limited by, the collective-bargaining agreement” and “[h]is task is limited to construing the meaning of the collective-bargaining agreement so as to effectuate the collective intent of the parties.” was decided along similar lines. The question presented in that case was “whether a federal court may accord preclu sive effect to an unappealed arbitration award in a case brought under [4 U.S. C. at The Court declined to fashion such a rule, again explaining that “because an arbitrator’s authority derives solely from the contract, an arbitrator may not have authority to enforce when that provision is left unaddressed by the arbitration agreement. at Accordingly, as in both and Barren the Court’s decision in hinged on the scope of the collective-bargaining agreement and the arbitrator’s parallel mandate. The facts underlying and reveal the narrow scope of the legal rule arising from that trilogy of decisions. Summarizing those opin ions in this Court made clear that the Gardner- line of cases “did not involve the issue of the en forceability of an agreement to arbitrate statutory claims.” 500 U.S., Those decisions instead “involved the quite different issue whether arbitration of contract-based claims precluded subsequent judicial resolution of statu tory claims. Since the employees there had not agreed to arbitrate their statutory claims, and the labor arbitrators were not authorized to resolve such claims, the arbitration Cite as: 556 U. S. (009) 15 Opinion of the Court in those cases understandably was held not to preclude subsequent statutory actions.” ; see also 55 U.S., at 76; n. 17 and its progeny thus do not control the outcome where, as is the case here, the collec tive-bargaining agreement’s arbitration provision ex pressly covers both statutory and contractual discrimina tion claims.8 —————— 7 JUSTICE SOUTER’s reliance on v. Universal Maritime Service to support its view of is misplaced. See post, at 5, 7. identified the “tension” between the two lines of cases represented by and but found “it unnecessary to resolve the question of the validity of a union negotiated waiver, since it [was] apparent on the facts and argu ments presented that no such waiver [had] occurred.” 55 U.S., at 76–77. And although his dissent describes ’s characterization of as “raising a ‘seemingly absolute prohibition of union waiver of employees’ federal forum rights,’ ” post, at 7 (quoting ), it wrenches the statement out of context: “Although [the right to a judicial forum] is not a substantive right, see 500 U.S., and whether or not ’s seemingly absolute prohibition of union waiver of employees’ federal forum rights survives at least stands for the proposition that the right to a federal judicial forum is of sufficient importance to be pro tected against less-than-explicit union waiver in a CBA,” (emphasis added). therefore neither endorsed ’s broad language nor suggested a particular result in this case. 8 Because today’s decision does not contradict the holding of Gardner- we need not resolve the stare decisis concerns raised by the dissenting opinions. See post, at 4, 9 (opinion of SOUTER, J.); post, at – 4 (opinion of STEVENS, J.). But given the development of this Court’s arbitration jurisprudence in the intervening years, see infra, at 16–19, would appear to be a strong candidate for overruling if the dissents’ broad view of its holding, see post, at 6–7 (opinion of SOUTER, J.), were correct. See Patterson v. McLean Credit Union, 4 U.S. 164, 173 (explaining that it is appropriate to overrule a decision where there “has been [an] intervening development of the law” such that the earlier “decision [is] irreconcilable with competing legal doctrines and policies”). 16 14 PENN PLAZA LLC v. PYETT Opinion of the Court We recognize that apart from their narrow holdings, the line of cases included broad dicta that was highly critical of the use of arbitration for the vindica tion of statutory antidiscrimination rights. That skepti cism, however, rested on a misconceived view of arbitra tion that this Court has since abandoned. First, the Court in erroneously as sumed that an agreement to submit statutory discrimina tion claims to arbitration was tantamount to a waiver of those rights. See (“[T]here can be no prospective waiver of an employee’s rights under Title VII” (emphasis added)). For this reason, the Court stated, “the rights conferred [by Title VII] can form no part of the collective-bargaining process since waiver of these rights would defeat the paramount congressional purpose behind Title VII.” ; see also (“we have long recog nized that ‘the choice of forums inevitably affects the scope of the substantive right to be vindicated’ ” (quoting U. S. Bulk Carriers, 359–360 (1971) (Harlan, J., concurring))). The Court was correct in concluding that federal anti discrimination rights may not be prospectively waived, see 9 U.S. C. (C); see but it confused an agreement to arbitrate those statutory claims with a prospective waiver of the substantive right. The decision to resolve ADEA claims by way of arbitration instead of litigation does not waive the statutory right to be free from workplace age discrimination; it waives only the right to seek relief from a court in the first instance. See (“ ‘[B]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbi tral, rather than a judicial, forum’ ” (quoting Mitsubishi Motors 473 U.S., at )). This “Court has been quite specific in holding that arbitration agreements can Cite as: 556 U. S. (009) 17 Opinion of the Court be enforced under the FAA without contravening the policies of congressional enactments giving employees specific protection against discrimination prohibited by federal law.” Circuit City Stores, 53 U.S., at The suggestion in that the decision to arbitrate statutory discrimination claims was tantamount to a substantive waiver of those rights, therefore, reveals a distorted understanding of the compromise made when an employee agrees to compulsory arbitration. In this respect, is a direct descendant of the Court’s decision in which held that an agreement to arbitrate claims under the Securities Act of 1933 was unenforceable. See The Court subsequently overruled Wilko and, in so doing, characterized the decision as “pervaded by ‘the old judicial hostility to arbitration.’ ” Rodriguez de Quijas v. Shearson/Aican Express, 480 The Court added: “To the extent that Wilko rested on suspicion of arbitration as a method of weaken ing the protections afforded in the substantive law to would-be complainants, it has fallen far out of step with our current strong endorsement of the federal statutes favoring this method of resolving disputes.” ; see also Mitsubishi Motors at 66–67 (“[W]e are well past the time when judicial suspicion of the desir ability of arbitration and of the competence of arbitral tribunals inhibited the development of arbitration as an alternative means of dispute resolution”). The timeworn “mistrust of the arbitral process” harbored by the Court in thus weighs against reliance on anything more than its core holding. Shearson/Aican Express v. ; see also n. 5 (reiterating that Gardner- ’s view of arbitration “has been undermined by [the Court’s] recent arbitration decisions”). Indeed, in light of the “radical change, over two decades, in the Court’s re 18 14 PENN PLAZA LLC v. PYETT Opinion of the Court ceptivity to arbitration,” reliance on any judicial decision similarly littered with Wilko’s overt hostility to the enforcement of arbitration agree ments would be ill advised. 9 Second, mistakenly suggested that certain features of arbitration made it a forum “well suited to the resolution of contractual disputes,” but “a compara tively inappropriate forum for the final resolution of rights created by Title VII.” 415 U.S., According to the —————— 9 JUSTICE STEVENS suggests that the Court is displacing its “earlier determination of the relevant provisions’ meaning” based on a “prefer ence for arbitration.” Post, at But his criticism lacks any basis. We are not revisiting a settled issue or disregarding an earlier determina tion; the Court is simply deciding the question identified in as unresolved. See at 5–6; see also infra, at 3–4. And, contrary to JUSTICE STEVENS’ accusation, it is the Court’s fidelity to the ADEA’s text—not an alleged preference for arbitration—that dictates the answer to the question presented. As explained, nothing in the text of Title VII or the ADEA precludes contractual arbitration, see at 8–9, and JUSTICE STEVENS has never suggested otherwise. Rather, he has always contended that permitting the “compulsory arbitration” of employment discrimination claims conflicts with his perception of “the congressional purpose animating the ADEA.” Gil ; see also (“Plainly, it would not comport with the congressional objectives behind a statute seeking to enforce civil rights protected by Title VII to allow the very forces that had practiced discrimination to contract away the right to enforce civil rights in the courts” (internal quotation marks omitted)). The Court did not adopt JUSTICE STEVENS’ personal view of the purposes underlying the ADEA, for good reason: That view is not embodied within the statute’s text. Accordingly, it is not the statutory text that JUSTICE STEVENS has sought to vindicate—it is instead his own “preference” for mandatory judicial review, which he disguises as a search for congressional purpose. This Court is not empowered to incorporate such a preference into the text of a federal statute. See infra, at 0–1. It is for this reason, and not because of a “policy favoring arbitration,” see post, at 1, 3 that the Court overturned And it is why we disavow the antiarbitration dicta of and its progeny today. Cite as: 556 U. S. (009) 19 Opinion of the Court Court, the “factfinding process in arbitration” is “not equivalent to judicial factfinding” and the “informality of arbitral procedure makes arbitration a less appropri ate forum for final resolution of Title VII issues than the federal courts.” The Court also questioned the competence of arbitrators to decide federal statutory claims. See (“[T]he specialized competence of arbitrators pertains primarily to the law of the shop, not the law of the land”); (“Al though an arbitrator may be competent to resolve many preliminary factual questions, such as whether the em ployee ‘punched in’ when he said he did, he may lack competence to decide the ultimate legal issue whether an employee’s right to a minimum wage or to overtime pay under the statute has been violated”). In the Court’s view, “the resolution of statutory or constitutional issues is a primary responsibility of courts, and judicial construction has proved especially necessary with respect to Title VII, whose broad language frequently can be given meaning only by reference to public law concepts.” Gardner- ; see also (“An arbitrator may not have the expertise required to resolve the complex legal questions that arise in actions”). These misconceptions have been corrected. For exam ple, the Court has “recognized that arbitral tribunals are readily capable of handling the factual and legal complexi ties of antitrust claims, notwithstanding the absence of judicial instruction and supervision” and that “there is no reason to assume at the outset that arbitrators will not follow the law.” ; Mitsubishi Motors (“We decline to indulge the presumption that the parties and arbitral body conducting a proceeding will be unable or unwilling to retain compe tent, conscientious, and impartial arbitrators”). An arbi trator’s capacity to resolve complex questions of fact and 0 14 PENN PLAZA LLC v. PYETT Opinion of the Court law extends with equal force to discrimination claims brought under the ADEA. Moreover, the recognition that arbitration procedures are more streamlined than federal litigation is not a basis for finding the forum somehow inadequate; the relative informality of arbitration is one of the chief reasons that parties select arbitration. Parties “trad[e] the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration.” at In any event, “[i]t is unlikely that age discrimination claims require more extensive discovery than other claims that we have found to be arbitrable, such as RICO and antitrust claims.” At bottom, objections centered on the nature of arbitration do not offer a credible basis for dis crediting the choice of that forum to resolve statutory antidiscrimination claims.10 Third, the Court in raised in a footnote a “further concern” regarding “the union’s exclusive con trol over the manner and extent to which an individual grievance is presented.” n. 19. The Court suggested that in arbitration, as in the collective bargaining process, a union may subordinate the interests of an individual employee to the collective interests of all employees in the bargaining unit. ; see also McDon at (“The union’s interests and those of the individual employee are not always identical or even compatible. As a result, the union may present the em ployee’s grievance less vigorously, or make different stra —————— 10 Moreover, an arbitrator’s decision as to whether a unionized em ployee has been discriminated against on the basis of age in violation of the ADEA remains subject to judicial review under the FAA. 9 U.S. C. “[A]lthough judicial scrutiny of arbitration awards necessarily is limited, such review is sufficient to ensure that arbitrators comply with the requirements of the statute.” Shearson/Aican Express v. Cite as: 556 U. S. (009) 1 Opinion of the Court tegic choices, than would the employee”); see also Barren ; post, at 8, n. 4 (SOUTER, J., dissenting). We cannot rely on this judicial policy concern as a source of authority for introducing a qualification into the ADEA that is not found in its text. Absent a constitu tional barrier, “it is not for us to substitute our view of policy for the legislation which has been passed by Con gress.” Florida Dept. of Revenue v. Piccadilly Cafeterias, 554 U. S. (008) (slip op., at 18) (internal quotation marks omitted). Congress is fully equipped “to identify any category of claims as to which agreements to arbitrate will be held unenforceable.” Mitsubishi Motors Until Congress amends the ADEA to meet the conflict-of-interest concern identified in the dicta, and seized on by respondents here, there is “no reason to color the lens through which the arbitration clause is read” simply because of an alleged conflict of interest between a union and its members. Mitsubishi Motors at This is a “battl[e] that should be fought among the political branches and the industry. Those parties should not seek to amend the statute by appeal to the Judicial Branch.” Barnhart v. Sigmon Coal Co., The conflict-of-interest argument also proves too much. Labor unions certainly balance the economic interests of some employees against the needs of the larger work force as they negotiate collective-bargain agreements and im plement them on a daily basis. But this attribute of or ganized labor does not justify singling out an arbitration provision for disfavored treatment. This “principle of majority rule” to which respondents object is in fact the central premise of the NLRA. Emporium Capwell Co. v. Western Addition Community Organization, 6 (19). “In establishing a regime of majority rule, Congress sought to secure to all members of the unit the benefits of their collective strength and bargaining power, 14 PENN PLAZA LLC v. PYETT Opinion of the Court in full awareness that the superior strength of some indi viduals or groups might be subordinated to the interest of the majority.” ; see also Ford Motor (“The complete satisfaction of all who are represented is hardly to be expected”); Pennsylvania R. Co. v. Rychlik, 35 U.S. 480, 498 (1957) (Frankfurter, J., concurring). It was Con gress’ verdict that the benefits of organized labor outweigh the sacrifice of individual liberty that this system neces sarily demands. Respondents’ argument that they were deprived of the right to pursue their ADEA claims in federal court by a labor union with a conflict of interest is therefore unsustainable; it amounts to a collateral attack on the NLRA. In any event, Congress has accounted for this conflict of interest in several ways. As indicated above, the NLRA has been interpreted to impose a “duty of fair representa tion” on labor unions, which a union breaches “when its conduct toward a member of the bargaining unit is arbi trary, discriminatory, or in bad faith.” This duty extends to “chal lenges leveled not only at a union’s contract administra tion and enforcement efforts but at its negotiation activi ties as well.” Thus, a union is subject to liability under the NLRA if it illegally discriminates against older workers in either the formation or governance of the collective-bargaining agree ment, such as by deciding not to pursue a grievance on behalf of one of its members for discriminatory reasons. See (describing the duty of fair representation as the “statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct” (emphasis added)). Respondents in fact brought a fair representation suit against the Union based on its Cite as: 556 U. S. (009) 3 Opinion of the Court withdrawal of support for their age-discrimination claims. See n. Given this avenue that Congress has made available to redress a union’s violation of its duty to its members, it is particularly inappropriate to ask this Court to impose an artificial limitation on the collective bargaining process. In addition, a union is subject to liability under the ADEA if the union itself discriminates against its mem bers on the basis of age. See 9 U.S. C. §63(d); see also 1 B. Lindemann & P. Grossman, Employment Discrimina tion Law 15–1581 (4th ed. 007) (explaining that a labor union may be held jointly liable with an employer under federal antidiscrimination laws for discriminating in the formation of a collective-bargaining agreement, knowingly acquiescing in the employer’s discrimination, or inducing the employer to discriminate); cf. 48 U.S. 656, Union members may also file age-discrimination claims with the EEOC and the National Labor Relations Board, which may then seek judicial intervention under this Court’s precedent. See EEOC v. Waffle House, 534 U.S. 79, 95–96 In sum, Congress has provided remedies for the situation where a labor union is less than vigorous in defense of its members’ claims of discrimination under the ADEA. III Finally, respondents offer a series of arguments con tending that the particular CBA at issue here does not clearly and unmistakably require them to arbitrate their ADEA claims. See Brief for Respondents –47. But respondents did not raise these contract-based arguments in the District Court or the Court of Appeals. To the contrary, respondents acknowledged on appeal that the CBA provision requiring arbitration of their federal anti discrimination statutory claims “is sufficiently explicit” in 4 14 PENN PLAZA LLC v. PYETT Opinion of the Court precluding their federal lawsuit. Brief for Plaintiffs- Appellees in No. 06–3047–cv(L) etc. (CA), p. 9. In light of respondents’ litigating position, both lower courts assumed that the CBA’s arbitration clause clearly applied to re spondents and proceeded to decide the question left unre solved in We granted review of the question presented on that understanding. “Without cross-petitioning for certiorari, a prevailing party may, of course, ‘defend its judgment on any ground properly raised below whether or not that ground was relied upon, rejected, or even considered by the District Court or the Court of Appeals.’ ” Granfinanciera, S. A. v. 49 U.S. 33, (quoting Washington v. Confederated Bands and Tribes of Yakima Nation, 439 U.S. 463, 476, n. 0 (1979)). But this Court will affirm on grounds that have “ ‘not been raised below “only in exceptional cases.” ’ ” ). This is not an “exceptional case.” As a result, we find that respondents’ alternative arguments for affirmance have been forfeited. See, e.g., Rita v. United States, 551 U.S. 360 (007); Sprietsma v. Mercury Marine, 537 U.S. 51, 56, n. 4 We will not resurrect them on respon dents’ behalf. Respondents also argue that the CBA operates as a substantive waiver of their ADEA rights because it not only precludes a federal lawsuit, but also allows the Union to block arbitration of these claims. Brief for Respondents 8–30. Petitioners contest this characterization of the CBA, see Reply Brief for Petitioners 3–7, and offer record evidence suggesting that the Union has allowed respondents to continue with the arbitration even though the Union has declined to participate, see App. to Pet. for Cert. 4a. But not only does this question require resolu tion of contested factual allegations, it was not fully briefed to this or any court and is not fairly encompassed Cite as: 556 U. S. (009) 5 Opinion of the Court within the question presented, see this Court’s Rule 14.1(a). Thus, although a substantive waiver of federally protected civil rights will not be upheld, see Mitsubishi Motors and n. 19; 500 U.S., at 9, we are not positioned to resolve in the first instance whether the CBA allows the Union to prevent respondents from “effectively vindicating” their “federal statutory rights in the arbitral forum,” Green Tree Finan cial -Ala. v. Randolph, (000). Reso lution of this question at this juncture would be particu larly inappropriate in light of our hesitation to invalidate arbitration agreements on the basis of speculation. See at IV We hold that a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of fed eral law. The judgment of the Court of Appeals is re versed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 556 U. S. (009) 1 STEVENS, J., dissenting SUPREME COURT OF THE UNITED STATES No. 07–581 14 PENN PLAZA LLC, ET AL., PETITIONERS v. STEVEN PYETT ET AL. |
Justice Thomas | dissenting | false | Tennessee Student Assistance Corporation v. Hood | 2004-05-17T00:00:00 | null | https://www.courtlistener.com/opinion/134741/tennessee-student-assistance-corporation-v-hood/ | https://www.courtlistener.com/api/rest/v3/clusters/134741/ | 2,004 | 2003-057 | 2 | 7 | 2 | We granted certiorari in this case to decide whether Congress has the authority to abrogate state sovereign immunity under the Bankruptcy Clause. 539 U.S. 986 (2003). Instead of answering this question, the Court addresses a more difficult one regarding the extent to which a bankruptcy court's exercise of its in rem jurisdiction could offend the sovereignty of a creditor-State. I recognize that, as the Court concludes today, the in rem nature of bankruptcy proceedings might affect the ability of a debtor to obtain, by motion, a bankruptcy court determination that affects a creditor-State's rights, but I would not reach this difficult question here. Even if the Bankruptcy Court could have exercised its in rem jurisdiction to make an undue hardship determination by motion, I cannot ignore the fact that the determination in this case was sought pursuant to an adversary proceeding. Under Federal Maritime Comm'n v. *456 South Carolina Ports Authority, 535 U.S. 743 (2002), the adversary proceeding here clearly constitutes a suit against the State for sovereign immunity purposes. I would thus reach the easier question presented and conclude that Congress lacks authority to abrogate state sovereign immunity under the Bankruptcy Clause.
I
The Court avoids addressing respondent's principal argument which was the basis for the Court of Appeals' decision and which this Court granted certiorari in order to address namely, that Congress possesses the power under the Bankruptcy Clause to abrogate a State's sovereign immunity from suit. Instead, the Court affirms the judgment of the Court of Appeals based on respondent's alternative argument, ante, at 445, that the Bankruptcy Court's decision was "an appropriate exercise of [its] in rem jurisdiction," Brief for Respondent 35. Although respondent advanced this argument in the proceedings before the Bankruptcy Appellate Panel of the Sixth Circuit, Brief for Appellee in No. 00-8062, p. 8, she declined to do so in the Court of Appeals. Indeed, before that court, respondent relied entirely on Congress' ability to abrogate state sovereign immunity under the Bankruptcy Clause rather than on any in rem theory because, under her reading of Missouri v. Fiske, 290 U.S. 18 (1933), "there is no in rem exception to a state's Eleventh Amendment immunity" in bankruptcy. Brief for Appellee in No. 01-5769 (CA6), p. 24. Furthermore, respondent did not raise the in rem argument in her brief in opposition before this Court. Under this Court's Rule 15.2, we may deem this argument waived. Caterpillar Inc. v. Lewis, 519 U.S. 61, 75, n. 13 (1996). And, we should do so here both because the argument is irrelevant to this case, and because the in rem question is both complex and uncertain, see Baldwin v. Reese, ante, p. 27.
*457 A
In Federal Maritime Comm'n, South Carolina Maritime Services, Inc. (SCMS), filed a complaint with the Federal Maritime Commission (FMC), an independent agency, alleging that a state-run port had violated the Shipping Act of 1984, 46 U.S. C. App. § 1701 et seq. We assumed without deciding that the FMC does not exercise "judicial power," 535 U.S., at 754, and nonetheless held that state sovereign immunity barred the adjudication of SCMS' complaint. Id., at 769.
Federal Maritime Comm'n turned on the "overwhelming" similarities between FMC proceedings and civil litigation in federal courts. Id., at 759. For example, FMC's rules governing pleadings and discovery are very similar to the analogous Federal Rules of Civil Procedure. Id., at 757-758. Moreover, we noted that "the role of the [administrative law judge], the impartial officer designated to hear a case, is similar to that of an Article III judge." Id., at 758 (footnote and citation omitted). Based on these similarities, we held that, for purposes of state sovereign immunity, the adjudication before the FMC was indistinguishable from an adjudication in an Article III tribunal. See id., at 760-761. Thus, Federal Maritime Comm'n recognized that if the Framers would have found it an "impermissible affront to a State's dignity to be required to answer the complaints of private parties in federal courts," the Framers would have found it equally impermissible to compel States to do so simply because the adjudication takes place in an Article I rather than an Article III court. Ibid.
Although the Court ignores Federal Maritime Comm'n altogether, its reasoning applies to this case. The similarities between adversary proceedings in bankruptcy and federal civil litigation are striking. Indeed, the Federal Rules of Civil Procedure govern adversary proceedings in substantial part. The proceedings are commenced by the filing of a complaint, Fed. Rule Bkrtcy. Proc. 7003; process is served, *458 Rule 7005; the opposing party is required to file an answer, Rule 7007; and the opposing party can file counterclaims against the movant, Rule 7013. Federal Rule of Civil Procedure 8 applies to the parties' pleadings. Fed. Rule Bkrtcy. Proc. 7008. Even the form of the parties' pleadings must comply with the federal rules for civil litigation. Rule 7010. "Likewise, discovery in [adversary proceedings] largely mirrors discovery in federal civil litigation." Federal Maritime Comm'n, supra, at 758. See Fed. Rules Bkrtcy. Proc. 7026-7037 (applying Fed. Rules Civ. Proc. 26-37 to adversary proceedings). And, when a party fails to answer or appear in an adversary proceeding, the Federal Rule governing default judgments applies. Fed. Rule Bkrtcy. Proc. 7055 (adopting Fed. Rule Civ. Proc. 55).
In spite of these similarities, the Court concludes that, because the bankruptcy court's jurisdiction is premised on the res, the issuance of process in this case, as opposed to all others, does not subject an unwilling State to a coercive judicial process. Ante, at 452. The Court also views the adversary proceeding in this case differently than a typical adversary proceeding because, absent Federal Rule of Bankruptcy Procedure 7001(6), the Court concludes that a debtor could obtain an undue hardship determination by motion consistent with a bankruptcy court's in rem jurisdiction and consistent with the Constitution. See ante, at 453.
Critically, however, the Court fails to explain why, simply because it asserts that this determination could have been made by motion, the adversary proceeding utilized in this case is somehow less offensive to state sovereignty. After all, "[t]he very object and purpose of the 11th Amendment [is] to prevent the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties." In re Ayers, 123 U.S. 443, 505 (1887); Federal Maritime Comm'n, supra, at 760; Alden v. Maine, 527 U.S. 706, 748 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 58 (1996). The fact that an alternative proceeding exists, *459 the use of which might not be offensive to state sovereignty, is irrelevant to whether the particular proceeding actually used subjects a particular State to the indignities of coercive process. Indeed, the dissent in Federal Maritime Comm'n, much like the Court today, focused on the fact that the FMC was not required by statute to evaluate complaints through agency adjudication, 535 U.S., at 774-776 (opinion of BREYER, J.), and could have opted to evaluate complaints in some other manner. But this fact had no bearing on our decision in that case, nor should it control here. I simply cannot ignore the fact that respondent filed a complaint in the Bankruptcy Court "pray[ing] that proper process issue and that upon a hearing upon the merits that [the court] issue a judgment for [respondent] and against [petitioner] allowing [respondent's] debt to be discharged." Complaint for Hardship Discharge in No. 99-22606-K, Adversary No. 99-0847 (Bkrtcy. Ct. WD Tenn.), p. 1.
More importantly, although the adversary proceeding in this case does not require the State to "defend itself" against petitioner in the ordinary sense, the effect is the same, whether done by adversary proceeding or by motion, and whether the proceeding is in personam or in rem. In order to preserve its rights, the State is compelled either to subject itself to the Bankruptcy Court's jurisdiction or to forfeit its rights. And, whatever the nature of the Bankruptcy Court's jurisdiction, it maintains at least as much control over nonconsenting States as the FMC, which lacks the power to enforce its own orders. Federal Maritime Comm'n rejected the view that the FMC's lack of enforcement power means that parties are not coerced to participate in its proceedings because the effect is the same a State must submit to the adjudication or compromise its ability to defend itself in later proceedings. 535 U.S., at 761-764. Here, if the State does not oppose the debtor's claim of undue hardship, the Bankruptcy Court is authorized to enter a default judgment without making an undue hardship determination. *460 See Fed. Rules Bkrtcy. Proc. 7055, 9014 (adopting Fed. Rule Civ. Proc. 55 in both adversary proceedings and in contested matters governed by motion). The Court apparently concludes otherwise, but, tellingly, its only support for that questionable proposition is a statement made at oral argument. See ante, at 453-454.
As I explain in Part I-B, infra, I do not contest the assertion that in bankruptcy, like admiralty, there might be a limited in rem exception to state sovereign immunity from suit. Nor do I necessarily reject the argument that this proceeding could have been resolved by motion without offending the dignity of the State. However, because this case did not proceed by motion, I cannot resolve the merits based solely upon what might have, but did not, occur. I would therefore hold that the adversary proceeding in this case constituted a suit against the State for sovereign immunity purposes.
B
The difficulty and complexity of the question of the scope of the Bankruptcy Court's in rem jurisdiction as it relates to a State's interests is a further reason that the Court should not address the question here without complete briefing and full consideration by the Court of Appeals.
Relying on this Court's recent recognition of a limited in rem exception to state sovereign immunity in certain admiralty actions, see California v. Deep Sea Research, Inc., 523 U.S. 491 (1998), the Court recognizes that "States . . . may still be bound by some judicial actions without their consent," ante, at 446. The Court then acknowledges the undisputed fact that bankruptcy discharge proceedings are in rem proceedings. Ante, at 447. These facts, however, standing alone, do not compel the conclusion that the in rem exception should extend to this case.
Deep Sea Research, supra, does not make clear the extent of the in rem exception in admiralty, much less its potential application in bankruptcy. The Court's recognition of an in *461 rem exception to state sovereign immunity in admiralty actions was informed, in part, by Justice Story's understanding of the difference between admiralty actions and regular civil litigation. Justice Story doubted whether the Eleventh Amendment extended to admiralty and maritime suits at all because, in admiralty, "the jurisdiction of the [federal] court is founded upon the possession of the thing; and if the State should interpose a claim for the property, it does not act merely in the character of a defendant, but as an actor." 2 Commentaries on the Constitution of the United States § 1689, p. 491 (5th ed. 1891). Justice Story supported this view by contrasting suits in law or equity with suits in admiralty, which received a separate grant of jurisdiction under Article III. Id., at 491-492. The Court, however, has since adopted a more narrow understanding of the in rem maritime exception. See Ex parte New York, 256 U.S. 490, 497 (1921) ("Nor is the admiralty and maritime jurisdiction exempt from the operation of the rule [that a State may not be sued without its consent]"). Thus, our holding in Deep Sea Research was limited to actions where the res is not within the State's possession. 523 U.S., at 507-508.
Whatever the scope of the in rem exception in admiralty, the Court's cases reveal no clear principle to govern which, if any, bankruptcy suits are exempt from the Eleventh Amendment's bar. In Fiske, 290 U. S., at 28, the Court stated in no uncertain terms that "[t]he fact that a suit in a federal court is in rem, or quasi in rem, furnishes no ground for the issue of process against a non-consenting State." The Court contends that Fiske supports its argument because there the Court "noted the State might still be bound by the federal court's adjudication even if an injunction could not issue." Ante, at 449, n. 4. But the Court in Fiske also suggested that the State might not be bound by the federal court's adjudication a more weighty proposition given the circumstances of the case. Fiske, in part, involved the validity of a federal-court decree entered in 1927, which determined *462 that Sophie Franz had only a life interest in certain shares of stock previously held by her deceased husband. When Franz died in 1930, Franz's executor did not inventory the shares because the federal-court decree declared Franz to have only a life interest in them. The dispute arose because the State sought to inventory those shares as assets of Franz's estate so that it could collect inheritance taxes on those shares. Although Fiske did not decide whether the 1927 federal decree was binding on the State, 290 U.S., at 29, the mere suggestion that the State might not be bound by the decree because it was not a party to an in rem proceeding in which it had no interest, see ibid., at least leaves in doubt the extent of any in rem exception in bankruptcy.
Our more recent decision in United States v. Nordic Village, Inc., 503 U.S. 30 (1992), casts some doubt upon the Court's characterization of any in rem exception in bankruptcy. Nordic Village explicitly recognized that "we have never applied an in rem exception to the sovereign-immunity bar against monetary recovery, and have suggested that no such exception exists." Id., at 38. Although Nordic Village involved the sovereign immunity of the Federal Government, it also supports the argument that no in rem exception exists for other types of relief against a State. Nordic Village interpreted 11 U.S. C. § 106(c) to waive claims for declaratory and injunctive, though not monetary, relief against the Government. 503 U.S., at 34-37. We noted that this interpretation did not render § 106(c) irrelevant because a waiver of immunity with respect to claims for declaratory and injunctive relief would "perform a significant function" by "permit[ing] a bankruptcy court to determine the amount and dischargeability of an estate's liability to the Government . . . whether or not the Government filed a proof of claim." Id., at 36. Our interpretation of § 106(c) to waive liability only for declaratory and injunctive relief strongly suggests that such a waiver is necessary i. e., that without the waiver, despite the bankruptcy court's in rem jurisdiction, *463 the bankruptcy court could not order declaratory or injunctive relief against a State without the State's consent. Cf. Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 553, n. 11 (2002).
To be sure, the Court has previously held that a State can be bound by a bankruptcy court adjudication that affects a State's interest. See New York v. Irving Trust Co., 288 U.S. 329 (1933); Van Huffel v. Harkelrode, 284 U.S. 225 (1931). But, in neither of those cases did the Court attempt to undertake a sovereign immunity analysis. Irving Trust, for instance, rested on Congress' "power to establish uniform laws on the subject of bankruptcies," 288 U.S., at 331, and the need for "orderly and expeditious proceedings," id., at 333. And in Van Huffel, the Court appeared to rest its decision more on "the requirements of bankruptcy administration," 284 U.S., at 228, than the effect of the in rem nature of the proceedings on state sovereign immunity.[*] Perhaps recognizing that these precedents cannot support the weight of its reasoning, the Court attempts to limit its holding by explicitly declining to find an in rem exception to every exercise of a bankruptcy court's in rem jurisdiction that might offend state sovereignty, ante, at 451, n. 5. But, I can find no principle in the Court's opinion to distinguish this case from any other. For this reason, I would not undertake this complicated inquiry.
II
Congress has made its intent to abrogate state sovereign immunity under the Bankruptcy Clause clear. See 11 U.S. C. § 106(a). The only question, then, is whether the Bankruptcy Clause grants Congress the power to do so. *464 This Court has repeatedly stated that "Congress may not . . . base its abrogation of the States' Eleventh Amendment immunity upon the powers enumerated in Article I." Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 364 (2001). See also, e. g., Kimel v. Florida Bd. of Regents, 528 U.S. 62, 80 (2000) ("Congress' powers under Article I of the Constitution do not include the power to subject States to suit at the hands of private individuals"); Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627, 636 (1999) ("Seminole Tribe makes clear that Congress may not abrogate state sovereign immunity pursuant to its Article I powers").
Despite the clarity of these statements, the Court of Appeals held that the Bankruptcy Clause operates differently from Congress' other Article I powers because of its "uniformity requirement," 319 F.3d 755, 764 (CA6 2003). Our discussions of Congress' inability to abrogate state sovereign immunity through the use of its Article I powers reveal no such limitation. I would therefore reverse the judgment of the Court of Appeals.
For the foregoing reasons, I respectfully dissent.
| We grated certiorari i this case to decide whether Cogress has the authority to abrogate state sovereig immuity uder the Bakruptcy Clause. Istead of aswerig this questio, the Court addresses a more difficult oe regardig the extet to which a bakruptcy court's exercise of its i rem jurisdictio could offed the sovereigty of a creditor-State. I recogize that, as the Court cocludes today, the i rem ature of bakruptcy proceedigs might affect the ability of a debtor to obtai, by motio, a bakruptcy court determiatio that affects a creditor-State's rights, but I would ot reach this difficult questio here. Eve if the Bakruptcy Court could have exercised its i rem jurisdictio to make a udue hardship determiatio by motio, I caot igore the fact that the determiatio i this case was sought pursuat to a adversary proceedig. Uder Federal Maritime the adversary proceedig here clearly costitutes a suit agaist the State for sovereig immuity purposes. I would thus reach the easier questio preseted ad coclude that Cogress lacks authority to abrogate state sovereig immuity uder the Bakruptcy Clause. I The Court avoids addressig respodet's pricipal argumet which was the basis for the Court of Appeals' decisio ad which this Court grated certiorari i order to address amely, that Cogress possesses the power uder the Bakruptcy Clause to abrogate a State's sovereig immuity from suit. Istead, the Court affirms the judgmet of the Court of Appeals based o respodet's alterative argumet, ate, at 445, that the Bakruptcy Court's decisio was "a appropriate exercise of [its] i rem jurisdictio," Brief for Respodet 35. Although respodet advaced this argumet i the proceedigs before the Bakruptcy Appellate Pael of the Sixth Circuit, Brief for Appellee i No. 00-62, p. 8, she declied to do so i the Court of Appeals. Ideed, before that court, respodet relied etirely o Cogress' ability to abrogate state sovereig immuity uder the Bakruptcy Clause rather tha o ay i rem theory because, uder her readig of "there is o i rem exceptio to a state's Eleveth Amedmet immuity" i bakruptcy. Brief for Appellee i No. 01-5769 (CA6), p. 24. Furthermore, respodet did ot raise the i rem argumet i her brief i oppositio before this Court. Uder this Court's Rule 15.2, we may deem this argumet waived. Caterpillar Ad, we should do so here both because the argumet is irrelevat to this case, ad because the i rem questio is both complex ad ucertai, see Baldwi v. Reese, ate, p. 27. *457 A I Federal Maritime Comm', South Carolia Maritime Services, Ic. (SCMS), filed a complait with the Federal Maritime Commissio (FMC), a idepedet agecy, allegig that a state-ru port had violated the Shippig Act of 1984, 46 U.S. C. App. 1701 et seq. We assumed without decidig that the FMC does ot exercise "judicial power," ad oetheless held that state sovereig immuity barred the adjudicatio of SCMS' complait. Federal Maritime Comm' tured o the "overwhelmig" similarities betwee FMC proceedigs ad civil litigatio i federal courts. For example, FMC's rules goverig pleadigs ad discovery are very similar to the aalogous Federal Rules of Civil Procedure. Moreover, we oted that "the role of the [admiistrative law judge], the impartial officer desigated to hear a case, is similar to that of a Article III judge." Based o these similarities, we held that, for purposes of state sovereig immuity, the adjudicatio before the FMC was idistiguishable from a adjudicatio i a Article III tribual. See Thus, Federal Maritime Comm' recogized that if the Framers would have foud it a "impermissible affrot to a State's digity to be required to aswer the complaits of private parties i federal courts," the Framers would have foud it equally impermissible to compel States to do so simply because the adjudicatio takes place i a Article I rather tha a Article III court. Although the Court igores Federal Maritime Comm' altogether, its reasoig applies to this case. The similarities betwee adversary proceedigs i bakruptcy ad federal civil litigatio are strikig. Ideed, the Federal Rules of Civil Procedure gover adversary proceedigs i substatial part. The proceedigs are commeced by the filig of a complait, Fed. Rule Bkrtcy. Proc. 7003; process is served, *4 Rule 7005; the opposig party is required to file a aswer, Rule 7007; ad the opposig party ca file couterclaims agaist the movat, Rule 7013. Federal Rule of Civil Procedure 8 applies to the parties' pleadigs. Fed. Rule Bkrtcy. Proc. 7008. Eve the form of the parties' pleadigs must comply with the federal rules for civil litigatio. Rule 7010. "Likewise, discovery i [adversary proceedigs] largely mirrors discovery i federal civil litigatio." Federal Maritime Comm', See Fed. Rules Bkrtcy. Proc. 7026-7037 (applyig Fed. Rules Civ. Proc. 26-37 to adversary proceedigs). Ad, whe a party fails to aswer or appear i a adversary proceedig, the Federal Rule goverig default judgmets applies. Fed. Rule Bkrtcy. Proc. 7055 (adoptig Fed. Rule Civ. Proc. 55). I spite of these similarities, the Court cocludes that, because the bakruptcy court's jurisdictio is premised o the res, the issuace of process i this case, as opposed to all others, does ot subject a uwillig State to a coercive judicial process. Ate, at 452. The Court also views the adversary proceedig i this case differetly tha a typical adversary proceedig because, abset Federal Rule of Bakruptcy Procedure 7001(6), the Court cocludes that a debtor could obtai a udue hardship determiatio by motio cosistet with a bakruptcy court's i rem jurisdictio ad cosistet with the Costitutio. See ate, at 453. Critically, however, the Court fails to explai why, simply because it asserts that this determiatio could have bee made by motio, the adversary proceedig utilized i this case is somehow less offesive to state sovereigty. After all, "[t]he very object ad purpose of the 11th Amedmet [is] to prevet the idigity of subjectig a State to the coercive process of judicial tribuals at the istace of private parties." I re Ayers, ; Federal Maritime Comm', ; Alde v. Maie, ; Semiole Tribe of The fact that a alterative proceedig exists, *459 the use of which might ot be offesive to state sovereigty, is irrelevat to whether the particular proceedig actually used subjects a particular State to the idigities of coercive process. Ideed, the disset i Federal Maritime Comm', much like the Court today, focused o the fact that the FMC was ot required by statute to evaluate complaits through agecy adjudicatio, -776 (opiio of BREYER, J.), ad could have opted to evaluate complaits i some other maer. But this fact had o bearig o our decisio i that case, or should it cotrol here. I simply caot igore the fact that respodet filed a complait i the Bakruptcy Court "pray[ig] that proper process issue ad that upo a hearig upo the merits that [the court] issue a judgmet for [respodet] ad agaist [petitioer] allowig [respodet's] debt to be discharged." Complait for Hardship Discharge i No. 99-22606-K, Adversary No. 99-0847 (Bkrtcy. Ct. WD Te.), p. 1. More importatly, although the adversary proceedig i this case does ot require the State to "defed itself" agaist petitioer i the ordiary sese, the effect is the same, whether doe by adversary proceedig or by motio, ad whether the proceedig is i persoam or i rem. I order to preserve its rights, the State is compelled either to subject itself to the Bakruptcy Court's jurisdictio or to forfeit its rights. Ad, whatever the ature of the Bakruptcy Court's jurisdictio, it maitais at least as much cotrol over ocosetig States as the FMC, which lacks the power to eforce its ow orders. Federal Maritime Comm' rejected the view that the FMC's lack of eforcemet power meas that parties are ot coerced to participate i its proceedigs because the effect is the same a State must submit to the adjudicatio or compromise its ability to defed itself i later proceedigs. -. Here, if the State does ot oppose the debtor's claim of udue hardship, the Bakruptcy Court is authorized to eter a default judgmet without makig a udue hardship determiatio. *460 See Fed. Rules Bkrtcy. Proc. 7055, 9014 (adoptig Fed. Rule Civ. Proc. 55 i both adversary proceedigs ad i cotested matters govered by motio). The Court apparetly cocludes otherwise, but, telligly, its oly support for that questioable propositio is a statemet made at oral argumet. See ate, at 453-454. As I explai i Part I-B, ifra, I do ot cotest the assertio that i bakruptcy, like admiralty, there might be a limited i rem exceptio to state sovereig immuity from suit. Nor do I ecessarily reject the argumet that this proceedig could have bee resolved by motio without offedig the digity of the State. However, because this case did ot proceed by motio, I caot resolve the merits based solely upo what might have, but did ot, occur. I would therefore hold that the adversary proceedig i this case costituted a suit agaist the State for sovereig immuity purposes. B The difficulty ad complexity of the questio of the scope of the Bakruptcy Court's i rem jurisdictio as it relates to a State's iterests is a further reaso that the Court should ot address the questio here without complete briefig ad full cosideratio by the Court of Appeals. Relyig o this Court's recet recogitio of a limited i rem exceptio to state sovereig immuity i certai admiralty actios, see Califoria v. Deep Sea Ic., the Court recogizes that "States may still be boud by some judicial actios without their coset," ate, at 446. The Court the ackowledges the udisputed fact that bakruptcy discharge proceedigs are i rem proceedigs. Ate, at 447. These facts, however, stadig aloe, do ot compel the coclusio that the i rem exceptio should exted to this case. Deep Sea does ot make clear the extet of the i rem exceptio i admiralty, much less its potetial applicatio i bakruptcy. The Court's recogitio of a i *461 rem exceptio to state sovereig immuity i admiralty actios was iformed, i part, by Justice Story's uderstadig of the differece betwee admiralty actios ad regular civil litigatio. Justice Story doubted whether the Eleveth Amedmet exteded to admiralty ad maritime suits at all because, i admiralty, "the jurisdictio of the [federal] court is fouded upo the possessio of the thig; ad if the State should iterpose a claim for the property, it does ot act merely i the character of a defedat, but as a actor." 2 Commetaries o the Costitutio of the Uited States 1689, p. 491 (5th ed. 1891). Justice Story supported this view by cotrastig suits i law or equity with suits i admiralty, which received a separate grat of jurisdictio uder Article III. The Court, however, has sice adopted a more arrow uderstadig of the i rem maritime exceptio. See Ex parte New York, ("Nor is the admiralty ad maritime jurisdictio exempt from the operatio of the rule [that a State may ot be sued without its coset]"). Thus, our holdig i Deep Sea was limited to actios where the res is ot withi the State's possessio. -508. Whatever the scope of the i rem exceptio i admiralty, the Court's cases reveal o clear priciple to gover which, if ay, bakruptcy suits are exempt from the Eleveth Amedmet's bar. I the Court stated i o ucertai terms that "[t]he fact that a suit i a federal court is i rem, or quasi i rem, furishes o groud for the issue of process agaist a o-cosetig State." The Court coteds that supports its argumet because there the Court "oted the State might still be boud by the federal court's adjudicatio eve if a ijuctio could ot issue." Ate, at 449, 4. But the Court i also suggested that the State might ot be boud by the federal court's adjudicatio a more weighty propositio give the circumstaces of the case. i part, ivolved the validity of a federal-court decree etered i 1927, which determied *462 that Sophie Fraz had oly a life iterest i certai shares of stock previously held by her deceased husbad. Whe Fraz died i 1930, Fraz's executor did ot ivetory the shares because the federal-court decree declared Fraz to have oly a life iterest i them. The dispute arose because the State sought to ivetory those shares as assets of Fraz's estate so that it could collect iheritace taxes o those shares. Although did ot decide whether the 1927 federal decree was bidig o the State, the mere suggestio that the State might ot be boud by the decree because it was ot a party to a i rem proceedig i which it had o iterest, see ib at least leaves i doubt the extet of ay i rem exceptio i bakruptcy. Our more recet decisio i Uited States v. Nordic Village, Ic., casts some doubt upo the Court's characterizatio of ay i rem exceptio i bakruptcy. Nordic Village explicitly recogized that "we have ever applied a i rem exceptio to the sovereig-immuity bar agaist moetary recovery, ad have suggested that o such exceptio exists." Although Nordic Village ivolved the sovereig immuity of the Federal Govermet, it also supports the argumet that o i rem exceptio exists for other types of relief agaist a State. Nordic Village iterpreted 11 U.S. C. 106(c) to waive claims for declaratory ad ijuctive, though ot moetary, relief agaist the Govermet. -37. We oted that this iterpretatio did ot reder 106(c) irrelevat because a waiver of immuity with respect to claims for declaratory ad ijuctive relief would "perform a sigificat fuctio" by "permit[ig] a bakruptcy court to determie the amout ad dischargeability of a estate's liability to the Govermet whether or ot the Govermet filed a proof of claim." Our iterpretatio of 106(c) to waive liability oly for declaratory ad ijuctive relief strogly suggests that such a waiver is ecessary i. e., that without the waiver, despite the bakruptcy court's i rem jurisdictio, *463 the bakruptcy court could ot order declaratory or ijuctive relief agaist a State without the State's coset. Cf. Raygor v. Regets of Uiv. of Mi., 553, 11 To be sure, the Court has previously held that a State ca be boud by a bakruptcy court adjudicatio that affects a State's iterest. See New York v. Irvig Trust Co., ; Va But, i either of those cases did the Court attempt to udertake a sovereig immuity aalysis. Irvig Trust, for istace, rested o Cogress' "power to establish uiform laws o the subject of bakruptcies," ad the eed for "orderly ad expeditious proceedigs," Ad i Va Huffel, the Court appeared to rest its decisio more o "the requiremets of bakruptcy admiistratio," tha the effect of the i rem ature of the proceedigs o state sovereig immuity.[*] Perhaps recogizig that these precedets caot support the weight of its reasoig, the Court attempts to limit its holdig by explicitly decliig to fid a i rem exceptio to every exercise of a bakruptcy court's i rem jurisdictio that might offed state sovereigty, ate, at 451, 5. But, I ca fid o priciple i the Court's opiio to distiguish this case from ay other. For this reaso, I would ot udertake this complicated iquiry. II Cogress has made its itet to abrogate state sovereig immuity uder the Bakruptcy Clause clear. See 11 U.S. C. 106(a). The oly questio, the, is whether the Bakruptcy Clause grats Cogress the power to do so. *464 This Court has repeatedly stated that "Cogress may ot base its abrogatio of the States' Eleveth Amedmet immuity upo the powers eumerated i Article I." Board of Trustees of Uiv. of See also, e. g., Kimel v. Florida Bd. of Regets, ("Cogress' powers uder Article I of the Costitutio do ot iclude the power to subject States to suit at the hads of private idividuals"); Florida Prepaid Postsecodary Ed. Expese Bd. v. College Savigs Bak, ("Semiole Tribe makes clear that Cogress may ot abrogate state sovereig immuity pursuat to its Article I powers"). Despite the clarity of these statemets, the Court of Appeals held that the Bakruptcy Clause operates differetly from Cogress' other Article I powers because of its "uiformity requiremet," Our discussios of Cogress' iability to abrogate state sovereig immuity through the use of its Article I powers reveal o such limitatio. I would therefore reverse the judgmet of the Court of Appeals. For the foregoig reasos, I respectfully disset. |
Justice Stevens | second_dissenting | false | Murray v. United States | 1988-06-27T00:00:00 | null | https://www.courtlistener.com/opinion/112136/murray-v-united-states/ | https://www.courtlistener.com/api/rest/v3/clusters/112136/ | 1,988 | 1987-146 | 1 | 4 | 3 | While I join JUSTICE MARSHALL's opinion explaining why the majority's extension of the Court's holding in Segura v. United States, 468 U.S. 796 (1984), "emasculates the Warrant Clause and provides an intolerable incentive for warrantless searches," ante this page, I remain convinced that the Segura decision itself was unacceptable because, even then, it was obvious that it would "provide government agents with an affirmative incentive to engage in unconstitutional violations of the privacy of the home," 468 U.S., at 817 (dissenting opinion). I fear that the Court has taken another unfortunate step down the path to a system of "law enforcement unfettered by process concerns." Patterson v. Illinois, ante, at 305 (STEVENS, J., dissenting). In due course, I trust it will pause long enough to remember that "the efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land." Weeks v. United States, 232 U.S. 383, 393-394 (1914).
| While I join JUSTICE MARSHALL's opinion explaining why the majority's extension of the Court's holding in "emasculates the Warrant Clause and provides an intolerable incentive for warrantless searches," ante this page, I remain convinced that the Segura decision itself was unacceptable because, even then, it was obvious that it would "provide government agents with an affirmative incentive to engage in unconstitutional violations of the privacy of the home," I fear that the Court has taken another unfortunate step down the path to a system of "law enforcement unfettered by process concerns." Patterson v. Illinois, ante, at 305 (STEVENS, J., dissenting). In due course, I trust it will pause long enough to remember that "the efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land." |
Justice Scalia | majority | false | Owen v. Owen | 1991-05-28T00:00:00 | null | https://www.courtlistener.com/opinion/112598/owen-v-owen/ | https://www.courtlistener.com/api/rest/v3/clusters/112598/ | 1,991 | 1990-082 | 2 | 8 | 1 | The Bankruptcy Code allows the States to define what property a debtor may exempt from the bankruptcy estate that will be distributed among his creditors. 11 U.S. C. § 522(b). The Code also provides that judicial liens encumbering exempt property can be eliminated. § 522(f). The question in this case is whether that elimination can operate when the State has defined the exempt property in such a way as specifically to exclude property encumbered by judicial liens.
I
In 1975, Helen Owen, the respondent, obtained a judgment against petitioner Dwight Owen, her former husband, for approximately $160,000. The judgment was recorded in Sarasota County, Florida, in July 1976. Petitioner did not at that time own any property in Sarasota County, but under *307 Florida law, the judgment would attach to any after-acquired property recorded in the county. B. A. Lott, Inc. v. Padgett, 153 Fla. 304, 14 So. 2d 667 (1943). In 1984, petitioner purchased a condominium in Sarasota County; upon acquisition of title, the property became subject to respondent's judgment lien. Porter-Mallard Co. v. Dugger, 117 Fla. 137, 157 So. 429 (1934).
One year later, Florida amended its homestead law so that petitioner's condominium, which previously had not qualified as a homestead, thereafter did. Under the Florida Constitution, homestead property is "exempt from forced sale . . . and no judgment, decree or execution [can] be a lien thereon . . .," Fla. Const., Art. 10, § 4(a). The Florida courts have interpreted this provision, however, as being inapplicable to pre-existing liens, i. e., liens that attached before the property acquired its homestead status. Bessemer v. Gersten, 381 So. 2d 1344, 1347, n. 1 (Fla. 1980); Aetna Ins. Co. v. LaGasse, 223 So. 2d 727, 728 (Fla. 1969); Pasco v. Harley, 73 Fla. 819, 824-825, 75 So. 30, 32-33 (1917); Volpitta v. Fields, 369 So. 2d 367, 369 (Fla. App. 1979); Lyon v. Arnold, 46 F.2d 451, 452 (CA5 1931). Pre-existing liens, then, are in effect an exception to the Florida homestead exemption.
In January 1986, petitioner filed for bankruptcy under Chapter 7 of the Code, and claimed a homestead exemption in his Sarasota condominium. The condominium, valued at approximately $135,000, was his primary asset; his liabilities included approximately $350,000 owed to respondent. The Bankruptcy Court discharged petitioner's personal liability for these debts, and sustained, over respondent's objections, his claimed exemption.
The condominium, however, remained subject to respondent's pre-existing lien, and after discharge, petitioner moved to reopen his case to avoid the lien pursuant to § 522(f)(1). The Bankruptcy Court refused to decree the avoidance; the District Court affirmed, finding that the lien had attached *308 before the property qualified for the exemption, and that Florida law therefore did not exempt the lien-encumbered property. 86 B.R. 691 (MD Fla. 1988). The Court of Appeals for the Eleventh Circuit affirmed on the same ground. 877 F.2d 44 (1989). We granted certiorari. 495 U.S. 929 (1990).
II
An estate in bankruptcy consists of all the interests in property, legal and equitable, possessed by the debtor at the time of filing, as well as those interests recovered or recoverable through transfer and lien avoidance provisions. An exemption is an interest withdrawn from the estate (and hence from the creditors) for the benefit of the debtor. Section 522 determines what property a debtor may exempt. Under § 522(b), he must select between a list of federal exemptions (set forth in § 522(d)) and the exemptions provided by his State, "unless the State law that is applicable to the debtor . . . specifically does not so authorize," §522(b)(1) that is, unless the State "opts out" of the federal list. If a State opts out, then its debtors are limited to the exemptions provided by state law. Nothing in subsection (b) (or elsewhere in the Code) limits a State's power to restrict the scope of its exemptions; indeed, it could theoretically accord no exemptions at all.
Property that is properly exempted under § 522 is (with some exceptions) immunized against liability for prebankruptcy debts. § 522(c). No property can be exempted (and thereby immunized), however, unless it first falls within the bankruptcy estate. Section 522(b) provides that the debtor may exempt certain property "from property of the estate"; obviously, then, an interest that is not possessed by the estate cannot be exempted. Thus, if a debtor holds only bare legal title to his houseif, for example, the house is subject to a purchase-money mortgage for its full valuethen only that legal interest passes to the estate; the equitable interest remains with the mortgage holder, § 541(d). And since the *309 equitable interest does not pass to the estate, neither can it pass to the debtor as an exempt interest in property. Legal title will pass, and can be the subject of an exemption; but the property will remain subject to the lien interest of the mortgage holder. This was the rule of Long v. Bullard, 117 U.S. 617 (1886), codified in § 522. Only where the Code empowers the court to avoid liens or transfers can an interest originally not within the estate be passed to the estate, and subsequently (through the claim of an exemption) to the debtor.
It is such an avoidance provision that is at issue here, to which we now turn. Section 522(f) reads as follows:
"(f) Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is
"(1) a judicial lien; or
"(2) a nonpossessory, nonpurchase-money security interest . . . ."
The lien in the present case is a judicial lien, and we assume without deciding that it fixed "on an interest of the debtor in property." See Farrey v. Sanderfoot, ante, p. 291. The question presented by this case is whether it "impairs an exemption to which [petitioner] would have been entitled under subsection (b)." Since Florida has chosen to opt out of the listed federal exemptions, see Fla. Stat. § 222.20 (1989), the only subsection (b) exemption at issue is the Florida homestead exemption described above. Respondent suggests that, to resolve this case, we need only ask whether the judicial lien impairs that exemption. It obviously does not, since the Florida homestead exemption is not assertable against pre-existing judicial liens. To permit avoidance of the lien, respondent urges, would not preserve the exemption but would expand it.
*310 At first blush, this seems entirely reasonable. Several Courts of Appeals in addition to the Eleventh Circuit here have reached this result with respect to built-in limitations on state exemptions,[1] though others have rejected it.[2] What must give us pause, however, is that this result has been widely and uniformly rejected with respect to built-in limitations on the federal exemptions. Most of the federally listed exemptions (set forth in § 522(d)) are explicitly restricted to the "debtor's aggregate interest" or the "debtor's interest" up to a maximum amount. See §§ 522(d)(1)-(6), (8). If respondent's approach to § 522(f) were applied, all of these exemptions (and perhaps others as well)[3] would be limited by unavoided encumbering liens, see § 522(c). The federal homestead exemption, for example, allows the debtor to exempt from the property of the estate "[t]he debtor's aggregate interest, not to exceed $7,500 in value, in . . . a residence." § 522(d)(1). If respondent's interpretation of § 522(f) were applied to this exemption, a debtor who owned a house worth $10,000 that was subject to a judicial lien for $9,000 would not be entitled to the full homestead exemption of $7,500. The judicial lien would not be avoidable under § 522(f), since it does not "impair" the exemption, which is limited to the debtor's "aggregate interest" of $1,000. The uniform practice of bankruptcy courts, however, is to the contrary. To determine the application of § 522(f) they ask not whether the lien impairs an exemption to which the debtor is in fact entitled, but whether it impairs an exemption *311 to which he would have been entitled but for the lien itself.[4]
As the preceding italicized words suggest, this reading is more consonant with the text of § 522(f)which establishes as the baseline, against which impairment is to be measured, not an exemption to which the debtor "is entitled," but one to which he "would have been entitled." The latter phrase denotes a state of affairs that is conceived or hypothetical, rather than actual, and requires the reader to disregard some element of reality. "Would have been" but for what? The answer given, with respect to the federal exemptions, has been but for the lien at issue, and that seems to us correct.
The only other conceivable possibility is but for a waiver harking back to the beginning phrase of § 522(f), "Notwithstanding any waiver of exemptions . . . ." The use of contrary-to-fact construction after a "notwithstanding" phrase is not, however, common usage, if even permissible. Moreover, though one might employ it when the "notwithstanding" phrase is the main point of the provision in question *312 ("Notwithstanding any waiver, a debtor shall retain those exemptions to which he would have been entitled under subsection (b)"), it would be most strange to employ it where the "notwithstanding" phrase, as here, is an aside. The point of § 522(f) is not to exclude waivers (though that is done in passing, waivers are addressed directly in § 522(e)) but to provide that the debtor may avoid the fixing of a lien. In that context, for every instance in which "would have been entitled" may be accurate (because the incidentally mentioned waiver occurred) there will be thousands of instances in which "is entitled" should have been used. It seems to us that "would have been entitled" must refer to the generality, if not indeed the universality, of cases covered by the provision; and on that premise the only conceivable fact we are invited to disregard is the existence of the lien.
This reading must also be accepted, at least with respect to the federal exemptions, if § 522(f) is not to become an irrelevancy with respect to the most venerable, most common, and most important exemptions. The federal exemptions for homesteads (§ 522(d)(1)), for motor vehicles (§ 522(d)(2)), for household goods and wearing apparel (§ 522(d)(3)), and for tools of the trade (§ 522(d)(6)), are all defined by reference to the debtor's "interest" or "aggregate interest," so that if respondent's interpretation is accepted, no encumbrances of these could be avoided. Surely § 522(f) promises more than thatand surely it would be bizarre for the federal scheme to prevent the avoidance of liens on those items, but to permit it for the less crucial items (for example, an "unmatured life insurance contract owned by the debtor," § 522(d)(7)) that are not described in such fashion as unquestionably to exclude liens.
We have no doubt, then, that the lower courts' unanimously agreed-upon manner of applying § 522(f) to federal exemptionsask first whether avoiding the lien would entitle the debtor to an exemption, and if it would, then avoid *313 and recover the lienis correct.[5] The question then becomes whether a different interpretation should be adopted for state exemptions. We do not see how that could be possible. Nothing in the text of § 522(f) remotely justifies treating the two categories of exemptions differently. The provision refers to the impairment of "exemption[s] to which the debtor would have been entitled under subsection (b)," and that includes federal exemptions and state exemptions alike. Nor is there any overwhelmingly clear policy impelling us, if we possessed the power, to create a distinction that the words of the statute do not contain. Respondent asserts that it is inconsistent with the Bankruptcy Code's "opt-out" policy, whereby the States may define their own exemptions, to refuse to take those exemptions with all their built-in limitations. That is plainly not true, however, since there is no doubt that a state exemption which purports to be available "unless waived" will be given full effect, even if it has been waived, for purposes of § 522(f)the first phrase of which, as we have noted, recites that it applies "[n]otwithstanding any waiver of exemptions." See Dominion Bank of Cumberlands, NA v. Nuckolls, 780 F.2d 408, 412 (CA4 1985). Just as it is not inconsistent with the policy of permitting statedefined exemptions to have another policy disfavoring waiver of exemptions, whether federal- or state-created; so also it is not inconsistent to have a policy disfavoring the impingement of certain types of liens upon exemptions, whether federal- or state-created. We have no basis for pronouncing the opt-out policy absolute, but must apply it along with whatever other competing or limiting policies the statute contains.
On the basis of the analysis we have set forth above with respect to federal exemptions, and in light of the equivalency of treatment accorded to federal and state exemptions by § 522(f), we conclude that Florida's exclusion of certain liens from the scope of its homestead protection does not achieve a *314 similar exclusion from the Bankruptcy Code's lien avoidance provision.[6]
III
The foregoing conclusion does not necessarily resolve this case. Section 522(f) permits the avoidance of the "fixing of a lien on an interest of the debtor." Some courts have held it inapplicable to a lien that was already attached to property when the debtor acquired it, since in such a case there never was a "fixing of a lien" on the debtor's interest. See In re McCormick, 18 B.R. 911, 914 (Bkrtcy. Ct. WD Pa.), aff'd, 22 B.R. 997 (WD Pa. 1982); In re Scott, 12 B.R. 613, 615 (Bkrtcy. Ct. WD Okla. 1981). Under Florida law, the lien may have attached simultaneously with the acquisition of the property interest. If so, it could be argued that the lien did not fix "on an interest of the debtor." See Farrey v. Sanderfoot, ante, p. 291. The Court of Appeals did not pass on this issue, nor on the subsidiary question whether the Florida statute extending the homestead exemption was a taking, cf. United States v. Security Industrial Bank, 459 U.S. 70 (1982). We express no opinion on these points, and leave them to be considered by the Court of Appeals on remand.
The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.
It is so ordered. | The Bankruptcy Code allows the States to define what property a debtor may exempt from the bankruptcy estate that will be distributed among his creditors. 11 U.S. C. 522(b). The Code also provides that judicial liens encumbering exempt property can be eliminated. 522(f). The question in this case is whether that elimination can operate when the State has defined the exempt property in such a way as specifically to exclude property encumbered by judicial liens. I In 1975, Helen Owen, the respondent, obtained a judgment against petitioner Dwight Owen, her former husband, for approximately $160,000. The judgment was recorded in Sarasota County, Florida, in July 1976. Petitioner did not at that time own any property in Sarasota County, but under *307 Florida law, the judgment would attach to any after-acquired property recorded in the county. B. A. Lott, In 1984, petitioner purchased a condominium in Sarasota County; upon acquisition of title, the property became subject to respondent's judgment lien. Porter-Mallard One year later, Florida amended its homestead law so that petitioner's condominium, which previously had not qualified as a homestead, thereafter did. Under the Florida Constitution, homestead property is "exempt from forced sale and no judgment, decree or execution [can] be a lien thereon," Fla. Const., Art. 10, 4(a). The Florida courts have interpreted this provision, however, as being inapplicable to pre-existing liens, i. e., liens that attached before the property acquired its homestead status. ; Aetna Ins. ; ; ; Pre-existing liens, then, are in effect an exception to the Florida homestead exemption. In January 1986, petitioner filed for bankruptcy under Chapter 7 of the Code, and claimed a homestead exemption in his Sarasota condominium. The condominium, valued at approximately $135,000, was his primary asset; his liabilities included approximately $350,000 owed to respondent. The Bankruptcy Court discharged petitioner's personal liability for these debts, and sustained, over respondent's objections, his claimed exemption. The condominium, however, remained subject to respondent's pre-existing lien, and after discharge, petitioner moved to reopen his case to avoid the lien pursuant to 522(f)(1). The Bankruptcy Court refused to decree the avoidance; the District Court affirmed, finding that the lien had attached *308 before the property qualified for the exemption, and that Florida law therefore did not exempt the lien-encumbered property. The Court of Appeals for the Eleventh Circuit affirmed on the same ground. We granted certiorari. II An estate in bankruptcy consists of all the interests in property, legal and equitable, possessed by the debtor at the time of filing, as well as those interests recovered or recoverable through transfer and lien avoidance provisions. An exemption is an interest withdrawn from the estate (and hence from the creditors) for the benefit of the debtor. Section 522 determines what property a debtor may exempt. Under 522(b), he must select between a list of federal exemptions (set forth in 522(d)) and the exemptions provided by his State, "unless the State law that is applicable to the debtor specifically does not so authorize," 522(b)(1) that is, unless the State "opts out" of the federal list. If a State opts out, then its debtors are limited to the exemptions provided by state law. Nothing in subsection (b) (or elsewhere in the Code) limits a State's power to restrict the scope of its exemptions; indeed, it could theoretically accord no exemptions at all. Property that is properly exempted under 522 is (with some exceptions) immunized against liability for prebankruptcy debts. 522(c). No property can be exempted (and thereby immunized), however, unless it first falls within the bankruptcy estate. Section 522(b) provides that the debtor may exempt certain property "from property of the estate"; obviously, then, an interest that is not possessed by the estate cannot be exempted. Thus, if a debtor holds only bare legal title to his houseif, for example, the house is subject to a purchase-money mortgage for its full valuethen only that legal interest passes to the estate; the equitable interest remains with the mortgage holder, 541(d). And since the *309 equitable interest does not pass to the estate, neither can it pass to the debtor as an exempt interest in property. Legal title will pass, and can be the subject of an exemption; but the property will remain subject to the lien interest of the mortgage holder. This was the rule of codified in 522. Only where the Code empowers the court to avoid liens or transfers can an interest originally not within the estate be passed to the estate, and subsequently (through the claim of an exemption) to the debtor. It is such an avoidance provision that is at issue here, to which we now turn. Section 522(f) reads as follows: "(f) Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is "(1) a judicial lien; or "(2) a nonpossessory, nonpurchase-money security interest" The lien in the present case is a judicial lien, and we assume without deciding that it fixed "on an interest of the debtor in property." See Farrey v. Sanderfoot, ante, p. 291. The question presented by this case is whether it "impairs an exemption to which [petitioner] would have been entitled under subsection (b)." Since Florida has chosen to opt out of the listed federal exemptions, see Fla. Stat. 222.20 the only subsection (b) exemption at issue is the Florida homestead exemption described above. Respondent suggests that, to resolve this case, we need only ask whether the judicial lien impairs that exemption. It obviously does not, since the Florida homestead exemption is not assertable against pre-existing judicial liens. To permit avoidance of the lien, respondent urges, would not preserve the exemption but would expand it. *310 At first blush, this seems entirely reasonable. Several Courts of Appeals in addition to the Eleventh Circuit here have reached this result with respect to built-in limitations on state exemptions,[1] though others have rejected it.[2] What must give us pause, however, is that this result has been widely and uniformly rejected with respect to built-in limitations on the federal exemptions. Most of the federally listed exemptions (set forth in 522(d)) are explicitly restricted to the "debtor's aggregate interest" or the "debtor's interest" up to a maximum amount. See 522(d)(1)-(6), (8). If respondent's approach to 522(f) were applied, all of these exemptions (and perhaps others as well)[3] would be limited by unavoided encumbering liens, see 522(c). The federal homestead exemption, for example, allows the debtor to exempt from the property of the estate "[t]he debtor's aggregate interest, not to exceed $7,500 in value, in a residence." 522(d)(1). If respondent's interpretation of 522(f) were applied to this exemption, a debtor who owned a house worth $10,000 that was subject to a judicial lien for $9,000 would not be entitled to the full homestead exemption of $7,500. The judicial lien would not be avoidable under 522(f), since it does not "impair" the exemption, which is limited to the debtor's "aggregate interest" of $1,000. The uniform practice of bankruptcy courts, however, is to the contrary. To determine the application of 522(f) they ask not whether the lien impairs an exemption to which the debtor is in fact entitled, but whether it impairs an exemption *311 to which he would have been entitled but for the lien itself.[4] As the preceding italicized words suggest, this reading is more consonant with the text of 522(f)which establishes as the baseline, against which impairment is to be measured, not an exemption to which the debtor "is entitled," but one to which he "would have been entitled." The latter phrase denotes a state of affairs that is conceived or hypothetical, rather than actual, and requires the reader to disregard some element of reality. "Would have been" but for what? The answer given, with respect to the federal exemptions, has been but for the lien at issue, and that seems to us correct. The only other conceivable possibility is but for a waiver harking back to the beginning phrase of 522(f), "Notwithstanding any waiver of exemptions" The use of contrary-to-fact construction after a "notwithstanding" phrase is not, however, common usage, if even permissible. Moreover, though one might employ it when the "notwithstanding" phrase is the main point of the provision in question *312 ("Notwithstanding any waiver, a debtor shall retain those exemptions to which he would have been entitled under subsection (b)"), it would be most strange to employ it where the "notwithstanding" phrase, as here, is an aside. The point of 522(f) is not to exclude waivers (though that is done in passing, waivers are addressed directly in 522(e)) but to provide that the debtor may avoid the fixing of a lien. In that context, for every instance in which "would have been entitled" may be accurate (because the incidentally mentioned waiver occurred) there will be thousands of instances in which "is entitled" should have been used. It seems to us that "would have been entitled" must refer to the generality, if not indeed the universality, of cases covered by the provision; and on that premise the only conceivable fact we are invited to disregard is the existence of the lien. This reading must also be accepted, at least with respect to the federal exemptions, if 522(f) is not to become an irrelevancy with respect to the most venerable, most common, and most important exemptions. The federal exemptions for homesteads ( 522(d)(1)), for motor vehicles ( 522(d)(2)), for household goods and wearing apparel ( 522(d)(3)), and for tools of the trade ( 522(d)(6)), are all defined by reference to the debtor's "interest" or "aggregate interest," so that if respondent's interpretation is accepted, no encumbrances of these could be avoided. Surely 522(f) promises more than thatand surely it would be bizarre for the federal scheme to prevent the avoidance of liens on those items, but to permit it for the less crucial items (for example, an "unmatured life insurance contract owned by the debtor," 522(d)(7)) that are not described in such fashion as unquestionably to exclude liens. We have no doubt, then, that the lower courts' unanimously agreed-upon manner of applying 522(f) to federal exemptionsask first whether avoiding the lien would entitle the debtor to an exemption, and if it would, then avoid *313 and recover the lienis correct.[5] The question then becomes whether a different interpretation should be adopted for state exemptions. We do not see how that could be possible. Nothing in the text of 522(f) remotely justifies treating the two categories of exemptions differently. The provision refers to the impairment of "exemption[s] to which the debtor would have been entitled under subsection (b)," and that includes federal exemptions and state exemptions alike. Nor is there any overwhelmingly clear policy impelling us, if we possessed the power, to create a distinction that the words of the statute do not contain. Respondent asserts that it is inconsistent with the Bankruptcy Code's "opt-out" policy, whereby the States may define their own exemptions, to refuse to take those exemptions with all their built-in limitations. That is plainly not true, however, since there is no doubt that a state exemption which purports to be available "unless waived" will be given full effect, even if it has been waived, for purposes of 522(f)the first phrase of which, as we have noted, recites that it applies "[n]otwithstanding any waiver of exemptions." See Dominion Bank of Cumberlands, Just as it is not inconsistent with the policy of permitting statedefined exemptions to have another policy disfavoring waiver of exemptions, whether federal- or state-created; so also it is not inconsistent to have a policy disfavoring the impingement of certain types of liens upon exemptions, whether federal- or state-created. We have no basis for pronouncing the opt-out policy absolute, but must apply it along with whatever other competing or limiting policies the statute contains. On the basis of the analysis we have set forth above with respect to federal exemptions, and in light of the equivalency of treatment accorded to federal and state exemptions by 522(f), we conclude that Florida's exclusion of certain liens from the scope of its homestead protection does not achieve a *314 similar exclusion from the Bankruptcy Code's lien avoidance provision.[6] III The foregoing conclusion does not necessarily resolve this case. Section 522(f) permits the avoidance of the "fixing of a lien on an interest of the debtor." Some courts have held it inapplicable to a lien that was already attached to property when the debtor acquired it, since in such a case there never was a "fixing of a lien" on the debtor's interest. See In re McCormick, (Bkrtcy. Ct. WD Pa.), aff'd, ; In re Scott, Under Florida law, the lien may have attached simultaneously with the acquisition of the property interest. If so, it could be argued that the lien did not fix "on an interest of the debtor." See Farrey v. Sanderfoot, ante, p. 291. The Court of Appeals did not pass on this issue, nor on the subsidiary question whether the Florida statute extending the homestead exemption was a taking, cf. United We express no opinion on these points, and leave them to be considered by the Court of Appeals on remand. 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 Powell | concurring | false | County of Imperial v. Munoz | 1980-12-02T00:00:00 | null | https://www.courtlistener.com/opinion/110357/county-of-imperial-v-munoz/ | https://www.courtlistener.com/api/rest/v3/clusters/110357/ | 1,980 | 1980-007 | 1 | 6 | 3 | Although I join the opinion of the Court on the basis of its reading of Hale v. Bimco Trading, Inc., 306 U.S. 375 (1939), I record my willingness to reconsider Hale. It has rarely been cited andas the Court reads it todayit creates an *61 exception to the coverage of the Anti-Injunction Act that I think is contrary to the policy of that Act.
JUSTICE BLACKMUN, concurring in the result.
For me, the Court's opinion is somewhat opaque. Perhaps it is intentionally so.
I agree with JUSTICE BRENNAN that respondents were and were necessarily determined by the Court of Appeals to be"strangers to the state court proceeding," post, at 62, who were not bound by the state-court litigation. No principle of res judicata evoked by the California litigation applies to them.
I join the Court in vacating the Court of Appeals' judgment and remanding the case, however, for I am troubled by that court's apparent misreading of Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U.S. 281 (1970), and by its analysis of the effect of the Anti-Injunction Act, 28, U. S. C. § 2283, upon the particular facts of this case.
At the same time, I am disturbed by what seems to me to be the implication of this Court's opinion, namely, that the Anti-Injunction Act does not apply when the state litigation involves different parties. If I am correct that this is the premise, I believe that the Court is indulging in a new exposition of the meaning of Hale v. Bimco Trading, Inc., 306 U.S. 375 (1939). The Anti-Injunction Act imposes a flat and positive prohibition. It then allows three exceptions. None of those exceptions is applicable to the situation before us, which involves a single-use restriction on a single parcel of land. The precedent of Hill v. Martin, 296 U.S. 393, 403 (1935), Atlantic Coast Line R. Co., supra, and Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 630 (1977), supports a conclusion that the Anti-Injunction Act bars the federal court from issuing an injunction against enforcement of this use restriction. Yet, a holding to that effect would not oust the federal court of jurisdiction to order other forms of relief, such as a declaratory judgment. It is worth noting, or so it *62 appears to me, that the state court has made clear, by its stay of the contempt order, that it will abide by the federal resolution of the constitutional issue.[*]
The situation presented by this case is an inevitable result of our having two independent judicial systems. The Anti-Injunction Act cannot eliminate all conflicts, and was not so intended. It precludes federal injunctions that interfere with state proceedings. Heretofore, this Court has applied the Act's restrictions strictly. I would expect that approach to be continued. | Although I join the opinion of the Court on the basis of its reading of I record my willingness to reconsider Hale. It has rarely been cited andas the Court reads it todayit creates an *61 exception to the coverage of the Anti-Injunction Act that I think is contrary to the policy of that Act. JUSTICE BLACKMUN, concurring in the result. For me, the Court's opinion is somewhat opaque. Perhaps it is intentionally so. I agree with JUSTICE BRENNAN that respondents were and were necessarily determined by the Court of Appeals to be"strangers to the state court proceeding," post, at 62, who were not bound by the state-court litigation. No principle of res judicata evoked by the California litigation applies to them. I join the Court in vacating the Court of Appeals' judgment and remanding the case, however, for I am troubled by that court's apparent misreading of Atlantic Coast Line R. and by its analysis of the effect of the Anti-Injunction Act, 28, U. S. C. 2283, upon the particular facts of this case. At the same time, I am disturbed by what seems to me to be the implication of this Court's opinion, namely, that the Anti-Injunction Act does not apply when the state litigation involves different parties. If I am correct that this is the premise, I believe that the Court is indulging in a new exposition of the meaning of The Anti-Injunction Act imposes a flat and positive prohibition. It then allows three exceptions. None of those exceptions is applicable to the situation before us, which involves a single-use restriction on a single parcel of land. The precedent of Atlantic Coast Line R. and Vendo v. Lektro-Vend Corp., supports a conclusion that the Anti-Injunction Act bars the federal court from issuing an injunction against enforcement of this use restriction. Yet, a holding to that effect would not oust the federal court of jurisdiction to order other forms of relief, such as a declaratory judgment. It is worth noting, or so it *62 appears to me, that the state court has made clear, by its stay of the contempt order, that it will abide by the federal resolution of the constitutional issue.[*] The situation presented by this case is an inevitable result of our having two independent judicial systems. The Anti-Injunction Act cannot eliminate all conflicts, and was not so intended. It precludes federal injunctions that interfere with state proceedings. Heretofore, this Court has applied the Act's restrictions strictly. I would expect that approach to be continued. |
Justice Scalia | concurring | true | Dobbs v. Zant | 1993-01-19T00:00:00 | null | https://www.courtlistener.com/opinion/112806/dobbs-v-zant/ | https://www.courtlistener.com/api/rest/v3/clusters/112806/ | 1,993 | 1992-019 | 2 | 7 | 2 | Today's judgment reverses the decision below on the grounds that, in deciding not to apply the "manifest injustice" exception to the law of the case, the Court of Appeals wrongfully failed to consider a newly discovered transcript from petitioner's trial. The judgment is correct, but the judgment is also not worth making, serving no purpose but to extend the scandalous delay in the execution of a death sentence lawfully pronounced more than 18 years ago.
As a general matter, I agree with Justice Stevens' frequently recited view that "[i]t is not appropriate for this Court to expend its scarce resources crafting opinions that correct technical errors in cases of only local importance where the correction in no way promotes the development of the law." Anderson v. Harless, 459 U.S. 4, 12 (1982) (Stevens, J., dissenting). "`To remain effective, the Supreme Court must continue to decide only those cases which present questions whose resolution will have immediate importance far beyond the particular facts and parties involved.' " Board of Ed. of Rogers v. McCluskey, 458 U.S. 966, 971 (1982) (Stevens, J., dissenting) (quoting address of Chief Justice Vinson before the American Bar Association (Sept. 7, 1949)). I am willing to make an exception from that rule in capital cases but only where there is a realistic likelihood that the "technical error" affected the conviction or the sentence. Here that is fanciful.
To begin with, the rediscovered transcript covers only the closing statements in the case, and petitioner's claim goes *361 only to the fact that his trial counsel made one rather than two arguments in closing. It would be a rare case in which the omission of one particular argument from an attorney's closing statement would be dispositive of an ineffectiveassistance claim. It is simply not true, moreover, that the transcript "flatly contradict[s]," ante, at 358, the testimony of petitioner's trial counsel in the initial habeas hearing or at least not true in the sense that it shows trial counsel was lying. The transcript confirms that, as trial counsel recalled, he had argued that the death penalty was inappropriate in any circumstance. In fact, he read to the jury large portions of Justice Brennan's opinion in Furman v. Georgia, 408 U.S. 238 (1972), which is certainly an eloquent argument that the death penalty is improper in any case. The transcript does reveal that counsel had not argued in mitigation that the killing was impulsive which, petitioner now claims, shows that counsel's prior testimony was "false," Pet. for Cert. 19. That is not so. Although counsel stated at one point that he was "sure" he had argued the impulsive-killing point, a few lines earlier in the transcript he had said that "I would assume that I argued [it]" (emphasis added), and had made clear that "a lot of this is really not from actual recollection." Tr. 70-71 (Nov. 10, 1982). Petitioner's habeas counsel understood the import of this, describing (in his post-hearing brief) trial counsel's testimony to have been that "he probably argued that the killing was impulsive and not planned." Petitioner's Post-Hearing Brief in No. C80-247R (ND Ga., Dec. 2, 1982), p. 25, n. 6 (emphasis added); see also Objections to Magistrate's Report and Recommendation in No. C80-247R (ND Ga., Sept. 12, 1983), p. 8, n. 1.
There is absolutely zero likelihood that counsel's misrecollection (or misreconstruction) that he had made an "impulsiveness" argument to the jury made the difference in the 1986 finding that his assistance was not ineffective. Petitioner's ineffectiveness contention had not been directed to the inadequacy of counsel's closing argument, but rather to his *362 failure to introduce mitigating evidence character witnesses and the like during the sentencing phase. See Petition for Writ of Habeas Corpus (Dec. 3, 1980), ¶ 49, p. 12, Petitioner's Post-Hearing Brief (Dec. 2, 1982), pp. 17-30, Magistrate's Report and Recommendation (Aug. 26, 1983), pp. 8-18, and Objections to the Magistrate's Report and Recommendation (Sept. 12, 1983), pp. 2-12, in No. C80-247R (ND Ga.); Dobbs v. Kemp, 790 F.2d 1499, 1513 (CA11 1986), modified in part, 809 F.2d 750 (CA11 1987). In addressing that contention, neither the District Court nor the Court of Appeals relied on the content of the closing argument, for the obvious reason that it does not constitute evidence. The District Court described the closing argument in setting forth the events of the sentencing phase, but did not mention it in its legal analysis, ruling instead that counsel had made a "reasonably substantial investigation" in searching for witnesses to testify on petitioner's behalf and a "reasonable tactical decision not to present evidence based on the information before him." No. C80-247R (ND Ga., Jan. 13, 1984), p. 25. In affirming the District Court, the Court of Appeals elaborated on what it thought was the crucial "tactical decision" of the trial counsel (which was not a decision to omit evidence of mitigation in favor of a stunning closing argument): "Knowing of [petitioner's] poor reputation in the community, [counsel] testified in the district court that he did not want to put on any `positive' character testimony for fear that it would not be persuasive and would prompt damaging counter evidence from the prosecution." Dobbs v. Kemp, 790 F. 2d, at 1513-1514. The closing argument was mentioned only in a footnote, which stated: "Although [counsel] did not present any mitigating evidence, his testimony in the district court reveals that he did make a closing argument in mitigation." Id., at 1514, n. 15.
I think it unimaginable that, if this transcript had been available in 1986showing that only Justice Brennan's moving Furman argument, and not also an "impulsiveness" argument *363 had been made the Court of Appeals would have found that there was ineffective assistance of counsel. (Indeed, if it were our practice to correct technical errors I would vote to reverse a finding that assistance otherwise effective was rendered ineffective by that omission.) But I think it soars beyond the unimaginable, into the wildly delirious, to believe that the Court of Appeals will find that the newly discovered transcript demonstrates such "manifest injustice" that it warrants making an exception to the law-ofthe-case doctrine, so that the already-decided ineffectiveness question should be reopened. There was, in short, no reason to grant this petition and correct this (admittedly clear) technical error, except to place another obstacle in the way of a death penalty that has been suspended within this Court's "death is different" time warp since 1974.
| Today's judgment reverses the decision below on the grounds that, in deciding not to apply the "manifest injustice" exception to the law of the case, the Court of Appeals wrongfully failed to consider a newly discovered transcript from petitioner's trial. The judgment is correct, but the judgment is also not worth making, serving no purpose but to extend the scandalous delay in the execution of a death sentence lawfully pronounced more than 18 years ago. As a general matter, I agree with Justice Stevens' frequently recited view that "[i]t is not appropriate for this Court to expend its scarce resources crafting opinions that correct technical errors in cases of only local importance where the correction in no way promotes the development of the law." "`To remain effective, the Supreme Court must continue to decide only those cases which present questions whose resolution will have immediate importance far beyond the particular facts and parties involved.' " Board of Ed. of (quoting address of Chief Justice Vinson before the American Bar Association (Sept. 7, 1949)). I am willing to make an exception from that rule in capital cases but only where there is a realistic likelihood that the "technical error" affected the conviction or the sentence. Here that is fanciful. To begin with, the rediscovered transcript covers only the closing statements in the case, and petitioner's claim goes *361 only to the fact that his trial counsel made one rather than two arguments in closing. It would be a rare case in which the omission of one particular argument from an attorney's closing statement would be dispositive of an ineffectiveassistance claim. It is simply not true, moreover, that the transcript "flatly contradict[s]," ante, at 358, the testimony of petitioner's trial counsel in the initial habeas hearing or at least not true in the sense that it shows trial counsel was lying. The transcript confirms that, as trial counsel recalled, he had argued that the death penalty was inappropriate in any circumstance. In fact, he read to the jury large portions of Justice Brennan's opinion in which is certainly an eloquent argument that the death penalty is improper in any case. The transcript does reveal that counsel had not argued in mitigation that the killing was impulsive which, petitioner now claims, shows that counsel's prior testimony was "false," Pet. for Cert. 19. That is not so. Although counsel stated at one point that he was "sure" he had argued the impulsive-killing point, a few lines earlier in the transcript he had said that "I would assume that I argued [it]" (emphasis added), and had made clear that "a lot of this is really not from actual recollection." Tr. 70-71 Petitioner's habeas counsel understood the import of this, describing (in his post-hearing brief) trial counsel's testimony to have been that "he probably argued that the killing was impulsive and not planned." Petitioner's Post-Hearing Brief in No. C80-247R p. 25, n. 6 (emphasis added); see also Objections to Magistrate's Report and Recommendation in No. C80-247R (ND Ga., Sept. 1983), p. 8, n. 1. There is absolutely zero likelihood that counsel's misrecollection (or misreconstruction) that he had made an "impulsiveness" argument to the jury made the difference in the finding that his assistance was not ineffective. Petitioner's ineffectiveness contention had not been directed to the inadequacy of counsel's closing argument, but rather to his *362 failure to introduce mitigating evidence character witnesses and the like during the sentencing phase. See Petition for Writ of Habeas Corpus (Dec. 3, 1980), ¶ 49, p. Petitioner's Post-Hearing Brief pp. 17-30, Magistrate's Report and Recommendation (Aug. 26, 1983), pp. 8-18, and Objections to the Magistrate's Report and Recommendation (Sept. 1983), pp. 2-, in No. C80-247R (ND Ga.); modified in part, In addressing that contention, neither the District Court nor the Court of Appeals relied on the content of the closing argument, for the obvious reason that it does not constitute evidence. The District Court described the closing argument in setting forth the events of the sentencing phase, but did not mention it in its legal analysis, ruling instead that counsel had made a "reasonably substantial investigation" in searching for witnesses to testify on petitioner's behalf and a "reasonable tactical decision not to present evidence based on the information before him." No. C80-247R (ND Ga., Jan. 13, 1984), p. 25. In affirming the District Court, the Court of Appeals elaborated on what it thought was the crucial "tactical decision" of the trial counsel (which was not a decision to omit evidence of mitigation in favor of a stunning closing argument): "Knowing of [petitioner's] poor reputation in the community, [counsel] testified in the district court that he did not want to put on any `positive' character testimony for fear that it would not be persuasive and would prompt damaging counter evidence from the prosecution." 790 F. 2d, at -1514. The closing argument was mentioned only in a footnote, which stated: "Although [counsel] did not present any mitigating evidence, his testimony in the district court reveals that he did make a closing argument in mitigation." I think it unimaginable that, if this transcript had been available in showing that only Justice Brennan's moving Furman argument, and not also an "impulsiveness" argument *363 had been made the Court of Appeals would have found that there was ineffective assistance of counsel. (Indeed, if it were our practice to correct technical errors I would vote to reverse a finding that assistance otherwise effective was rendered ineffective by that omission.) But I think it soars beyond the unimaginable, into the wildly delirious, to believe that the Court of Appeals will find that the newly discovered transcript demonstrates such "manifest injustice" that it warrants making an exception to the law-ofthe-case doctrine, so that the already-decided ineffectiveness question should be reopened. There was, in short, no reason to grant this petition and correct this (admittedly clear) technical error, except to place another obstacle in the way of a death penalty that has been suspended within this Court's "death is different" time warp since 1974. |
Justice Brennan | majority | false | Christianson v. Colt Industries Operating Corp. | 1988-06-17T00:00:00 | null | https://www.courtlistener.com/opinion/112104/christianson-v-colt-industries-operating-corp/ | https://www.courtlistener.com/api/rest/v3/clusters/112104/ | 1,988 | 1987-119 | 1 | 9 | 0 | This case requires that we decide a peculiar jurisdictional battle between the Court of Appeals for the Federal Circuit and the Court of Appeals for the Seventh Circuit. Each court has adamantly disavowed jurisdiction over this case. Each has transferred the case to the other. And each insists that the other's jurisdictional decision is "clearly wrong." *804 798 F.2d 1051, 1056-1057 (CA7 1986); 822 F.2d 1544, 1551, n. 7 (CA Fed. 1987). The parties therefore have been forced to shuttle their appeal back and forth between Chicago and the District of Columbia in search of a hospitable forum, ultimately to have the merits decided, after two years, by a Court of Appeals that still insists it lacks jurisdiction to do so.
I
Respondent Colt Industries Operating Corp. is the leading manufacturer, seller, and marketer of M16 rifles and their parts and accessories. Colt's dominant market position dates back to 1959, when it acquired a license for 16 patents to manufacture the M16's precursor. Colt continued to develop the rifle, which the United States Army adopted as its standard assault rifle, and patented additional improvements. Through various devices, Colt has also maintained a shroud of secrecy around certain specifications essential to the mass production of interchangeable M16 parts. For example, Colt's patents conceal many of the manufacturing specifications that might otherwise be revealed by its engineering drawings, and when Colt licenses others to manufacture M16 parts or hires employees with access to proprietary information, it contractually obligates them not to disclose specifications.
Petitioner Christianson is a former Colt employee who acceded to such a nondisclosure agreement. Upon leaving respondent's employ in 1975, Christianson established petitioner International Trade Services, Inc. (ITS), and began selling M16 parts to various customers domestically and abroad. Petitioners' business depended on information that Colt considers proprietary. Colt expressly waived its proprietary rights at least as to some of petitioners' early transactions. The precise scope of Colt's waiver is a matter of considerable dispute. In 1983, however, Colt joined petitioners as defendants in a patent-infringement lawsuit against two companies that had arranged a sale of M16's to El Salvador. *805 Evidence suggested that petitioners supplied the companies with certain M16 specifications, and Colt sought a court order enjoining petitioners from any further disclosures. When the District Court declined the motion, Colt voluntarily dismissed its claims against petitioners. In the meantime, Colt notified several of petitioners' current and potential customers that petitioners were illegally misappropriating Colt's trade secrets, and urged them to refrain from doing business with petitioners.
Three days after their dismissal from the lawsuit, petitioners brought this lawsuit in the District Court against Colt "pursuant to Section 4 . . . (15 U.S. C. § 15) and Section 16 of the Clayton Act (15 U.S. C. § 26) for damages, injunctive and equitable relief by reason of its violations of Sections 1 and 2 of the Sherman Act (15 U.S. C. §§ 1 & 2) . . . ." App. 7. The complaint alleged that Colt's letters, litigation tactics, and "[o]the[r] . . . conduct" drove petitioners out of business. In that context, petitioners included the following obscure passage:
"18. The validity of the Colt patents had been assumed throughout the life of the Colt patents through 1980. Unless such patents were invalid through the wrongful retention of proprietary information in contravention of United States Patent Law (35 U.S. C. § 112), in 1980, when such patents expired, anyone `who has ordinary skill in the rifle-making art' is able to use the technology of such expired patents for which Colt earlier had a monopoly position for 17 years.
"19. ITS and anyone else has the right to manufacture, contract for the manufacture, supply, market and sell the M-16 and M-16 parts and accessories thereof at the present time." Id., at 9.
Petitioners later amended their complaint to assert a second cause of action under state law for tortious interference with their business relationships. Colt interposed a defense that *806 its conduct was justified by a need to protect its trade secrets and countersued on a variety of claims arising out of petitioners' alleged misappropriation of M16 specifications.
Petitioners' motion for summary judgment raised only a patent-law issue obliquely hinted at in the above-quoted paragraphs that Colt's patents were invalid from their inception for failure to disclose sufficient information to "enable any person skilled in the art . . . to make and use the same" as well as a description of "the best mode contemplated by the inventor of carrying out his invention." 35 U.S. C. § 112. Since Colt benefited from the protection of the invalid patents, the argument continues, the "trade secrets" that the patents should have disclosed lost any state-law protection. Petitioners therefore argued that the District Court should hold that "Colt's trade secrets are invalid and that [their] claim of invalidity shall be taken as established with respect to all claims and counterclaims to which said issue is material." App. 58.
The District Court awarded petitioners summary judgment as to liability on both the antitrust and the tortious-interference claims, essentially relying on the § 112 theory articulated above. In the process, the District Court invalidated nine of Colt's patents, declared all trade secrets relating to the M16 unenforceable, enjoined Colt from enforcing "any from of trade secret right in any technical information relating to the M16," and ordered Colt to disgorge to petitioners all such information. 613 F. Supp. 330, 332 (CD Ill. 1985).
Respondent appealed to the Court of Appeals for the Federal Circuit, which, after full briefing and argument, concluded that it lacked jurisdiction and issued an unpublished order transferring the appeal to the Court of Appeals for the Seventh Circuit. See 28 U.S. C. § 1631. The Seventh Circuit, however, raising the jurisdictional issue sua sponte, concluded that the Federal Circuit was "clearly wrong" and transferred the case back. 798 F.2d, at 1056-1057, 1062. *807 The Federal Circuit, for its part, adhered to its prior jurisdictional ruling, concluding that the Seventh Circuit exhibited "a monumental misunderstanding of the patent jurisdiction granted this court," 822 F.2d, at 1547, and was "clearly wrong," id., at 1551, n. 7. Nevertheless, the Federal Circuit proceeded to address the merits in the "interest of justice," id., at 1559-1560, and reversed the District Court. We granted certiorari, 484 U.S. 985 (1987), and now vacate the judgment of the Federal Circuit.
II
As relevant here, 28 U.S. C. § 1295(a)(1) grants the Court of Appeals for the Federal Circuit exclusive jurisdiction over "an appeal from a final decision of a district court of the United States . . . if the jurisdiction of that court was based, in whole or in part, on [28 U.S. C.] section 1338 . . . ."[1] Section 1338(a), in turn, provides in relevant part that "[t]he district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents. . . ." Thus, the jurisdictional issue before us turns on whether this is a case "arising under" a federal patent statute, for if it is then the jurisdiction of the District Court was based at least "in part" on § 1338.
A
In interpreting § 1338's precursor, we held long ago that in order to demonstrate that a case is one "arising under" federal patent law "the plaintiff must set up some right, title or interest under the patent laws, or at least make it appear that some right or privilege will be defeated by one construction, *808 or sustained by the opposite construction of these laws." Pratt v. Paris Gas Light & Coke Co., 168 U.S. 255, 259 (1897). See Henry v. A. B. Dick Co., 224 U.S. 1, 16 (1912). Our cases interpreting identical language in other jurisdictional provisions, particularly the general federal-question provision, 28 U.S. C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States"), have quite naturally applied the same test.[2] See Gully v. First National Bank in Meridian, 299 U.S. 109, 112 (1936) (the claim alleged in the complaint "must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another") (citations omitted). A district court's federal-question jurisdiction, we recently explained, extends over "only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law," Franchise Tax Board of California v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983), in that "federal law is a necessary element of one of the well-pleaded . . . claims," id., at 13. Linguistic consistency, to which we have historically adhered, demands that § 1338(a) jurisdiction likewise extend *809 only to those cases in which a well-pleaded complaint establishes either that federal patent law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal patent law, in that patent law is a necessary element of one of the well-pleaded claims. See 822 F.2d, at 1553-1556; 798 F. 2d, at 1059-1061.
The most superficial perusal of petitioners' complaint establishes, and no one disputes, that patent law did not in any sense create petitioners' antitrust or intentional-interference claims. Since no one asserts that federal jurisdiction rests on petitioners' state-law claims, the dispute centers around whether patent law "is a necessary element of one of the well-pleaded [antitrust] claims." See Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 813 (1986). Our cases, again mostly in the § 1331 context, establish principles for both defining the "well-pleaded . . . claims" and discerning which elements are "necessary" or "essential" to them. Under the well-pleaded complaint rule, as appropriately adapted to § 1338(a), whether a claim "arises under" patent law " `must be determined from what necessarily appears in the plaintiff's statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation or avoidance of defenses which it is thought the defendant may interpose.' " Franchise Tax Board, supra, at 10 (quoting Taylor v. Anderson, 234 U.S. 74, 75-76 (1914)). See Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149 (1908). Thus, a case raising a federal patent-law defense does not, for that reason alone, "arise under" patent law, "even if the defense is anticipated in the plaintiff's complaint, and even if both parties admit that the defense is the only question truly at issue in the case." Franchise Tax Board, supra, at 14.[3] See also Merrell Dow, supra, at 808.
*810 Nor is it necessarily sufficient that a well-pleaded claim alleges a single theory under which resolution of a patent-law question is essential. If "on the face of a well-pleaded complaint there are . . . reasons completely unrelated to the provisions and purposes of [the patent laws] why the [plaintiff] may or may not be entitled to the relief it seeks," Franchise Tax Board, 463 U. S., at 26 (footnote omitted), then the claim does not "arise under" those laws. See id., at 26, n. 29. Thus, a claim supported by alternative theories in the complaint may not form the basis for § 1338(a) jurisdiction unless patent law is essential to each of those theories.
B
Framed in these terms, our resolution of the jurisdictional issue in this case is straightforward. Petitioners' antitrust count can readily be understood to encompass both a monopolization claim under § 2 of the Sherman Act and a group-boycott claim under § 1. The patent-law issue, while arguably necessary to at least one theory under each claim, is not necessary to the overall success of either claim.
Section 2 of the Sherman Act condemns "[e]very person who shall monopolize, or attempt to monopolize . . . ." 15 U.S. C. § 2. The thrust of petitioners' monopolization claim is that Colt has "embarked on a course of conduct to illegally extend its monopoly position with respect to the described patents and to prevent ITS from engaging in any business with respect to parts and accessories of the M-16." App. 10. The complaint specifies several acts, most of which relate either to Colt's prosecution of the lawsuit against petitioners or to letters Colt sent to petitioners' potential and existing customers. To make out a § 2 claim, petitioners would *811 have to present a theory under which the identified conduct amounted to a "willful acquisition or maintenance of [monopoly] power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident." United States v. Grinnell Corp., 384 U.S. 563, 570-571 (1966). Both the Seventh Circuit and Colt focus entirely on what they perceive to be "the only basis Christianson asserted in the complaint for the alleged antitrust violation," 798 F.2d, at 1061; see Brief for Respondent 32 namely, that Colt made false assertions in its letters and pleadings that petitioners were violating its trade secrets, when those trade secrets were not protected under state law because Colt's patents were invalid under § 112. Thus, Colt concludes, the validity of the patents is an essential element of petitioners' prima facie monopolization theory and the case "arises under" patent law.
We can assume without deciding that the invalidity of Colt's patents is an essential element of the foregoing monopolization theory rather than merely an argument in anticipation of a defense. But see 822 F.2d, at 1547. The well-pleaded complaint rule, however, focuses on claims, not theories, see Franchise Tax Board, supra, at 26, and n. 29; Gully, 299 U. S., at 117, and just because an element that is essential to a particular theory might be governed by federal patent law does not mean that the entire monopolization claim "arises under" patent law.
Examination of the complaint reveals that the monopolization theory that Colt singles out (and on which petitioners ultimately prevailed in the District Court) is only one of several, and the only one for which the patent-law issue is even arguably essential. So far as appears from the complaint, for example, petitioners might have attempted to prove that Colt's accusations of trade-secret infringement were false not because Colt had no trade secrets, but because Colt authorized petitioners to use them. App. 9-10 ("Contrary to the permission extended to ITS to sell Colt parts and accessories *812 and in violation of the anti-trust laws . . . Colt has embarked upon a course of conduct . . . to prevent ITS from engaging in any business with respect to parts and accessories of the M-16"). In fact, most of the conduct alleged in the complaint could be deemed wrongful quite apart from the truth or falsity of Colt's accusations. According to the complaint, Colt's letters also (1) contained "copies of inapplicable court orders" and "suggest[ed] that these court orders prohibited [the recipients] from doing business with" petitioners; and (2) "falsely stat[ed] that `Colt's right' to proprietary data had been `consistently upheld in various courts.' " Id., at 10. Similarly, the complaint alleges that Colt's lawsuit against petitioners (1) was designed "to contravene the permission previously given"; (2) was "[p]ursued . . . in bad faith by subjecting [petitioners] to substantial expense in extended discovery procedures"; and (3) was brought only to enable Colt "to urge customers and potential customers of [petitioners] to refrain from doing business with them." Id., at 10-11. Since there are "reasons completely unrelated to the provisions and purposes" of federal patent law why petitioners "may or may not be entitled to the relief [they] see[k]" under their monopolization claim, Franchise Tax Board, supra, at 26 (footnote omitted), the claim does not "arise under" federal patent law.
The same analysis obtains as to petitioners' group-boycott claim under § 1 of the Sherman Act, which provides that "[e]very contract, combination . . . , or conspiracy, in restraint of trade or commerce . . . is declared to be illegal," 15 U.S. C. § 1. This claim is set forth in the allegation that "virtually all suppliers of ITS and customers of ITS have agreed with Colt to refrain from supplying and purchasing M-16 parts and accessories to or from ITS, which has had the effect of requiring ITS to close its doors and no longer transact business." App. 11. As this case unfolded, petitioners attempted to prove that the alleged agreement was unreasonable because its purpose was to protect Colt's trade secrets from petitioners' infringement and, given the patents' *813 invalidity under § 112, Colt had no trade secrets to infringe. Whether or not the patent-law issue was an "essential" element of that group-boycott theory, however, petitioners could have supported their group-boycott claim with any of several theories having nothing to do with the validity of Colt's patents. Equally prominent in the complaint, for example, is a theory that the alleged agreement was unreasonable not because Colt had no trade secrets to protect, but because Colt authorized petitioners to use them. Once again, the appearance on the complaint's face of an alternative, nonpatent theory compels the conclusion that the group-boycott claim does not "arise under" patent law.
III
Colt offers three arguments for finding jurisdiction in the Federal Circuit, notwithstanding the well-pleaded complaint rule. The first derives from congressional policy; the second is based on Federal Rule of Civil Procedure 15(b); and the third is grounded in principles of the law of the case. We find none of them persuasive.
A
Colt correctly observes that one of Congress' objectives in creating a Federal Circuit with exclusive jurisdiction over certain patent cases was "to reduce the widespread lack of uniformity and uncertainty of legal doctrine that exist[ed] in the administration of patent law." H. R. Rep. No. 97-312, p. 23 (1981). Colt might be correct (although not clearly so) that Congress' goals would be better served if the Federal Circuit's jurisdiction were to be fixed "by reference to the case actually litigated," rather than by an ex ante hypothetical assessment of the elements of the complaint that might have been dispositive. Brief for Respondent 31. Congress determined the relevant focus, however, when it granted jurisdiction to the Federal Circuit over "an appeal from . . . a *814 district court . . . if the jurisdiction of that court was based. . . on section 1338." 28 U.S. C. § 1295(a)(1) (emphasis added). Since the district court's jurisdiction is determined by reference to the well-pleaded complaint, not the well-tried case, the referent for the Federal Circuit's jurisdiction must be the same. The legislative history of the Federal Circuit's jurisdictional provisions confirms that focus. See, e. g., H. R. Rep. No. 97-312, supra, at 41 (cases fall within the Federal Circuit's patent jurisdiction "in the same sense that cases are said to `arise under' federal law for purposes of federal question jurisdiction"). In view of that clear congressional intent, we have no more authority to read § 1295(a)(1) as granting the Federal Circuit jurisdiction over an appeal where the well-pleaded complaint does not depend on patent law, than to read § 1338(a) as granting a district court jurisdiction over such a complaint. See Pratt, 168 U. S., at 259.
B
Colt suggests alternatively that under Federal Rule of Civil Procedure 15(b)[4] we should deem the complaint amended to encompass a new and independent cause of action "an implied cause of action under section 112 of the patent laws." Brief for Respondent 28. Such a cause of action, which Colt finds in petitioners' summary judgment papers, would plainly "arise under" the patent laws, regardless of its merit. See 822 F.2d, at 1566 (Nichols, J., concurring and dissenting).
We need not decide under what circumstances, if any, a court of appeals could furnish itself a jurisdictional basis unsupported by the pleadings by deeming the complaint *815 amended in light of the parties' "express or implied consent" to litigate a claim. Fed. Rule Civ. Proc. 15(b). In this case there is simply no evidence of any consent among the parties to litigate the new patent-law claim that Colt imputes to petitioners. Colt points to nothing in petitioners' summary judgment motion expressly raising such a new cause of action, much less anything in its own motion papers suggesting consent to one. See App. 57-58. True, the summary judgment papers focused almost entirely on the patent-law issues, which petitioners deemed "[b]asic and fundamental to the subject lawsuit." Id., at 57. But those issues fell squarely within the purview of the theories of recovery, defenses, and counterclaims that the pleadings already encompassed. Petitioners recognized as much when they moved the District Court to hold that their "claim of [patent] invalidity shall be taken as established with respect to all claims and counterclaims to which said issue is material." Id., at 58. Thus, the patent-law focus of the summary judgment papers hardly heralded the assertion of a new patent-law claim. See, e. g., Quillen v. International Playtex, Inc., 789 F.2d 1041, 1044 (CA4 1986); 6 C. Wright & A. Miller, Federal Practice and Procedure § 1493, p. 466 (1971). Moreover, the District Court never intimated that the patent issues were relevant to any cause of action other than the antitrust and intentional-interference claims raised expressly in the complaint; the court four times linked its judgment to "liability on Counts I and II," without any reference to the hypothetical Count III that Colt imputes to petitioners. 609 F. Supp. 1174, 1185 (CD Ill. 1985) See also 613 F. Supp., at 332.
C
Colt's final argument is that the Federal Circuit was obliged not to revisit the Seventh Circuit's thorough analysis of the jurisdictional issue, but merely to adopt it as the law of the case. See also 822 F.2d, at 1565 (Nichols, J., concurring and dissenting). "As most commonly defined, the doctrine *816 [of the law of the case] posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Arizona v. California, 460 U.S. 605, 618 (1983) (dictum). This rule of practice promotes the finality and efficiency of the judicial process by "protecting against the agitation of settled issues." 1B J. Moore, J. Lucas, & T. Currier, Moore's Federal Practice ¶ 0.404[1], p. 118 (1984) (hereinafter Moore's).
Colt is correct that the doctrine applies as much to the decisions of a coordinate court in the same case as to a court's own decisions. See, e. g., Kori Corp. v. Wilco Marsh Buggies & Draglines, Inc., 761 F.2d 649, 657 (CA Fed.), cert. denied, 474 U.S. 902 (1985); Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 900-901 (CA Fed.), cert. denied, 469 U.S. 857 (1984). Federal courts routinely apply law-of-the-case principles to transfer decisions of coordinate courts. See, e. g., Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 164-170 (CA3 1982) (transfer under 28 U.S. C. § 1406(a)); Skil Corp. v. Millers Falls Co., 541 F.2d 554, 558-559 (CA6) (alternative holding) (transfer under 28 U.S. C. § 1404(a)), cert. denied, 429 U.S. 1029 (1976); 1B Moore's ¶¶ 0.404[4.-5], 0.404[8]. Cf. Hoffman v. Blaski, 363 U.S. 335, 340-341, n. 9 (1960) (res judicata principles did not limit power of Court of Appeals to reconsider transfer decision not upset by coordinate court). Indeed, the policies supporting the doctrine apply with even greater force to transfer decisions than to decisions of substantive law; transferee courts that feel entirely free to revisit transfer decisions of a coordinate court threaten to send litigants into a vicious circle of litigation. See Hayman, supra, at 169; Chicago & N. W. Transp. Co. v. United States, 574 F.2d 926, 930 (CA7 1978). Cf. Blaski, supra, at 348-349 (Frankfurter, J., dissenting).[5]
*817 Colt's conclusion that jurisdiction therefore lay in the Federal Circuit is flawed, however, for three reasons. First, the Federal Circuit, in transferring the case to the Seventh Circuit, was the first to decide the jurisdictional issue. That the Federal Circuit did not explicate its rationale is irrelevant, for the law of the case turns on whether a court previously "decide[d] upon a rule of law" which the Federal Circuit necessarily did not on whether, or how well, it explained the decision. Thus, the law of the case was that the Seventh Circuit had jurisdiction, and it was the Seventh Circuit, not the Federal Circuit, that departed from the law of the case. Second, the law-of-the-case doctrine "merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power." Messenger v. Anderson, 225 U.S. 436, 444 (1912) (Holmes, J.) (citations omitted). A court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance, although as a rule courts should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was "clearly erroneous and would work a manifest injustice." Arizona v. California, supra, at 618, n. 8 (citation omitted). Thus, even if the Seventh Circuit's decision was law of the case, the Federal Circuit did not exceed its power in revisiting the jurisdictional issue, and once it concluded that the prior decision was "clearly wrong" it was obliged to decline jurisdiction. Most importantly, law of the case cannot bind this Court in reviewing decisions below. A petition for writ of certiorari can expose the entire case to review. Panama R. Co. v. Napier Shipping Co., 166 U.S. 280, 283-284 (1897). Just as a district court's adherence to law of the case cannot insulate an issue from appellate review, a court of appeals' adherence to the law of the case cannot insulate an issue from this Court's review. See Messenger, *818 supra, at 444; Hamilton-Brown Shoe Co. v. Wolf Brothers & Co., 240 U.S. 251, 257-259 (1916).
IV
Our agreement with the Federal Circuit's conclusion that it lacked jurisdiction, compels us to disapprove of its decision to reach the merits anyway "in the interest of justice." 822 F.2d, at 1559. "Courts created by statute can have no jurisdiction but such as the statute confers." Sheldon v. Sill, 8 How. 441, 449 (1850). See also Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379-380 (1981). The statute confers on the Federal Circuit authority to make a single decision upon concluding that it lacks jurisdiction whether to dismiss the case or, "in the interest of justice," to transfer it to a court of appeals that has jurisdiction. 28 U.S. C. § 1631.
The age-old rule that a court may not in any case, even in the interest of justice, extend its jurisdiction where none exists has always worked injustice in particular cases. Parties often spend years litigating claims only to learn that their efforts and expense were wasted in a court that lacked jurisdiction. Even more exasperating for the litigants (and wasteful for all concerned) is a situation where, as here, the litigants are bandied back and forth helplessly between two courts, each of which insists the other has jurisdiction. Such situations inhere in the very nature of jurisdictional lines, for as our cases aptly illustrate, few jurisdictional lines can be so finely drawn as to leave no room for disagreement on close cases. See, e. g., K mart Corp. v. Cartier, Inc., 485 U.S. 176 (1988); United States v. Hohri, 482 U.S. 64 (1987).
That does not mean, however, that every borderline case must inevitably culminate in a perpetual game of jurisdictional ping-pong until this Court intervenes to resolve the underlying jurisdictional dispute, or (more likely) until one of the parties surrenders to futility. Such a state of affairs would undermine public confidence in our judiciary, squander *819 private and public resources, and commit far too much of this Court's calendar to the resolution of fact-specific jurisdictional disputes that lack national importance. "Surely a seemly system of judicial remedies . . . regarding controverted transfer provisions of the United States Code should encourage, not discourage, quick settlement of questions of transfer . . . ." Blaski, 363 U. S., at 349 (Frankfurter, J., dissenting). The courts of appeals should achieve this end by adhering strictly to principles of law of the case. See supra, at 816. Situations might arise, of course, in which the transferee court considers the transfer "clearly erroneous." Arizona v. California, 460 U. S., at 618, n. 8. But as "[t]he doctrine of the law of the case is . . . a heavy deterrent to vacillation on arguable issues," 1B Moore's ¶ 0.404[1], at 124, such reversals should necessarily be exceptional; courts will rarely transfer cases over which they have clear jurisdiction, and close questions, by definition, never have clearly correct answers. Under law-of-the-case principles, if the transferee court can find the transfer decision plausible, its jurisdictional inquiry is at an end. See Fogel v. Chestnutt, 668 F.2d 100, 109 (CA2 1981) ("The law of the case will be disregarded only when the court has `a clear conviction of error' ") (citation omitted), cert. denied, 459 U.S. 828 (1982). While adherence to the law of the case will not shield an incorrect jurisdictional decision should this Court choose to grant review, see supra, at 817-818, it will obviate the necessity for us to resolve every marginal jurisdictional dispute.
We vacate the judgment of the Court of Appeals for the Federal Circuit and remand with instructions to transfer the case to the Court of Appeals for the Seventh Circuit. See 28 U.S. C. § 1631.
It is so ordered. | This case requires that we decide a peculiar jurisdictional battle between the Court of Appeals for the Federal Circuit and the Court of Appeals for the Seventh Circuit. Each court has adamantly disavowed jurisdiction over this case. Each has transferred the case to the other. And each insists that the other's jurisdictional decision is "clearly wrong." *804 ; The parties therefore have been forced to shuttle their appeal back and forth between Chicago and the District of Columbia in search of a hospitable forum, ultimately to have the merits decided, after two years, by a Court of Appeals that still insists it lacks jurisdiction to do so. I Respondent Colt Industries Operating Corp. is the leading manufacturer, seller, and marketer of M rifles and their parts and accessories. Colt's dominant market position dates back to 1959, when it acquired a license for patents to manufacture the M's precursor. Colt continued to develop the rifle, which the United States Army adopted as its standard assault rifle, and patented additional improvements. Through various devices, Colt has maintained a shroud of secrecy around certain specifications essential to the mass production of interchangeable M parts. For example, Colt's patents conceal many of the manufacturing specifications that might otherwise be revealed by its engineering drawings, and when Colt licenses others to manufacture M parts or hires employees with access to proprietary information, it contractually obligates them not to disclose specifications. Petitioner Christianson is a former Colt employee who acceded to such a nondisclosure agreement. Upon leaving respondent's employ in 1975, Christianson established petitioner International Trade Services, Inc. (ITS), and began selling M parts to various customers domestically and abroad. Petitioners' business depended on information that Colt considers proprietary. Colt expressly waived its proprietary rights at least as to some of petitioners' early transactions. The precise scope of Colt's waiver is a matter of considerable dispute. In 1983, however, Colt joined petitioners as defendants in a patent-infringement lawsuit against two companies that had arranged a sale of M's to El Salvador. *805 Evidence suggested that petitioners supplied the companies with certain M specifications, and Colt sought a court order enjoining petitioners from any further disclosures. When the District Court declined the motion, Colt voluntarily dismissed its claims against petitioners. In the meantime, Colt notified several of petitioners' current and potential customers that petitioners were illegally misappropriating Colt's trade secrets, and urged them to refrain from doing business with petitioners. Three days after their dismissal from the lawsuit, petitioners brought this lawsuit in the District Court against Colt "pursuant to Section 4 (15 U.S. C. 15) and Section of the Clayton Act (15 U.S. C. 26) for damages, injunctive and equitable relief by reason of its violations of Sections 1 and 2 of the Sherman Act (15 U.S. C. 1 & 2)" App. 7. The complaint alleged that Colt's letters, litigation tactics, and "[o]the[r] conduct" drove petitioners out of business. In that context, petitioners included the following obscure passage: "18. The validity of the Colt patents had been assumed throughout the life of the Colt patents through 1980. Unless such patents were invalid through the wrongful retention of proprietary information in contravention of United States Patent Law (35 U.S. C. ), in 1980, when such patents expired, anyone `who has ordinary skill in the rifle-making art' is able to use the technology of such expired patents for which Colt earlier had a monopoly position for 17 years. "19. ITS and anyone else has the right to manufacture, contract for the manufacture, supply, market and sell the M- and M- parts and accessories thereof at the present time." Petitioners later amended their complaint to assert a second cause of action under state law for tortious interference with their business relationships. Colt interposed a defense that *806 its conduct was justified by a need to protect its trade secrets and countersued on a variety of claims arising out of petitioners' alleged misappropriation of M specifications. Petitioners' motion for summary judgment raised only a patent-law issue obliquely hinted at in the above-quoted paragraphs that Colt's patents were invalid from their inception for failure to disclose sufficient information to "enable any person skilled in the art to make and use the same" as well as a description of "the best mode contemplated by the inventor of carrying out his invention." 35 U.S. C. Since Colt benefited from the protection of the invalid patents, the argument continues, the "trade secrets" that the patents should have disclosed lost any state-law protection. Petitioners therefore argued that the District Court should hold that "Colt's trade secrets are invalid and that [their] claim of invalidity shall be taken as established with respect to all claims and counterclaims to which said issue is material." App. 58. The District Court awarded petitioners summary judgment as to liability on both the antitrust and the tortious-interference claims, essentially relying on the theory articulated above. In the process, the District Court invalidated nine of Colt's patents, declared all trade secrets relating to the M unenforceable, enjoined Colt from enforcing "any from of trade secret right in any technical information relating to the M," and ordered Colt to disgorge to petitioners all such information. Respondent appealed to the Court of Appeals for the Federal Circuit, which, after full briefing and argument, concluded that it lacked jurisdiction and issued an unpublished order transferring the appeal to the Court of Appeals for the Seventh Circuit. See 28 U.S. C. 31. The Seventh Circuit, however, raising the jurisdictional issue sua sponte, concluded that the Federal Circuit was "clearly wrong" and transferred the case 798 F.2d, at 1062. *807 The Federal Circuit, for its part, adhered to its prior jurisdictional ruling, concluding that the Seventh Circuit exhibited "a monumental misunderstanding of the patent jurisdiction granted this court," and was "clearly wrong," at Nevertheless, the Federal Circuit proceeded to address the merits in the "interest of justice," and reversed the District Court. We granted certiorari, and now vacate the judgment of the Federal Circuit. II As relevant here, 28 U.S. C. 1295(a)(1) grants the Court of Appeals for the Federal Circuit exclusive jurisdiction over "an appeal from a final decision of a district court of the United States if the jurisdiction of that court was based, in whole or in part, on [28 U.S. C.] section 1338"[1] Section 1338(a), in turn, provides in relevant part that "[t]he district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents." Thus, the jurisdictional issue before us turns on whether this is a case "arising under" a federal patent statute, for if it is then the jurisdiction of the District Court was based at least "in part" on 1338. A In interpreting 1338's precursor, we held long ago that in order to demonstrate that a case is one "arising under" federal patent law "the plaintiff must set up some right, title or interest under the patent laws, or at least make it appear that some right or privilege will be defeated by one construction, *808 or sustained by the opposite construction of these laws." See Our cases interpreting identical language in other jurisdictional provisions, particularly the general federal-question provision, 28 U.S. C. 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States"), have quite naturally applied the same test.[2] See (citations omitted). A district court's federal-question jurisdiction, we recently explained, extends over "only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law," Franchise Tax of in that "federal law is a necessary element of one of the well-pleaded claims," Linguistic consistency, to which we have historically adhered, demands that 1338(a) jurisdiction likewise extend *809 only to those cases in which a well-pleaded complaint establishes either that federal patent law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal patent law, in that patent law is a necessary element of one of the well-pleaded claims. See -1556; 798 F. 2d, 59-1061. The most superficial perusal of petitioners' complaint establishes, and no one disputes, that patent law did not in any sense create petitioners' antitrust or intentional-interference claims. Since no one asserts that federal jurisdiction rests on petitioners' state-law claims, the dispute centers around whether patent law "is a necessary element of one of the well-pleaded [antitrust] claims." See Merrell Pharmaceuticals Our cases, again mostly in the 1331 context, establish principles for both defining the "well-pleaded claims" and discerning which elements are "necessary" or "essential" to them. Under the well-pleaded complaint rule, as appropriately adapted to 1338(a), whether a claim "arises under" patent law " `must be determined from what necessarily appears in the plaintiff's statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation or avoidance of defenses which it is thought the defendant may interpose.' " Franchise Tax ). See Louisville & Nashville R. Thus, a case raising a federal patent-law defense does not, for that reason alone, "arise under" patent law, "even if the defense is anticipated in the plaintiff's complaint, and even if both parties admit that the defense is the only question truly at issue in the case." Franchise Tax[3] See Merrell *810 Nor is it necessarily sufficient that a well-pleaded claim alleges a single theory under which resolution of a patent-law question is essential. If "on the face of a well-pleaded complaint there are reasons completely unrelated to the provisions and purposes of [the patent laws] why the [plaintiff] may or may not be entitled to the relief it seeks," Franchise Tax then the claim does not "arise under" those laws. See Thus, a claim supported by alternative theories in the complaint may not form the basis for 1338(a) jurisdiction unless patent law is essential to each of those theories. B Framed in these terms, our resolution of the jurisdictional issue in this case is straightforward. Petitioners' antitrust count can readily be understood to encompass both a monopolization claim under 2 of the Sherman Act and a group-boycott claim under 1. The patent-law issue, while arguably necessary to at least one theory under each claim, is not necessary to the overall success of either claim. Section 2 of the Sherman Act condemns "[e]very person who shall monopolize, or attempt to monopolize" 15 U.S. C. 2. The thrust of petitioners' monopolization claim is that Colt has "embarked on a course of conduct to illegally extend its monopoly position with respect to the described patents and to prevent ITS from engaging in any business with respect to parts and accessories of the M-." App. 10. The complaint specifies several acts, most of which relate either to Colt's prosecution of the lawsuit against petitioners or to letters Colt sent to petitioners' potential and existing customers. To make out a 2 claim, petitioners would *811 have to present a theory under which the identified conduct amounted to a "willful acquisition or maintenance of [monopoly] power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident." United Both the Seventh Circuit and Colt focus entirely on what they perceive to be "the only basis Christianson asserted in the complaint for the alleged antitrust violation," 798 F.2d, 61; see Brief for Respondent 32 namely, that Colt made false assertions in its letters and pleadings that petitioners were violating its trade secrets, when those trade secrets were not protected under state law because Colt's patents were invalid under Thus, Colt concludes, the validity of the patents is an essential element of petitioners' prima facie monopolization theory and the case "arises under" patent law. We can assume without deciding that the invalidity of Colt's patents is an essential element of the foregoing monopolization theory rather than merely an argument in anticipation of a defense. But see The well-pleaded complaint rule, however, focuses on claims, not theories, see Franchise Tax and n. 29; and just because an element that is essential to a particular theory might be governed by federal patent law does not mean that the entire monopolization claim "arises under" patent law. Examination of the complaint reveals that the monopolization theory that Colt singles out (and on which petitioners ultimately prevailed in the District Court) is only one of several, and the only one for which the patent-law issue is even arguably essential. So far as appears from the complaint, for example, petitioners might have attempted to prove that Colt's accusations of trade-secret infringement were false not because Colt had no trade secrets, but because Colt authorized petitioners to use them. App. 9-10 ("Contrary to the permission extended to ITS to sell Colt parts and accessories *812 and in violation of the anti-trust laws Colt has embarked upon a course of conduct to prevent ITS from engaging in any business with respect to parts and accessories of the M-"). In fact, most of the conduct alleged in the complaint could be deemed wrongful quite apart from the truth or falsity of Colt's accusations. According to the complaint, Colt's letters (1) contained "copies of inapplicable court orders" and "suggest[ed] that these court orders prohibited [the recipients] from doing business with" petitioners; and (2) "falsely stat[ed] that `Colt's right' to proprietary data had been `consistently upheld in various courts.' " Similarly, the complaint alleges that Colt's lawsuit against petitioners (1) was designed "to contravene the permission previously given"; (2) was "[p]ursued in bad faith by subjecting [petitioners] to substantial expense in extended discovery procedures"; and (3) was brought only to enable Colt "to urge customers and potential customers of [petitioners] to refrain from doing business with them." -11. Since there are "reasons completely unrelated to the provisions and purposes" of federal patent law why petitioners "may or may not be entitled to the relief [they] see[k]" under their monopolization claim, Franchise Tax the claim does not "arise under" federal patent law. The same analysis obtains as to petitioners' group-boycott claim under 1 of the Sherman Act, which provides that "[e]very contract, combination or conspiracy, in restraint of trade or commerce is declared to be illegal," 15 U.S. C. 1. This claim is set forth in the allegation that "virtually all suppliers of ITS and customers of ITS have agreed with Colt to refrain from supplying and purchasing M- parts and accessories to or from ITS, which has had the effect of requiring ITS to close its doors and no longer transact business." App. 11. As this case unfolded, petitioners attempted to prove that the alleged agreement was unreasonable because its purpose was to protect Colt's trade secrets from petitioners' infringement and, given the patents' *813 invalidity under Colt had no trade secrets to infringe. Whether or not the patent-law issue was an "essential" element of that group-boycott theory, however, petitioners could have supported their group-boycott claim with any of several theories having nothing to do with the validity of Colt's patents. Equally prominent in the complaint, for example, is a theory that the alleged agreement was unreasonable not because Colt had no trade secrets to protect, but because Colt authorized petitioners to use them. Once again, the appearance on the complaint's face of an alternative, nonpatent theory compels the conclusion that the group-boycott claim does not "arise under" patent law. III Colt offers three arguments for finding jurisdiction in the Federal Circuit, notwithstanding the well-pleaded complaint rule. The first derives from congressional policy; the second is based on Federal Rule of Civil Procedure 15(b); and the third is grounded in principles of the law of the case. We find none of them persuasive. A Colt correctly observes that one of Congress' objectives in creating a Federal Circuit with exclusive jurisdiction over certain patent cases was "to reduce the widespread lack of uniformity and uncertainty of legal doctrine that exist[ed] in the administration of patent law." H. R. Rep. No. p. 23 Colt might be correct (although not clearly so) that Congress' goals would be better served if the Federal Circuit's jurisdiction were to be fixed "by reference to the case actually litigated," rather than by an ex ante hypothetical assessment of the elements of the complaint that might have been dispositive. Brief for Respondent 31. Congress determined the relevant focus, however, when it granted jurisdiction to the Federal Circuit over "an appeal from a *814 district court if the jurisdiction of that court was based. on section 1338." 28 U.S. C. 1295(a)(1) (emphasis added). Since the district court's jurisdiction is determined by reference to the well-pleaded complaint, not the well-tried case, the referent for the Federal Circuit's jurisdiction must be the same. The legislative history of the Federal Circuit's jurisdictional provisions confirms that focus. See, e. g., H. R. Rep. No. In view of that clear congressional intent, we have no more authority to read 1295(a)(1) as granting the Federal Circuit jurisdiction over an appeal where the well-pleaded complaint does not depend on patent law, than to read 1338(a) as granting a district court jurisdiction over such a complaint. See 8 U. S., at B Colt suggests alternatively that under Federal Rule of Civil Procedure 15(b)[4] we should deem the complaint amended to encompass a new and independent cause of action "an implied cause of action under section of the patent laws." Brief for Respondent 28. Such a cause of action, which Colt finds in petitioners' summary judgment papers, would plainly "arise under" the patent laws, regardless of its merit. See We need not decide under what circumstances, if any, a court of appeals could furnish itself a jurisdictional basis unsupported by the pleadings by deeming the complaint *815 amended in light of the parties' "express or implied consent" to litigate a claim. Fed. Rule Civ. Proc. 15(b). In this case there is simply no evidence of any consent among the parties to litigate the new patent-law claim that Colt imputes to petitioners. Colt points to nothing in petitioners' summary judgment motion expressly raising such a new cause of action, much less anything in its own motion papers suggesting consent to one. See App. 57-58. True, the summary judgment papers focused almost entirely on the patent-law issues, which petitioners deemed "[b]asic and fundamental to the subject lawsuit." But those issues fell squarely within the purview of the theories of recovery, defenses, and counterclaims that the pleadings already encompassed. Petitioners recognized as much when they moved the District Court to hold that their "claim of [patent] invalidity shall be taken as established with respect to all claims and counterclaims to which said issue is material." Thus, the patent-law focus of the summary judgment papers hardly heralded the assertion of a new patent-law claim. See, e. g., ; 6 C. Wright & A. Miller, Federal Practice and Procedure 1493, p. 466 (1971). Moreover, the District Court never intimated that the patent issues were relevant to any cause of action other than the antitrust and intentional-interference claims raised expressly in the complaint; the court four times linked its judgment to "liability on Counts I and II," without any reference to the hypothetical Count III that Colt imputes to petitioners. See 613 F. Supp., at C Colt's final argument is that the Federal Circuit was obliged not to revisit the Seventh Circuit's thorough analysis of the jurisdictional issue, but merely to adopt it as the law of the case. See "As most commonly defined, the doctrine *8 [of the law of the case] posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." This rule of practice promotes the finality and efficiency of the judicial process by "protecting against the agitation of settled issues." 1B J. Moore, J. Lucas, & T. Currier, Moore's Federal Practice ¶ 0.404[1], p. 118 (hereinafter Moore's). Colt is correct that the doctrine applies as much to the decisions of a coordinate court in the same case as to a court's own decisions. See, e. g., Kori (CA Fed.), cert. denied, ; Perkin-Elmer (CA Fed.), cert. denied, Federal courts routinely apply law-of-the-case principles to transfer decisions of coordinate courts. See, e. g., Cash Register 669 F.2d 2, 4-170 (transfer under 28 U.S. C. 1406(a)); Skil (CA6) (alternative holding) (transfer under 28 U.S. C. 1404(a)), cert. denied, ; 1B Moore's ¶¶ 0.404[4.-5], 0.404[8]. Cf. Indeed, the policies supporting the doctrine apply with even greater force to transfer decisions than to decisions of substantive law; transferee courts that feel entirely free to revisit transfer decisions of a coordinate court threaten to send litigants into a vicious circle of litigation. See at 9; Chicago & N. W. Transp. Cf.[5] *817 Colt's conclusion that jurisdiction therefore lay in the Federal Circuit is flawed, however, for three reasons. First, the Federal Circuit, in transferring the case to the Seventh Circuit, was the first to decide the jurisdictional issue. That the Federal Circuit did not explicate its rationale is irrelevant, for the law of the case turns on whether a court previously "decide[d] upon a rule of law" which the Federal Circuit necessarily did not on whether, or how well, it explained the decision. Thus, the law of the case was that the Seventh Circuit had jurisdiction, and it was the Seventh Circuit, not the Federal Circuit, that departed from the law of the case. Second, the law-of-the-case doctrine "merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power." (citations omitted). A court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance, although as a rule courts should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was "clearly erroneous and would work a manifest injustice." at n. 8 Thus, even if the Seventh Circuit's decision was law of the case, the Federal Circuit did not exceed its power in revisiting the jurisdictional issue, and once it concluded that the prior decision was "clearly wrong" it was obliged to decline jurisdiction. Most importantly, law of the case cannot bind this Court in reviewing decisions below. A petition for writ of certiorari can expose the entire case to review. Panama R. 6 U.S. 280, Just as a district court's adherence to law of the case cannot insulate an issue from appellate review, a court of appeals' adherence to the law of the case cannot insulate an issue from this Court's review. See Messenger, *818 at ; Hamilton-Brown Shoe 257- (19). IV Our agreement with the Federal Circuit's conclusion that it lacked jurisdiction, compels us to disapprove of its decision to reach the merits anyway "in the interest of justice." "Courts created by statute can have no jurisdiction but such as the statute confers." See Firestone Tire & Rubber U.S. 368, The statute confers on the Federal Circuit authority to make a single decision upon concluding that it lacks jurisdiction whether to dismiss the case or, "in the interest of justice," to transfer it to a court of appeals that has jurisdiction. 28 U.S. C. 31. The age-old rule that a court may not in any case, even in the interest of justice, extend its jurisdiction where none exists has always worked injustice in particular cases. Parties often spend years litigating claims only to learn that their efforts and expense were wasted in a court that lacked jurisdiction. Even more exasperating for the litigants (and wasteful for all concerned) is a situation where, as here, the litigants are bandied back and forth helplessly between two courts, each of which insists the other has jurisdiction. Such situations inhere in the very nature of jurisdictional lines, for as our cases aptly illustrate, few jurisdictional lines can be so finely drawn as to leave no room for disagreement on close cases. See, e. g., K mart ; United That does not mean, however, that every borderline case must inevitably culminate in a perpetual game of jurisdictional ping-pong until this Court intervenes to resolve the underlying jurisdictional dispute, or (more likely) until one of the parties surrenders to futility. Such a state of affairs would undermine public confidence in our judiciary, squander *819 private and public resources, and commit far too much of this Court's calendar to the resolution of fact-specific jurisdictional disputes that lack national importance. "Surely a seemly system of judicial remedies regarding controverted transfer provisions of the United States Code should encourage, not discourage, quick settlement of questions of transfer" The courts of appeals should achieve this end by adhering strictly to principles of law of the case. See at 8. Situations might arise, of course, in which the transferee court considers the transfer "clearly erroneous." 460 U. S., at n. 8. But as "[t]he doctrine of the law of the case is a heavy deterrent to vacillation on arguable issues," 1B Moore's ¶ 0.404[1], at 124, such reversals should necessarily be exceptional; courts will rarely transfer cases over which they have clear jurisdiction, and close questions, by definition, never have clearly correct answers. Under law-of-the-case principles, if the transferee court can find the transfer decision plausible, its jurisdictional inquiry is at an end. See cert. denied, While adherence to the law of the case will not shield an incorrect jurisdictional decision should this Court choose to grant review, see it will obviate the necessity for us to resolve every marginal jurisdictional dispute. We vacate the judgment of the Court of Appeals for the Federal Circuit and remand with instructions to transfer the case to the Court of Appeals for the Seventh Circuit. See 28 U.S. C. 31. It is so ordered. |
Justice Gorsuch | dissenting | false | Sveen v. Melin | 2018-06-11T00:00:00 | null | https://www.courtlistener.com/opinion/4505999/sveen-v-melin/ | https://www.courtlistener.com/api/rest/v3/clusters/4505999/ | 2,018 | 2017-063 | 2 | 8 | 1 | The Court’s argument proceeds this way. Because
people are inattentive to their life insurance beneficiary
designations when they divorce, the legislature needs to
change those designations retroactively to ensure they
aren’t misdirected. But because those same people are
simultaneously attentive to beneficiary designations (not
to mention the legislature’s activity), they will surely undo
the change if they don’t like it. And even if that weren’t
true, it would hardly matter. People know existing divorce
laws sometimes allow courts to reform insurance con
tracts. So people should know a legislature might enact
new laws upending insurance contracts at divorce. For
these reasons, a statute rewriting the most important
term of a life insurance policy—who gets paid—somehow
doesn’t “substantially impair” the contract. It just “makes
a significant change.” Ante, at 7.
Respectfully, I cannot agree. Minnesota’s statute auto
matically alters life insurance policies upon divorce to
remove a former spouse as beneficiary. Everyone agrees
that the law is valid when applied prospectively to policies
purchased after the statute’s enactment. But Minnesota
wants to apply its law retroactively to policies purchased
before the statute’s adoption. The Court of Appeals held
that this violated the Contracts Clause, which guarantees
people the “right to ‘rely on the law . . . as it existed when
2 SVEEN v. MELIN
GORSUCH, J., dissenting
the[ir] contracts were made.’ ” Metropolitan Life Ins. Co. v.
Melin, 853 F.3d 410, 413 (CA8 2017) (quoting Whirlpool
Corp. v. Ritter, 929 F.2d 1318, 1323 (CA8 1991)). That
judgment seems to me exactly right.
I
Because legislation often disrupts existing social ar
rangements, it usually applies only prospectively. This
longstanding and “sacred” principle ensures that people
have fair warning of the law’s demands. Reynolds v.
McArthur, 2 Pet. 417, 434 (1829); 3 H. Bracton, De Legi
bus et Consuetudinibus Angliae 530–531 (1257) (T. Twiss
ed. 1880). It also prevents majoritarian legislatures from
condemning disfavored minorities for past conduct they
are powerless to change. See, e.g., Landgraf v. USI Film
Products, 511 U.S. 244, 266 (1994); Vermeule, Veil of
Ignorance Rules in Constitutional Law, 111 Yale L. J. 399,
408 (2001).
When it comes to legislation affecting contracts, the
Constitution hardens the presumption of prospectivity
into a mandate. The Contracts Clause categorically
prohibits states from passing “any . . . Law impairing
the Obligation of Contracts.” Art. I, §10, cl. 1 (emphasis
added). Of course, the framers knew how to impose more
nuanced limits on state power. The very section of the
Constitution where the Contracts Clause is found permits
states to take otherwise unconstitutional action when
“absolutely necessary,” if “actually invaded,” or “wit[h] the
Consent of Congress.” Cls. 2 and 3. But in the Contracts
Clause the framers were absolute. They took the view
that treating existing contracts as “inviolable” would
benefit society by ensuring that all persons could count on
the ability to enforce promises lawfully made to them—
even if they or their agreements later prove unpopular
with some passing majority. Sturges v. Crowninshield, 4
Wheat. 122, 206 (1819).
Cite as: 584 U. S. ____ (2018) 3
GORSUCH, J., dissenting
The categorical nature of the Contracts Clause was not
lost on anyone, either. When some delegates at the Con
stitutional Convention sought softer language, James
Madison acknowledged the “ ‘inconvenience’ ” a categorical
rule could sometimes entail “ ‘but thought on the whole it
would be overbalanced by the utility of it.’ ” Kmiec &
McGinnis, The Contract Clause: A Return to the Original
Understanding, 14 Hastings Const. L. Q. 525, 529–530
(1987). During the ratification debates, these competing
positions were again amply aired. Antifederalists argued
that the proposed Clause would prevent states from pass
ing valuable legislation. Id., at 532–533. Federalists like
Madison countered that the rule of law permitted “property
rights and liberty interests [to] be dissolved only by pro
spective laws of general applicability.” Id., at 532. And, of
course, the people chose to ratify the Constitution—
categorical Clause and all.
For much of its history, this Court construed the Con
tracts Clause in this light. The Court explained that any
legislative deviation from a contract’s obligations, “however
minute, or apparently immaterial,” violates the Constitu
tion. Green v. Biddle, 8 Wheat. 1, 84 (1823). “All the
commentators, and all the adjudicated cases upon Consti
tutional Law agree[d] in th[is] fundamental propositio[n].”
Winter v. Jones, 10 Ga. 190, 195 (1851). But while abso
lute in its field, the Clause also left significant room for
legislatures to address changing social conditions. States
could regulate contractual rights prospectively. Ogden v.
Saunders, 12 Wheat. 213, 262 (1827). They could retroac
tively alter contractual remedies, so long as they did so
reasonably. Sturges, supra, at 200. And perhaps they
could even alter contracts without “impairing” their obli
gations if they made the parties whole by paying just
compensation. See West River Bridge Co. v. Dix, 6 How.
507, 532–533 (1848); El Paso v. Simmons, 379 U.S. 497,
525 (1965) (Black, J., dissenting). But what they could not
4 SVEEN v. MELIN
GORSUCH, J., dissenting
do is destroy substantive contract rights—the “Obligation
of Contracts” that the Clause protects.
More recently, though, the Court has charted a different
course. Our modern cases permit a state to “substan
tial[ly] impai[r]” a contractual obligation in pursuit of “a
significant and legitimate public purpose” so long as the
impairment is “ ‘reasonable.’ ” Energy Reserves Group, Inc.
v. Kansas Power & Light Co., 459 U.S. 400, 411–412
(1983). That test seems hard to square with the Constitu
tion’s original public meaning. After all, the Constitution
does not speak of “substantial” impairments—it bars “any”
impairment. Under a balancing approach, too, how are
the people to know today whether their lawful contracts
will be enforced tomorrow, or instead undone by a legisla
tive majority with different sympathies? Should we worry
that a balancing test risks investing judges with discretion
to choose which contracts to enforce—a discretion that
might be exercised with an eye to the identity (and popu
larity) of the parties or contracts at hand? How are judges
supposed to balance the often radically incommensurate
goods found in contracts and legislation? And does this
test risk reducing the “Contract Clause’s protection” to the
“Court’s judgment” about the “ ‘reasonableness’ ” of the
legislation at hand? Simmons, 379 U.S., at 529 (Black, J.,
dissenting). Many critics have raised serious objections
along these and other lines. See, e.g., ibid.; Kmiec &
McGinnis, supra, at 552; Rappaport, Note, A Procedural
Approach to the Contract Clause, 93 Yale L. J. 918, 918
(1984); Epstein, Toward a Revitalization of the Contract
Clause, 51 U. Chi. L. Rev 703, 705–717 (1984); J. Ely, The
Contract Clause: A Constitutional History 7–29 (2016).
They deserve a thoughtful reply, if not in this case then in
another.
II
Even under our modern precedents, though, I still do
Cite as: 584 U. S. ____ (2018) 5
GORSUCH, J., dissenting
not see how the statute before us might survive un
scathed. Recall that our recent precedents indicate a state
law “substantially impairing” contracts violates the Con
tracts Clause unless it is “reasonable” in light of a “signifi
cant and legitimate public purpose.”
Start with the substantial impairment question. No one
pays life insurance premiums for the joy of it. Or even for
the pleasure of knowing that the insurance company will
eventually have to cough up money to someone. As the
Court concedes, the choice of beneficiary is the “ ‘whole
point.’ ” Ante, at 7. So when a state alters life insurance
contracts by undoing their beneficiary designations it
surely “substantially impairs” them. This Court has
already recognized as much, holding that a law “dis
plac[ing] the beneficiary selected by the insured . . . and
plac[ing] someone else in her stead . . . frustrates ” a
scheme designed to deliver proceeds to the named benefi
ciary. Hillman v. Maretta, 569 U.S. 483, 494 (2013) (quot
ing Wissner v. Wissner, 338 U.S. 655, 659 (1950) (internal
quotation marks omitted)). As Justice Washington ex
plained long ago, legislation “changing the objects of [the
donor’s] bounty . . . changes so materially the terms of a
contract” that the law can only be said to “impair its obli
gation.” Trustees of Dartmouth College v. Woodward, 4
Wheat. 518, 662 (1819) (concurring opinion). Just so.
Cases like ours illustrate the point. Kaye Melin testi
fied that, despite their divorce, she and the decedent,
Mark Sveen, agreed (repeatedly) to keep each other as the
primary beneficiaries in their respective life insurance
policies. Affidavit of Kaye Melin in No. 14–cv–05015, Dkt.
No. 46, ¶¶3, 4, 10–14. Ms. Melin noted that they adopted
this arrangement not only because they remained friends
but because they paid the policy premiums from their joint
checking account. Deposition of Kaye Melin in No. 14–cv–
0515, Dkt. No. 45–4, pp. 26–27, 64–65. Of course, we don’t
know for sure whether removing Ms. Melin as beneficiary
6 SVEEN v. MELIN
GORSUCH, J., dissenting
undid Mr. Sveen’s true wishes. The case comes to us after
no one was able to meet Minnesota’s clear and convincing
evidence standard to prove Mr. Sveen’s intent. But what
we do know is the retroactive removal of Ms. Melin undid
the central term of the contract Mr. Sveen signed and left
in place for years, even after his divorce, until the day he
died.
Nor are arrangements like the ones Ms. Melin described
so unusual. As the federal government has recognized,
revocation on divorce statutes cannot be assumed to “effec
tuat[e] the insured’s ‘true’ intent” because a policyholder
“might want his ex-spouse to receive insurance proceeds
for a number of reasons—out of a sense of obligation,
remorse, or continuing affection, or to help care for chil
dren of the marriage that remain in the ex-spouse’s cus-
tody.” Brief for United States as Amicus Curiae in Hillman
v. Maretta, O. T. 2012, No. 11–1221, p. 28. After all, leav
ing your ex-spouse life insurance proceeds can be a cheaper,
quicker, and more private way to provide for minor or
disabled children than leaving the matter to a trustee or
other fiduciary. See, e.g., Feder & Sitkoff, Revocable
Trusts and Incapacity Planning: More Than Just a Will
Substitute, 24 Elder L. J. 1, 15–18 (2016). For these rea
sons, the federal government and nearly half the states
today do not treat divorce as automatically revoking in
surance beneficiary designations. Brief for Petitioners 8–
9, and nn. 1–2; Hillman, supra, at 494–495.
Consider next the question of the impairment’s reason
ableness. Our cases suggest that a substantial impairment
is unreasonable when “an evident and more moderate
course would serve [the state’s] purposes equally well.”
United States Trust Co. of N. Y. v. New Jersey, 431 U.S. 1,
31 (1977); see also Allied Structural Steel Co. v. Spannaus,
438 U.S. 234, 247 (1978) (analyzing whether an impair
ment of private contracts “was necessary to meet an im
portant general social problem”). Here, Minnesota’s stated
Cite as: 584 U. S. ____ (2018) 7
GORSUCH, J., dissenting
purpose is to ensure proceeds aren’t misdirected to a
former spouse because a policyholder forgets to update his
beneficiary designation after divorce. But the state could
have easily achieved that goal without impairing contracts
at all. It could have required courts to confirm that di
vorcing couples have reviewed their life insurance desig
nations. See Va. Code Ann. §20–111.1(E) (2017); Utah
Code §30–3–5(1)(e)(i) (2018). It could have instructed
insurance companies to notify policyholders of their right
to change beneficiary designations. It could have dissemi
nated information on its own. Or it could have required
attorneys in divorce proceedings to address the question
with affected parties. A host of women’s rights organiza
tions have advocated for these and other alternatives in
various states. See, e.g., Brief for Women’s Law Project
et al. as Amici Curiae 34–35. Yet there’s no evidence
Minnesota investigated any of them, let alone found them
wanting.
III
What’s the Court’s reply? It says that we don’t have to
decide whether the statute reasonably impairs contracts
because it doesn’t substantially impair them in the first
place. It’s easy enough to see why the Court might take
this tack given the many obvious and less burdensome
alternatives Minnesota never considered. To save the law,
the Court must place all its chips on a “no substantial
impairment” argument. The gamble, though, proves a
tricky one.
The Court first stresses that individuals sometimes
neglect their beneficiary designations after divorce. Be
cause of this, it says, Minnesota’s law affords “many”
persons what they would want if only they had thought
about it. Ante, at 8. But as we’ve seen the law depends on
a stereotype about divorcing couples that not everyone fits.
A sizeable (and maybe growing) number of people do want
8 SVEEN v. MELIN
GORSUCH, J., dissenting
to keep their former spouses as beneficiaries. Brief for
Women’s Law Project 25–26. Even the Court admits the
law’s presumption will sometimes prove “wrong.” Ante, at
10. And that tells us all we need to know. That the law is
only sometimes wrong in predicting what divorcing policy
holders want may go some way to establishing its reason-
ableness at the second step of our inquiry. But at the first
step, where we ask only whether the law substantially
impairs contracts, the answer is unavoidable. The statute
substantially impairs contracts by displacing the term
that is the “ ‘whole point’ ” of the contract. Ante, at 7. This
Court would never say a law doesn’t substantially burden
a minority’s religious practice because it reflects most
people’s preferences. See Church of Lukumi Babalu Aye,
Inc. v. Hialeah, 508 U.S. 520 (1993). Equally, I do not see
how a statute doesn’t substantially impair contracts just
because it reflects “many” people’s preferences. Ante, at 8.
The Contracts Clause does not seek to maximize the bot
tom line but to protect minority rights “from improvident
majoritarian impairment.” L. Tribe, American Constitu
tional Law §9–8, p. 613 (2d ed. 1988).
The Court’s answer to this problem introduces an ap
parent paradox. If the statute substantially impairs con
tracts, it says, the impairment can be easily undone.
Anyone unhappy with the statute’s beneficiary re-
designation can just re-re-designate the beneficiary later.
Ante, at 10. Yet the Court just finished telling us the
statute is justified because most policyholders neglect their
beneficiary designations after divorce. Both claims cannot
be true. The statute cannot simultaneously be necessary
because people are inattentive to the details of their in
surance policies and constitutional because they are hy
peraware of those same details.
Perhaps seeking a way out of this problem, the Court
offers an entirely different line of argument. Here the
Court suggests the statute doesn’t substantially impair
Cite as: 584 U. S. ____ (2018) 9
GORSUCH, J., dissenting
contracts because it does no more than a divorce court
might. Ante, at 9–10. But this argument doesn’t work
either. Courts may apply pre-existing law to alter a bene
ficiary designation to ensure an equitable distribution of
marital property in specific cases. That hardly means
legislatures may retroactively change the law to rearrange
beneficiary designations for everyone. A court can fine
you for violating an existing law against jaywalking. That
doesn’t mean a legislature could hold you retroactively
liable for violating a new law against jaywalking that
didn’t exist when you crossed the street. No one would
take that idea seriously when it comes to crime, and the
Contracts Clause ensures we don’t when it comes to con
tracts, either. After all, the Clause applies only to the
“law[s]” legislatures “pass,” not to the rulings of courts.
Tidal Oil Co. v. Flanagan, 263 U.S. 444, 451 (1924) (em
phasis deleted). That’s because legislatures exist to pass
new laws of general applicability responsive to majoritar-
ian will, often upsetting settled expectations along the way.
The same does not hold true for courts that are supposed
to apply existing laws to discrete cases and controversies
independently and without consulting shifting political
winds.
The Court finally claims that its course finds support in
cases where we’ve approved retroactive legislation. Ante,
at 10–12. Those cases, though, involved statutes altering
contractual remedies. Home Building & Loan Assn. v.
Blaisdell, 290 U.S. 398, 434, and n. 13 (1934) (noting that
each of the 19th century cases relied on by the Court today
affected only “remedial processes”). And Minnesota’s law
changes the key contractual obligation—who gets the
insurance proceeds—not the method by which the con
tract’s existing obligation is satisfied. Although the Con
stitution allows legislatures some flexibility to address
changing social conditions through retroactive remedial
legislation, it does not permit upsetting settled expecta
10 SVEEN v. MELIN
GORSUCH, J., dissenting
tions in contractual obligations. See, e.g., Fletcher v. Peck,
6 Cranch 87, 137–138 (1810); Simmons, 379 U.S., at 526
(Black, J., dissenting). We must respect that line found in
the text of the Constitution, not elide it. Indeed, our prec
edent teaches that if remedial changes are just disguised
efforts at impairing obligations they will violate the Con
stitution too. Blaisdell, 290 U.S., at 434, n. 13 (collecting
cases).
Consider just how different our case is from the classic
remedial change the Contracts Clause permits. In Jack-
son v. Lamphire, 3 Pet. 280 (1830), a shady landowner sold
the same tract to two people. Id., at 287–288. The Court
held that the second buyer was entitled to keep the land
because he recorded the deed as a retroactive law re
quired. Id., at 289–290. At the same time, nothing in
Jackson or the new statute stopped the first buyer (who
failed to record his deed) from obtaining damages from the
seller for breach of contract. See id., at 287–291. The
statute altered the first buyer’s remedy, but he remained
free to enforce the obligation found in his contract. By
contrast, the statute here changes the “ ‘whole point’ ” of
the contract’s obligation, substituting a new beneficiary in
place of the one found in the contract’s terms. Ante, at 7.
Even the remedial case on which the Court leans most
heavily does little to help its cause. In Gilfillan v. Union
Canal Co. of Pa., 109 U.S. 401 (1883), the Court upheld a
statute requiring bondholders to enforce their contract
rights within a shortened timeframe (that is, altering the
remedy) or else accept a reorganization plan that threat
ened a poorer rate of interest. Id., at 402–403, 406. The
Court gave three primary reasons for upholding this
change. It emphasized that the bonds at issue were “of a
peculiar character” because “each bondholder under them
enter[ed] by fair implication into certain contract relations
with” the other bondholders who approved the reorganiza
tion. Id., at 403. It observed that “ ‘a calamity common to
Cite as: 584 U. S. ____ (2018) 11
GORSUCH, J., dissenting
all’ ” had occurred, as the company that issued the bonds
“was bankrupt” and payment of “its debts in the ordinary
way was impossible.” Id., at 405. Finally, it added that
the plaintiff challenging the statute had “actual notice” of
the law and so faced no difficulty in asserting his contract
rights in a timely manner. Id., at 406. These considera
tions, the Court concluded, justified shortening the limita
tions period for obtaining full relief even though it might
reduce a late-moving party’s interest rate a few points. No
comparable considerations are present here. And this
statute doesn’t just reduce Ms. Melin’s remedy; it denies
her one altogether.
*
The judicial power to declare a law unconstitutional
should never be lightly invoked. But the law before us
cannot survive an encounter with even the breeziest of
Contracts Clause tests. It substantially impairs life in
surance contracts by retroactively revising their key term.
No one can offer any reasonable justification for this im
pairment in light of readily available alternatives. Ac
knowledging this much doesn’t even require us to hold the
statute invalid in all applications, only that it cannot be
applied to contracts formed before its enactment. I re
spectfully dissent | The Court’s argument proceeds this way. Because people are inattentive to their life insurance beneficiary designations when they divorce, the legislature needs to change those designations retroactively to ensure they aren’t misdirected. But because those same people are simultaneously attentive to beneficiary designations (not to mention the legislature’s activity), they will surely undo the change if they don’t like it. And even if that weren’t true, it would hardly matter. People know existing divorce laws sometimes allow courts to reform insurance con tracts. So people should know a legislature might enact new laws upending insurance contracts at divorce. For these reasons, a statute rewriting the most important term of a life insurance policy—who gets paid—somehow doesn’t “substantially impair” the contract. It just “makes a significant change.” Ante, at 7. Respectfully, I cannot agree. Minnesota’s statute auto matically alters life insurance policies upon divorce to remove a former spouse as beneficiary. Everyone agrees that the law is valid when applied prospectively to policies purchased after the statute’s enactment. But Minnesota wants to apply its law retroactively to policies purchased before the statute’s adoption. The Court of Appeals held that this violated the Contracts Clause, which guarantees people the “right to ‘rely on the law as it existed when 2 SVEEN v. MELIN GORSUCH, J., dissenting the[ir] contracts were made.’ ” Metropolitan Life Ins. Co. v. Melin, ). That judgment seems to me exactly right. I Because legislation often disrupts existing social ar rangements, it usually applies only prospectively. This longstanding and “sacred” principle ensures that people have fair warning of the law’s demands. Reynolds v. McArthur, ; 3 H. Bracton, De Legi bus et Consuetudinibus Angliae 530–531 (1257) (T. Twiss ed. 1880). It also prevents majoritarian legislatures from condemning disfavored minorities for past conduct they are powerless to change. See, e.g., ; Vermeule, Veil of Ignorance Rules in Constitutional Law, 111 Yale L. J. 399, 408 (2001). When it comes to legislation affecting contracts, the Constitution hardens the presumption of prospectivity into a mandate. The Contracts Clause categorically prohibits states from passing “any Law impairing the Obligation of Contracts.” Art. I, cl. 1 (emphasis added). Of course, the framers knew how to impose more nuanced limits on state power. The very section of the Constitution where the Contracts Clause is found permits states to take otherwise unconstitutional action when “absolutely necessary,” if “actually invaded,” or “wit[h] the Consent of Congress.” Cls. 2 and 3. But in the Contracts Clause the framers were absolute. They took the view that treating existing contracts as “inviolable” would benefit society by ensuring that all persons could count on the ability to enforce promises lawfully made to them— even if they or their agreements later prove unpopular with some passing majority. v. Crowninshield, 4 Wheat. 122, 206 (1819). Cite as: 5 U. S. (2018) 3 GORSUCH, J., dissenting The categorical nature of the Contracts Clause was not lost on anyone, either. When some delegates at the Con stitutional Convention sought softer language, James Madison acknowledged the “ ‘inconvenience’ ” a categorical rule could sometimes entail “ ‘but thought on the whole it would be overbalanced by the utility of it.’ ” Kmiec & The Contract Clause: A Return to the Original Understanding, 14 Hastings Const. L. Q. 525, 529–530 (1987). During the ratification debates, these competing positions were again amply aired. Antifederalists argued that the proposed Clause would prevent states from pass ing valuable legislation. –533. Federalists like Madison countered that the rule of law permitted “property rights and liberty interests [to] be dissolved only by pro spective laws of general applicability.” And, of course, the people chose to ratify the Constitution— categorical Clause and all. For much of its history, this Court construed the Con tracts Clause in this light. The Court explained that any legislative deviation from a contract’s obligations, “however minute, or apparently immaterial,” violates the Constitu tion. “All the commentators, and all the adjudicated cases upon Consti tutional Law agree[d] in th[is] fundamental propositio[n].” But while abso lute in its field, the Clause also left significant room for legislatures to address changing social conditions. States could regulate contractual rights prospectively. Ogden v. Saunders, They could retroac tively alter contractual remedies, so long as they did so reasonably. And perhaps they could even alter contracts without “impairing” their obli gations if they made the parties whole by paying just compensation. See West River Bridge Co. v. Dix, 6 How. 507, 532–533 (18); El 525 (1965) (Black, J., dissenting). But what they could not 4 SVEEN v. MELIN GORSUCH, J., dissenting do is destroy substantive contract rights—the “Obligation of Contracts” that the Clause protects. More recently, though, the Court has charted a different course. Our modern cases permit a state to “substan tial[ly] impai[r]” a contractual obligation in pursuit of “a significant and legitimate public purpose” so long as the impairment is “ ‘reasonable.’ ” Energy Reserves Group, Inc. v. Kansas Power & Light Co., 411–412 (1983). That test seems hard to square with the Constitu tion’s original public meaning. After all, the Constitution does not speak of “substantial” impairments—it bars “any” impairment. Under a balancing approach, too, how are the people to know today whether their lawful contracts will be enforced tomorrow, or instead undone by a legisla tive majority with different sympathies? Should we worry that a balancing test risks investing judges with discretion to choose which contracts to enforce—a discretion that might be exercised with an eye to the identity (and popu larity) of the parties or contracts at hand? How are judges supposed to balance the often radically incommensurate goods found in contracts and legislation? And does this test risk reducing the “Contract Clause’s protection” to the “Court’s judgment” about the “ ‘reasonableness’ ” of the legislation at hand? (Black, J., dissenting). Many critics have raised serious objections along these and other lines. See, e.g., ibid.; Kmiec & ; Rappaport, Note, A Procedural Approach to the Contract Clause, 93 Yale L. J. 918, 918 (19); Epstein, Toward a Revitalization of the Contract Clause, 51 U. Chi. L. Rev 703, 705–717 (19); J. Ely, The Contract Clause: A Constitutional History 7–29 (2016). They deserve a thoughtful reply, if not in this case then in another. II Even under our modern precedents, though, I still do Cite as: 5 U. S. (2018) 5 GORSUCH, J., dissenting not see how the statute before us might survive un scathed. Recall that our recent precedents indicate a state law “substantially impairing” contracts violates the Con tracts Clause unless it is “reasonable” in light of a “signifi cant and legitimate public purpose.” Start with the substantial impairment question. No one pays life insurance premiums for the joy of it. Or even for the pleasure of knowing that the insurance company will eventually have to cough up money to someone. As the Court concedes, the choice of beneficiary is the “ ‘whole point.’ ” Ante, at 7. So when a state alters life insurance contracts by undoing their beneficiary designations it surely “substantially impairs” them. This Court has already recognized as much, holding that a law “dis plac[ing] the beneficiary selected by the insured and plac[ing] someone else in her stead frustrates ” a scheme designed to deliver proceeds to the named benefi ciary. (quot ing (0) (internal quotation marks omitted)). As Justice Washington ex plained long ago, legislation “changing the objects of [the donor’s] bounty changes so materially the terms of a contract” that the law can only be said to “impair its obli gation.” Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 662 (1819) (concurring opinion). Just so. Cases like ours illustrate the point. Kaye Melin testi fied that, despite their divorce, she and the decedent, Mark Sveen, agreed (repeatedly) to keep each other as the primary beneficiaries in their respective life insurance policies. Affidavit of Kaye Melin in No. 14–cv–05015, Dkt. No. 46, ¶¶3, 4, 10–14. Ms. Melin noted that they adopted this arrangement not only because they remained friends but because they paid the policy premiums from their joint checking account. Deposition of Kaye Melin in No. 14–cv– 0515, Dkt. No. 45–4, pp. 26–27, 64–65. Of course, we don’t know for sure whether removing Ms. Melin as beneficiary 6 SVEEN v. MELIN GORSUCH, J., dissenting undid Mr. Sveen’s true wishes. The case comes to us after no one was able to meet Minnesota’s clear and convincing evidence standard to prove Mr. Sveen’s intent. But what we do know is the retroactive removal of Ms. Melin undid the central term of the contract Mr. Sveen signed and left in place for years, even after his divorce, until the day he died. Nor are arrangements like the ones Ms. Melin described so unusual. As the federal government has recognized, revocation on divorce statutes cannot be assumed to “effec tuat[e] the insured’s ‘true’ intent” because a policyholder “might want his ex-spouse to receive insurance proceeds for a number of reasons—out of a sense of obligation, remorse, or continuing affection, or to help care for chil dren of the marriage that remain in the ex-spouse’s cus- tody.” Brief for United States as Amicus Curiae in v. Maretta, O. T. 2012, No. 11–1221, p. 28. After all, leav ing your ex-spouse life insurance proceeds can be a cheaper, quicker, and more private way to provide for minor or disabled children than leaving the matter to a trustee or other fiduciary. See, e.g., Feder & Sitkoff, Revocable Trusts and Incapacity Planning: More Than Just a Will Substitute, 24 Elder L. J. 1, 15–18 (2016). For these rea sons, the federal government and nearly half the states today do not treat divorce as automatically revoking in surance beneficiary designations. Brief for Petitioners 8– 9, and nn. 1–2; at –495. Consider next the question of the impairment’s reason ableness. Our cases suggest that a substantial impairment is unreasonable when “an evident and more moderate course would serve [the state’s] purposes equally well.” United States Trust Co. of N. 31 (1977); see also Allied Structural Steel (analyzing whether an impair ment of private contracts “was necessary to meet an im portant general social problem”). Here, Minnesota’s stated Cite as: 5 U. S. (2018) 7 GORSUCH, J., dissenting purpose is to ensure proceeds aren’t misdirected to a former spouse because a policyholder forgets to update his beneficiary designation after divorce. But the state could have easily achieved that goal without impairing contracts at all. It could have required courts to confirm that di vorcing couples have reviewed their life insurance desig nations. See –111.1(E) ; Utah Code (2018). It could have instructed insurance companies to notify policyholders of their right to change beneficiary designations. It could have dissemi nated information on its own. Or it could have required attorneys in divorce proceedings to address the question with affected parties. A host of women’s rights organiza tions have advocated for these and other alternatives in various states. See, e.g., Brief for Women’s Law Project et al. as Amici Curiae 34–35. Yet there’s no evidence Minnesota investigated any of them, let alone found them wanting. III What’s the Court’s reply? It says that we don’t have to decide whether the statute reasonably impairs contracts because it doesn’t substantially impair them in the first place. It’s easy enough to see why the Court might take this tack given the many obvious and less burdensome alternatives Minnesota never considered. To save the law, the Court must place all its chips on a “no substantial impairment” argument. The gamble, though, proves a tricky one. The Court first stresses that individuals sometimes neglect their beneficiary designations after divorce. Be cause of this, it says, Minnesota’s law affords “many” persons what they would want if only they had thought about it. Ante, at 8. But as we’ve seen the law depends on a stereotype about divorcing couples that not everyone fits. A sizeable (and maybe growing) number of people do want 8 SVEEN v. MELIN GORSUCH, J., dissenting to keep their former spouses as beneficiaries. Brief for Women’s Law Project 25–26. Even the Court admits the law’s presumption will sometimes prove “wrong.” Ante, at 10. And that tells us all we need to know. That the law is only sometimes wrong in predicting what divorcing policy holders want may go some way to establishing its reason- ableness at the second step of our inquiry. But at the first step, where we ask only whether the law substantially impairs contracts, the answer is unavoidable. The statute substantially impairs contracts by displacing the term that is the “ ‘whole point’ ” of the contract. Ante, at 7. This Court would never say a law doesn’t substantially burden a minority’s religious practice because it reflects most people’s preferences. See Church of Lukumi Babalu Aye, Equally, I do not see how a statute doesn’t substantially impair contracts just because it reflects “many” people’s preferences. Ante, at 8. The Contracts Clause does not seek to maximize the bot tom line but to protect minority rights “from improvident majoritarian impairment.” L. Tribe, American Constitu tional Law p. 613 (2d ed. 1988). The Court’s answer to this problem introduces an ap parent paradox. If the statute substantially impairs con tracts, it says, the impairment can be easily undone. Anyone unhappy with the statute’s beneficiary re- designation can just re-re-designate the beneficiary later. Ante, at 10. Yet the Court just finished telling us the statute is justified because most policyholders neglect their beneficiary designations after divorce. Both claims cannot be true. The statute cannot simultaneously be necessary because people are inattentive to the details of their in surance policies and constitutional because they are hy peraware of those same details. Perhaps seeking a way out of this problem, the Court offers an entirely different line of argument. Here the Court suggests the statute doesn’t substantially impair Cite as: 5 U. S. (2018) 9 GORSUCH, J., dissenting contracts because it does no more than a divorce court might. Ante, at 9–10. But this argument doesn’t work either. Courts may apply pre-existing law to alter a bene ficiary designation to ensure an equitable distribution of marital property in specific cases. That hardly means legislatures may retroactively change the law to rearrange beneficiary designations for everyone. A court can fine you for violating an existing law against jaywalking. That doesn’t mean a legislature could hold you retroactively liable for violating a new law against jaywalking that didn’t exist when you crossed the street. No one would take that idea seriously when it comes to crime, and the Contracts Clause ensures we don’t when it comes to con tracts, either. After all, the Clause applies only to the “law[s]” legislatures “pass,” not to the rulings of courts. Tidal Oil (em phasis deleted). That’s because legislatures exist to pass new laws of general applicability responsive to majoritar- ian will, often upsetting settled expectations along the way. The same does not hold true for courts that are supposed to apply existing laws to discrete cases and controversies independently and without consulting shifting political winds. The Court finally claims that its course finds support in cases where we’ve approved retroactive legislation. Ante, at 10–12. Those cases, though, involved statutes altering contractual remedies. Home Building & Loan Assn. v. (noting that each of the 19th century cases relied on by the Court today affected only “remedial processes”). And Minnesota’s law changes the key contractual obligation—who gets the insurance proceeds—not the method by which the con tract’s existing obligation is satisfied. Although the Con stitution allows legislatures some flexibility to address changing social conditions through retroactive remedial legislation, it does not permit upsetting settled expecta 10 SVEEN v. MELIN GORSUCH, J., dissenting tions in contractual obligations. See, e.g., ; (Black, J., dissenting). We must respect that line found in the text of the Constitution, not elide it. Indeed, our prec edent teaches that if remedial changes are just disguised efforts at impairing obligations they will violate the Con stitution too. 290 U.S., at n. 13 (collecting cases). Consider just how different our case is from the classic remedial change the Contracts Clause permits. In Jack- a shady landowner sold the same tract to two people. at 287–288. The Court held that the second buyer was entitled to keep the land because he recorded the deed as a retroactive law re quired. at 289–290. At the same time, nothing in Jackson or the new statute stopped the first buyer (who failed to record his deed) from obtaining damages from the seller for breach of contract. See at 287–291. The statute altered the first buyer’s remedy, but he remained free to enforce the obligation found in his contract. By contrast, the statute here changes the “ ‘whole point’ ” of the contract’s obligation, substituting a new beneficiary in place of the one found in the contract’s terms. Ante, at 7. Even the remedial case on which the Court leans most heavily does little to help its cause. In the Court upheld a statute requiring bondholders to enforce their contract rights within a shortened timeframe (that is, altering the remedy) or else accept a reorganization plan that threat ened a poorer rate of interest. at 402–403, 406. The Court gave three primary reasons for upholding this change. It emphasized that the bonds at issue were “of a peculiar character” because “each bondholder under them enter[ed] by fair implication into certain contract relations with” the other bondholders who approved the reorganiza tion. It observed that “ ‘a calamity common to Cite as: 5 U. S. (2018) 11 GORSUCH, J., dissenting all’ ” had occurred, as the company that issued the bonds “was bankrupt” and payment of “its debts in the ordinary way was impossible.” Finally, it added that the plaintiff challenging the statute had “actual notice” of the law and so faced no difficulty in asserting his contract rights in a timely manner. These considera tions, the Court concluded, justified shortening the limita tions period for obtaining full relief even though it might reduce a late-moving party’s interest rate a few points. No comparable considerations are present here. And this statute doesn’t just reduce Ms. Melin’s remedy; it denies her one altogether. * The judicial power to declare a law unconstitutional should never be lightly invoked. But the law before us cannot survive an encounter with even the breeziest of Contracts Clause tests. It substantially impairs life in surance contracts by retroactively revising their key term. No one can offer any reasonable justification for this im pairment in light of readily available alternatives. Ac knowledging this much doesn’t even require us to hold the statute invalid in all applications, only that it cannot be applied to contracts formed before its enactment. I re spectfully dissent |
Justice Ginsburg | majority | false | Perry v. New Hampshire | 2012-01-11T00:00:00 | null | https://www.courtlistener.com/opinion/620671/perry-v-new-hampshire/ | https://www.courtlistener.com/api/rest/v3/clusters/620671/ | 2,012 | 2011-009 | 1 | 8 | 1 | In our system of justice, fair trial for persons charged
with criminal offenses is secured by the Sixth Amend-
ment, which guarantees to defendants the right to counsel,
compulsory process to obtain defense witnesses, and the
opportunity to cross-examine witnesses for the prosecu-
tion. Those safeguards apart, admission of evidence in
state trials is ordinarily governed by state law, and the
reliability of relevant testimony typically falls within the
province of the jury to determine. This Court has recog-
nized, in addition, a due process check on the admission of
eyewitness identification, applicable when the police have
arranged suggestive circumstances leading the witness to
identify a particular person as the perpetrator of a crime.
An identification infected by improper police influence,
our case law holds, is not automatically excluded. Instead,
the trial judge must screen the evidence for reliability
pretrial. If there is “a very substantial likelihood of irrep-
arable misidentification,” Simmons v. United States, 390
U.S. 377, 384 (1968), the judge must disallow presenta-
tion of the evidence at trial. But if the indicia of reliability
are strong enough to outweigh the corrupting effect of the
2 PERRY v. NEW HAMPSHIRE
Opinion of the Court
police-arranged suggestive circumstances, the identifica-
tion evidence ordinarily will be admitted, and the jury will
ultimately determine its worth.
We have not extended pretrial screening for reliability
to cases in which the suggestive circumstances were not
arranged by law enforcement officers. Petitioner requests
that we do so because of the grave risk that mistaken
identification will yield a miscarriage of justice.1 Our
decisions, however, turn on the presence of state action
and aim to deter police from rigging identification proce-
dures, for example, at a lineup, showup, or photograph
array. When no improper law enforcement activity is
involved, we hold, it suffices to test reliability through the
rights and opportunities generally designed for that pur-
pose, notably, the presence of counsel at postindictment
lineups, vigorous cross-examination, protective rules of evi-
dence, and jury instructions on both the fallibility of
eyewitness identification and the requirement that guilt
be proved beyond a reasonable doubt.
I
A
Around 3 a.m. on August 15, 2008, Joffre Ullon called
the Nashua, New Hampshire, Police Department and
——————
1 The dissent, too, appears to urge that all suggestive circumstances
raise due process concerns warranting a pretrial ruling. See post, at 6,
9, 14–17. Neither Perry nor the dissent, however, points to a single
case in which we have required pretrial screening absent a police-
arranged identification procedure. Understandably so, for there are no
such cases. Instead, the dissent surveys our decisions, heedless of the
police arrangement that underlies every one of them, and inventing a
“longstanding rule,” post, at 6, that never existed. Nor are we, as the
dissent suggests, imposing a mens rea requirement, post, at 1, 7, or
otherwise altering our precedent in any way. As our case law makes
clear, what triggers due process concerns is police use of an unneces-
sarily suggestive identification procedure, whether or not they intended
the arranged procedure to be suggestive.
Cite as: 565 U. S. ____ (2012) 3
Opinion of the Court
reported that an African-American male was trying to
break into cars parked in the lot of Ullon’s apartment
building. Officer Nicole Clay responded to the call. Upon
arriving at the parking lot, Clay heard what “sounded like
a metal bat hitting the ground.” App. 37a–38a. She then
saw petitioner Barion Perry standing between two cars.
Perry walked toward Clay, holding two car-stereo amplifi-
ers in his hands. A metal bat lay on the ground behind
him. Clay asked Perry where the amplifiers came from.
“[I] found them on the ground,” Perry responded. Id.,
at 39a.
Meanwhile, Ullon’s wife, Nubia Blandon, woke her
neighbor, Alex Clavijo, and told him she had just seen
someone break into his car. Clavijo immediately went
downstairs to the parking lot to inspect the car. He first
observed that one of the rear windows had been shattered.
On further inspection, he discovered that the speakers
and amplifiers from his car stereo were missing, as were
his bat and wrench. Clavijo then approached Clay and
told her about Blandon’s alert and his own subsequent
observations.
By this time, another officer had arrived at the scene.
Clay asked Perry to stay in the parking lot with that
officer, while she and Clavijo went to talk to Blandon.
Clay and Clavijo then entered the apartment building
and took the stairs to the fourth floor, where Blandon’s and
Clavijo’s apartments were located. They met Blandon in
the hallway just outside the open door to her apartment.
Asked to describe what she had seen, Blandon stated
that, around 2:30 a.m., she saw from her kitchen window a
tall, African-American man roaming the parking lot and
looking into cars. Eventually, the man circled Clavijo’s
car, opened the trunk, and removed a large box.2
——————
2 The box, which Clay found on the ground near where she first en-
countered Perry, contained car-stereo speakers. App. 177a–178a.
4 PERRY v. NEW HAMPSHIRE
Opinion of the Court
Clay asked Blandon for a more specific description of the
man. Blandon pointed to her kitchen window and said the
person she saw breaking into Clavijo’s car was standing in
the parking lot, next to the police officer. Perry’s arrest
followed this identification.
About a month later, the police showed Blandon a pho-
tographic array that included a picture of Perry and asked
her to point out the man who had broken into Clavijo’s car.
Blandon was unable to identify Perry.
B
Perry was charged in New Hampshire state court with
one count of theft by unauthorized taking and one count of
criminal mischief.3 Before trial, he moved to suppress
Blandon’s identification on the ground that admitting it at
trial would violate due process. Blandon witnessed what
amounted to a one-person showup in the parking lot,
Perry asserted, which all but guaranteed that she would
identify him as the culprit. Id., at 15a–16a.
The New Hampshire Superior Court denied the motion.
Id., at 82a–88a. To determine whether due process pro-
hibits the introduction of an out-of-court identification at
trial, the Superior Court said, this Court’s decisions in-
struct a two-step inquiry. First, the trial court must de-
cide whether the police used an unnecessarily suggestive
identification procedure. Id., at 85a. If they did, the court
must next consider whether the improper identification
procedure so tainted the resulting identification as to
render it unreliable and therefore inadmissible. Ibid.
(citing Neil v. Biggers, 409 U.S. 188 (1972), and Manson v.
Brathwaite, 432 U.S. 98 (1977)).
Perry’s challenge, the Superior Court concluded, failed
at step one: Blandon’s identification of Perry on the night
——————
3 The theft charge was based on the taking of items from Clavijo’s car,
while the criminal mischief count was founded on the shattering of
Clavijo’s car window.
Cite as: 565 U. S. ____ (2012) 5
Opinion of the Court
of the crime did not result from an unnecessarily sugges-
tive procedure “manufacture[d] . . . by the police.” App.
86a–87a. Blandon pointed to Perry “spontaneously,” the
court noted, “without any inducement from the police.”
Id., at 85a–86a. Clay did not ask Blandon whether the
man standing in the parking lot was the man Blandon had
seen breaking into Clavijo’s car. Ibid. Nor did Clay ask
Blandon to move to the window from which she had ob-
served the break-in. Id., at 86a.
The Superior Court recognized that there were reasons
to question the accuracy of Blandon’s identification: the
parking lot was dark in some locations; Perry was stand-
ing next to a police officer; Perry was the only African-
American man in the vicinity; and Blandon was unable,
later, to pick Perry out of a photographic array. Id., at
86a–87a. But “[b]ecause the police procedures were not
unnecessarily suggestive,” the court ruled that the relia-
bility of Blandon’s testimony was for the jury to consider.
Id., at 87a.
At the ensuing trial, Blandon and Clay testified to
Blandon’s out-of-court identification. The jury found Perry
guilty of theft and not guilty of criminal mischief.
On appeal, Perry repeated his challenge to the admissi-
bility of Blandon’s out-of-court identification. The trial
court erred, Perry contended, in requiring an initial show-
ing that the police arranged the suggestive identification
procedure. Suggestive circumstances alone, Perry argued,
suffice to trigger the court’s duty to evaluate the reliability
of the resulting identification before allowing presentation
of the evidence to the jury.
The New Hampshire Supreme Court rejected Perry’s
argument and affirmed his conviction. Id., at 9a–11a.
Only where the police employ suggestive identification
techniques, that court held, does the Due Process Clause
require a trial court to assess the reliability of identifica-
tion evidence before permitting a jury to consider it. Id.,
6 PERRY v. NEW HAMPSHIRE
Opinion of the Court
at 10a–11a.
We granted certiorari to resolve a division of opinion on
the question whether the Due Process Clause requires a trial
judge to conduct a preliminary assessment of the reliability of
an eyewitness identification made under suggestive circum-
stances not arranged by the police. 563 U. S. ___ (2011).4
II
A
The Constitution, our decisions indicate, protects a de-
fendant against a conviction based on evidence of ques-
tionable reliability, not by prohibiting introduction of the
evidence, but by affording the defendant means to per-
suade the jury that the evidence should be discounted
as unworthy of credit. Constitutional safeguards available
to defendants to counter the State’s evidence include
the Sixth Amendment rights to counsel, Gideon v. Wain-
wright, 372 U.S. 335, 343–345 (1963); compulsory process,
Taylor v. Illinois, 484 U.S. 400, 408–409 (1988); and
confrontation plus cross-examination of witnesses, Dela-
ware v. Fensterer, 474 U.S. 15, 18–20 (1985) (per curiam).
——————
4 Compare United States v. Bouthot, 878 F.2d 1506, 1516 (CA1 1989)
(Due process requires federal courts to “scrutinize all suggestive identi-
fication procedures, not just those orchestrated by the police.”); Dunni-
gan v. Keane, 137 F.3d 117, 128 (CA2 1998) (same); Thigpen v. Cory,
804 F.2d 893, 895 (CA6 1986) (same), with United States v. Kimberlin,
805 F.2d 210, 233 (CA7 1986) (Due process check is required only in
cases involving improper state action.); United States v. Zeiler, 470
F.2d 717, 720 (CA3 1972) (same); State v. Addison, 160 N. H. 792, 801,
8 A.3d 118, 125 (2010) (same); State v. Reid, 91 S.W.3d 247, 272
(Tenn. 2002) (same); State v. Nordstrom, 200 Ariz. 229, 241, 25 P.3d
717, 729 (2001) (same); Semple v. State, 271 Ga. 416, 417–418, 519 S.E.
2d 912, 914–915 (1999) (same); Harris v. State, 619 N.E.2d 577, 581
(Ind. 1993) (same); State v. Pailon, 590 A.2d 858, 862–863 (R. I. 1991)
(same); Commonwealth v. Colon-Cruz, 408 Mass. 533, 541–542, 562
N.E.2d 797, 805 (1990) (same); State v. Brown, 38 Ohio St. 3d 305,
310–311, 528 N.E.2d 523, 533 (1988) (same); Wilson v. Common-
wealth, 695 S.W.2d 854, 857 (Ky. 1985) (same).
Cite as: 565 U. S. ____ (2012) 7
Opinion of the Court
Apart from these guarantees, we have recognized, state
and federal statutes and rules ordinarily govern the ad-
missibility of evidence, and juries are assigned the task of
determining the reliability of the evidence presented at
trial. See Kansas v. Ventris, 556 U.S. 586, 594, n. (2009)
(“Our legal system . . . is built on the premise that it is the
province of the jury to weigh the credibility of competing
witnesses.”). Only when evidence “is so extremely unfair
that its admission violates fundamental conceptions of
justice,” Dowling v. United States, 493 U.S. 342, 352
(1990) (internal quotation marks omitted), have we im-
posed a constraint tied to the Due Process Clause. See,
e.g., Napue v. Illinois, 360 U.S. 264, 269 (1959) (Due
process prohibits the State’s “knowin[g] use [of] false
evidence,” because such use violates “any concept of or-
dered liberty.”).
Contending that the Due Process Clause is implicated
here, Perry relies on a series of decisions involving police-
arranged identification procedures. In Stovall v. Denno,
388 U.S. 293 (1967), first of those decisions, a witness
identified the defendant as her assailant after police offic-
ers brought the defendant to the witness’ hospital room.
Id., at 295. At the time the witness made the identifica-
tion, the defendant—the only African-American in the
room—was handcuffed and surrounded by police officers.
Ibid. Although the police-arranged showup was undenia-
bly suggestive, the Court held that no due process viola-
tion occurred. Id., at 302. Crucial to the Court’s decision
was the procedure’s necessity: The witness was the only
person who could identify or exonerate the defendant; the
witness could not leave her hospital room; and it was
uncertain whether she would live to identify the defendant
in more neutral circumstances. Ibid.
A year later, in Simmons v. United States, 390 U.S. 377
(1968), the Court addressed a due process challenge to
police use of a photographic array. When a witness identi-
8 PERRY v. NEW HAMPSHIRE
Opinion of the Court
fies the defendant in a police-organized photo lineup, the
Court ruled, the identification should be suppressed only
where “the photographic identification procedure was so
[unnecessarily] suggestive as to give rise to a very sub-
stantial likelihood of irreparable misidentification.” Id., at
384–385. Satisfied that the photo array used by Federal
Bureau of Investigation agents in Simmons was both
necessary and unlikely to have led to a mistaken identifi-
cation, the Court rejected the defendant’s due process
challenge to admission of the identification. Id., at 385–
386. In contrast, the Court held in Foster v. California,
394 U.S. 440 (1969), that due process required the exclu-
sion of an eyewitness identification obtained through
police-arranged procedures that “made it all but inevitable
that [the witness] would identify [the defendant].” Id., at
443.
Synthesizing previous decisions, we set forth in Neil v.
Biggers, 409 U.S. 188 (1972), and reiterated in Manson v.
Brathwaite, 432 U.S. 98 (1977), the approach appropri-
ately used to determine whether the Due Process Clause
requires suppression of an eyewitness identification taint-
ed by police arrangement. The Court emphasized, first,
that due process concerns arise only when law enforce-
ment officers use an identification procedure that is both
suggestive and unnecessary. Id., at 107, 109; Biggers, 409
U.S., at 198. Even when the police use such a procedure,
the Court next said, suppression of the resulting identifi-
cation is not the inevitable consequence. Brathwaite, 432
U.S., at 112–113; Biggers, 409 U.S., at 198–199.
A rule requiring automatic exclusion, the Court rea-
soned, would “g[o] too far,” for it would “kee[p] evidence
from the jury that is reliable and relevant,” and “may
result, on occasion, in the guilty going free.” Brathwaite,
432 U.S., at 112; see id., at 113 (when an “identification is
reliable despite an unnecessarily suggestive [police] identi-
fication procedure,” automatic exclusion “is a Draconian
Cite as: 565 U. S. ____ (2012) 9
Opinion of the Court
sanction,” one “that may frustrate rather than promote
justice”).
Instead of mandating a per se exclusionary rule, the
Court held that the Due Process Clause requires courts to
assess, on a case-by-case basis, whether improper police
conduct created a “substantial likelihood of misidentifi-
cation.” Biggers, 409 U.S., at 201; see Brathwaite, 432
U.S., at 116. “[R]eliability [of the eyewitness identifica-
tion] is the linchpin” of that evaluation, the Court stated
in Brathwaite. Id., at 114. Where the “indicators of [a
witness’] ability to make an accurate identification” are
“outweighed by the corrupting effect” of law enforcement
suggestion, the identification should be suppressed. Id., at
114, 116. Otherwise, the evidence (if admissible in all
other respects) should be submitted to the jury.5
Applying this “totality of the circumstances” approach,
id., at 110, the Court held in Biggers that law enforce-
ment’s use of an unnecessarily suggestive showup did not
require suppression of the victim’s identification of her
assailant. 409 U.S., at 199–200. Notwithstanding the
improper procedure, the victim’s identification was relia-
ble: She saw her assailant for a considerable period of time
under adequate light, provided police with a detailed de-
scription of her attacker long before the showup, and
had “no doubt” that the defendant was the person she had
seen. Id., at 200 (internal quotation marks omitted).
Similarly, the Court concluded in Brathwaite that police
use of an unnecessarily suggestive photo array did not
——————
5 Among “factors to be considered” in evaluating a witness’ “ability to
make an accurate identification,” the Court listed: “the opportunity of
the witness to view the criminal at the time of the crime, the witness’
degree of attention, the accuracy of his prior description of the criminal,
the level of certainty demonstrated at the confrontation, and the time
between the crime and the confrontation.” Manson v. Brathwaite, 432
U.S. 98, 114 (1977) (citing Neil v. Biggers, 409 U.S. 188, 199–200
(1972)).
10 PERRY v. NEW HAMPSHIRE
Opinion of the Court
require exclusion of the resulting identification. 432 U.S.,
at 114–117. The witness, an undercover police officer,
viewed the defendant in good light for several minutes,
provided a thorough description of the suspect, and was
certain of his identification. Id., at 115. Hence, the “indi-
cators of [the witness’] ability to make an accurate identi-
fication [were] hardly outweighed by the corrupting effect
of the challenged identification.” Id., at 116.
B
Perry concedes that, in contrast to every case in the
Stovall line, law enforcement officials did not arrange the
suggestive circumstances surrounding Blandon’s identifi-
cation. See Brief for Petitioner 34; Tr. of Oral Arg. 5
(counsel for Perry) (“[W]e do not allege any manipulation
or intentional orchestration by the police.”). He contends,
however, that it was mere happenstance that each of
the Stovall cases involved improper police action. The
rationale underlying our decisions, Perry asserts, supports
a rule requiring trial judges to prescreen eyewitness evi-
dence for reliability any time an identification is made
under suggestive circumstances. We disagree.
Perry’s argument depends, in large part, on the Court’s
statement in Brathwaite that “reliability is the linchpin in
determining the admissibility of identification testimony.”
432 U.S., at 114. If reliability is the linchpin of admissi-
bility under the Due Process Clause, Perry maintains, it
should make no difference whether law enforcement was
responsible for creating the suggestive circumstances that
marred the identification.
Perry has removed our statement in Brathwaite from its
mooring, and thereby attributes to the statement a mean-
ing a fair reading of our opinion does not bear. As just
explained, supra, at 8–9, the Brathwaite Court’s reference
to reliability appears in a portion of the opinion concerning
the appropriate remedy when the police use an unneces-
Cite as: 565 U. S. ____ (2012) 11
Opinion of the Court
sarily suggestive identification procedure. The Court
adopted a judicial screen for reliability as a course prefer-
able to a per se rule requiring exclusion of identification
evidence whenever law enforcement officers employ an
improper procedure. The due process check for reliability,
Brathwaite made plain, comes into play only after the
defendant establishes improper police conduct. The very
purpose of the check, the Court noted, was to avoid depriv-
ing the jury of identification evidence that is reliable,
notwithstanding improper police conduct. 432 U.S., at
112–113.6
Perry’s contention that improper police action was not
essential to the reliability check Brathwaite required is
echoed by the dissent. Post, at 3–4. Both ignore a key
premise of the Brathwaite decision: A primary aim of ex-
cluding identification evidence obtained under unneces-
sarily suggestive circumstances, the Court said, is to deter
law enforcement use of improper lineups, showups, and
photo arrays in the first place. See 432 U.S., at 112.
Alerted to the prospect that identification evidence im-
properly obtained may be excluded, the Court reasoned,
police officers will “guard against unnecessarily suggestive
procedures.” Ibid. This deterrence rationale is inapposite
in cases, like Perry’s, in which the police engaged in no
improper conduct.
Coleman v. Alabama, 399 U.S. 1 (1970), another deci-
sion in the Stovall line, similarly shows that the Court has
linked the due process check, not to suspicion of eyewit-
ness testimony generally, but only to improper police
arrangement of the circumstances surrounding an identi-
——————
6 The Court’s description of the question presented in Brathwaite
assumes that improper state action occurred: “[Does] the Due Process
Clause of the Fourteenth Amendment compe[l] the exclusion, in a state
criminal trial, apart from any consideration of reliability, of pretrial
identification evidence obtained by a police procedure that was both
suggestive and unnecessary.” 432 U.S., at 99.
12 PERRY v. NEW HAMPSHIRE
Opinion of the Court
fication. The defendants in Coleman contended that a
witness’ in-court identifications violated due process,
because a pretrial stationhouse lineup was “so unduly
prejudicial and conducive to irreparable misidentification
as fatally to taint [the later identifications].” 399 U.S., at
3 (plurality opinion). The Court rejected this argument.
Id., at 5–6 (plurality opinion), 13–14 (Black, J., concur-
ring), 22, n. 2 (Burger, C. J., dissenting), 28, n. 2 (Stewart,
J., dissenting). No due process violation occurred, the
plurality explained, because nothing “the police said or did
prompted [the witness’] virtually spontaneous identifica-
tion of [the defendants].” Id., at 6. True, Coleman was the
only person in the lineup wearing a hat, the plurality
noted, but “nothing in the record show[ed] that he was
required to do so.” Ibid. See also Colorado v. Connelly,
479 U.S. 157, 163, 167 (1986) (Where the “crucial element
of police overreaching” is missing, the admissibility of an
allegedly unreliable confession is “a matter to be governed
by the evidentiary laws of the forum, . . . and not by the
Due Process Clause.”).
Perry and the dissent place significant weight on United
States v. Wade, 388 U.S. 218 (1967), describing it as a
decision not anchored to improper police conduct. See
Brief for Petitioner 12, 15, 21–22, 28; post, at 2–4, 8–10.
In fact, the risk of police rigging was the very danger to
which the Court responded in Wade when it recognized a
defendant’s right to counsel at postindictment, police-
organized identification procedures. 388 U.S., at 233,
235–236. “[T]he confrontation compelled by the State
between the accused and the victim or witnesses,” the
Court began, “is peculiarly riddled with innumerable
dangers and variable factors which might seriously, even
crucially, derogate from a fair trial.” Id., at 228 (emphasis
added). “A major factor contributing to the high incidence
of miscarriage of justice from mistaken identification,” the
Court continued, “has been the degree of suggestion inher-
Cite as: 565 U. S. ____ (2012) 13
Opinion of the Court
ent in the manner in which the prosecution presents
the suspect to witnesses for pretrial identification.” Ibid.
(emphasis added). To illustrate the improper suggestion it
was concerned about, the Court pointed to police-designed
lineups where “all in the lineup but the suspect were
known to the identifying witness, . . . the other partici-
pants in [the] lineup were grossly dissimilar in appearance
to the suspect, . . . only the suspect was required to wear
distinctive clothing which the culprit allegedly wore, . . .
the witness is told by the police that they have caught the
culprit after which the defendant is brought before the
witness alone or is viewed in jail, . . . the suspect is point-
ed out before or during a lineup, . . . the participants in the
lineup are asked to try on an article of clothing which fits
only the suspect.” Id., at 233 (footnotes omitted). Beyond
genuine debate, then, prevention of unfair police practices
prompted the Court to extend a defendant’s right to coun-
sel to cover postindictment lineups and showups. Id., at
235.
Perry’s argument, reiterated by the dissent, thus lacks
support in the case law he cites. Moreover, his position
would open the door to judicial preview, under the banner
of due process, of most, if not all, eyewitness identifica-
tions. External suggestion is hardly the only factor that
casts doubt on the trustworthiness of an eyewitness’ tes-
timony. As one of Perry’s amici points out, many other
factors bear on “the likelihood of misidentification,” post,
at 9—for example, the passage of time between exposure
to and identification of the defendant, whether the witness
was under stress when he first encountered the suspect,
how much time the witness had to observe the suspect,
how far the witness was from the suspect, whether the
suspect carried a weapon, and the race of the suspect and
the witness. Brief for American Psychological Association
as Amicus Curiae 9–12. There is no reason why an iden-
tification made by an eyewitness with poor vision, for ex-
14 PERRY v. NEW HAMPSHIRE
Opinion of the Court
ample, or one who harbors a grudge against the defend-
ant, should be regarded as inherently more reliable, less of
a “threat to the fairness of trial,” post, at 14, than the
identification Blandon made in this case. To embrace
Perry’s view would thus entail a vast enlargement of the
reach of due process as a constraint on the admission of
evidence.
Perry maintains that the Court can limit the due pro-
cess check he proposes to identifications made under
“suggestive circumstances.” Tr. of Oral Arg. 11–14. Even
if we could rationally distinguish suggestiveness from
other factors bearing on the reliability of eyewitness evi-
dence, Perry’s limitation would still involve trial courts,
routinely, in preliminary examinations. Most eyewitness
identifications involve some element of suggestion. In-
deed, all in-court identifications do. Out-of-court identifi-
cations volunteered by witnesses are also likely to involve
suggestive circumstances. For example, suppose a witness
identifies the defendant to police officers after seeing a
photograph of the defendant in the press captioned “theft
suspect,” or hearing a radio report implicating the defend-
ant in the crime. Or suppose the witness knew that the
defendant ran with the wrong crowd and saw him on the
day and in the vicinity of the crime. Any of these circum-
stances might have “suggested” to the witness that the
defendant was the person the witness observed commit-
ting the crime.
C
In urging a broadly applicable due process check on
eyewitness identifications, Perry maintains that eyewit-
ness identifications are a uniquely unreliable form of
evidence. See Brief for Petitioner 17–22 (citing studies
showing that eyewitness misidentifications are the leading
cause of wrongful convictions); Brief for American Psycho-
logical Association as Amicus Curiae 14–17 (describing
Cite as: 565 U. S. ____ (2012) 15
Opinion of the Court
research indicating that as many as one in three eyewit-
ness identifications is inaccurate). See also post, at 14–17.
We do not doubt either the importance or the fallibility of
eyewitness identifications. Indeed, in recognizing that
defendants have a constitutional right to counsel at
postindictment police lineups, we observed that “the an-
nals of criminal law are rife with instances of mistaken
identification.” Wade, 388 U.S., at 228.
We have concluded in other contexts, however, that the
potential unreliability of a type of evidence does not alone
render its introduction at the defendant’s trial fundamen-
tally unfair. See, e.g., Ventris, 556 U.S., at 594, n. (declin-
ing to “craft a broa[d] exclusionary rule for uncorroborated
statements obtained [from jailhouse snitches],” even
though “rewarded informant testimony” may be inherently
untrustworthy); Dowling, 493 U.S., at 353 (rejecting ar-
gument that the introduction of evidence concerning
acquitted conduct is fundamentally unfair because such
evidence is “inherently unreliable”). We reach a similar
conclusion here: The fallibility of eyewitness evidence does
not, without the taint of improper state conduct, warrant a
due process rule requiring a trial court to screen such
evidence for reliability before allowing the jury to assess
its creditworthiness.
Our unwillingness to enlarge the domain of due process
as Perry and the dissent urge rests, in large part, on our
recognition that the jury, not the judge, traditionally de-
termines the reliability of evidence. See supra, at 7. We
also take account of other safeguards built into our adver-
sary system that caution juries against placing undue
weight on eyewitness testimony of questionable reliability.
These protections include the defendant’s Sixth Amend-
ment right to confront the eyewitness. See Maryland v.
Craig, 497 U.S. 836, 845 (1990) (“The central concern of
the Confrontation Clause is to ensure the reliability of the
evidence against a criminal defendant.”). Another is the
16 PERRY v. NEW HAMPSHIRE
Opinion of the Court
defendant’s right to the effective assistance of an attorney,
who can expose the flaws in the eyewitness’ testimony
during cross-examination and focus the jury’s attention on
the fallibility of such testimony during opening and closing
arguments. Eyewitness-specific jury instructions, which
many federal and state courts have adopted,7 likewise
warn the jury to take care in appraising identification
evidence. See, e.g., United States v. Telfaire, 469 F.2d
552, 558–559 (CADC 1972) (per curiam) (D. C. Circuit
Model Jury Instructions) (“If the identification by the
witness may have been influenced by the circumstances
under which the defendant was presented to him for iden-
tification, you should scrutinize the identification with
great care.”). See also Ventris, 556 U.S., at 594, n. (citing
jury instructions that informed jurors about the unrelia-
bility of uncorroborated jailhouse-informant testimony as
a reason to resist a ban on such testimony); Dowling, 493
——————
7 See Model Crim. Jury Instr. No. 4.15 (CA3 2009); United States v.
Holley, 502 F.2d 273, 277–278 (CA4 1974); Pattern Crim. Jury Instr.
No. 1.29 (CA5 2001); Pattern Crim. Jury Instr. No. 7.11 (CA6 2011);
Fed. Crim. Jury Instr. No. 3.08 (CA7 1999); Model Crim. Jury Instr. for
the District Courts No. 4.08 (CA8 2011); Model Crim. Jury Instr.
No. 4.11 (CA9 2010); Crim. Pattern Jury Instr. No. 1.29 (CA10 2011);
Pattern Jury Instr. (Crim. Cases) Spec. Instr. No. 3 (CA11 2010); Rev.
Ariz. Jury Instr., Crim., No. 39 (3d ed. 2008); 1 Judicial Council of Cal.
Crim. Jury Instr. No. 315 (Summer 2011); Conn. Crim. Jury Instr. 2.6–
4 (2007); 2 Ga. Suggested Pattern Jury Instr. (Crim. Cases) No. 1.35.10
(4th ed. 2011); Ill. Pattern Jury Instr., Crim., No. 3.15 (Supp. 2011);
Pattern Instr., Kan. 3d, Crim., No. 52.20 (2011); 1 Md. Crim. Jury
Instr. & Commentary §§2.56, 2.57(A), 2.57(B) (3d ed. 2009 and Supp.
2010); Mass. Crim. Model Jury Instr. No. 9.160 (2009); 10 Minn. Jury
Instr. Guides, Crim., No. 3.19 (Supp. 2006); N. H. Crim. Jury Instr.
No. 3.06 (1985); N. Y. Crim. Jury Instr. “Identification—One Witness”
and “Identification—Witness Plus” (2d ed. 2011); Okla. Uniform Jury
Instr., Crim., No. 9–19 (Supp. 2000); 1 Pa. Suggested Standard Crim.
Jury Instr. No. 4.07B (2d ed. 2010); Tenn. Pattern Jury Instr., Crim.,
No. 42.05 (15th ed. 2011); Utah Model Jury Instr. CR404 (2d ed. 2010);
Model Instructions from the Vt. Crim. Jury Instr. Comm. Nos. CR5–
601, CR5–605 (2003); W. Va. Crim. Jury Instr. No. 5.05 (6th ed. 2003).
Cite as: 565 U. S. ____ (2012) 17
Opinion of the Court
U. S., at 352–353. The constitutional requirement that
the government prove the defendant’s guilt beyond a
reasonable doubt also impedes convictions based on dubi-
ous identification evidence.
State and federal rules of evidence, moreover, permit
trial judges to exclude relevant evidence if its probative
value is substantially outweighed by its prejudicial impact
or potential for misleading the jury. See, e.g., Fed. Rule
Evid. 403; N. H. Rule Evid. 403 (2011). See also Tr. of
Oral Arg. 19–22 (inquiring whether the standard Perry
seeks differs materially from the one set out in Rule 403).
In appropriate cases, some States also permit defendants
to present expert testimony on the hazards of eyewitness
identification evidence. See, e.g., State v. Clopten, 2009
UT 84, A33, 223 P.3d 1103, 1113 (“We expect . . . that in
cases involving eyewitness identification of strangers or
near-strangers, trial courts will routinely admit expert
testimony [on the dangers of such evidence].”).
Many of the safeguards just noted were at work at
Perry’s trial. During her opening statement, Perry’s court-
appointed attorney cautioned the jury about the vulnera-
bility of Blandon’s identification. App. 115a (Blandon,
“the eyewitness that the State needs you to believe[,] can’t
pick [Perry] out of a photo array. How carefully did she
really see what was going on? . . . How well could she
really see him?”). While cross-examining Blandon and
Officer Clay, Perry’s attorney constantly brought up the
weaknesses of Blandon’s identification. She highlighted:
(1) the significant distance between Blandon’s window and
the parking lot, id., at 226a; (2) the lateness of the hour,
id., at 225a; (3) the van that partly obstructed Blandon’s
view, id., at 226a; (4) Blandon’s concession that she was
“so scared [she] really didn’t pay attention” to what Perry
was wearing, id., at 233a; (5) Blandon’s inability to de-
scribe Perry’s facial features or other identifying marks,
id., at 205a, 233a–235a; (6) Blandon’s failure to pick Perry
18 PERRY v. NEW HAMPSHIRE
Opinion of the Court
out of a photo array, id., at 235a; and (7) Perry’s position
next to a uniformed, gun-bearing police officer at the
moment Blandon made her identification, id., at 202a–
205a. Perry’s counsel reminded the jury of these frailties
during her summation. Id., at 374a–375a (Blandon
“wasn’t able to tell you much about who she saw . . . . She
couldn’t pick [Perry] out of a lineup, out of a photo array
. . . . [Blandon said] [t]hat guy that was with the police
officer, that’s who was circling. Again, think about the
context with the guns, the uniforms. Powerful, powerful
context clues.”).
After closing arguments, the trial court read the jury a
lengthy instruction on identification testimony and the
factors the jury should consider when evaluating it. Id.,
at 399a–401a. The court also instructed the jury that
the defendant’s guilt must be proved beyond a reasonable
doubt, id., at 390a, 392a, 395a–396a, and specifically
cautioned that “one of the things the State must prove
[beyond a reasonable doubt] is the identification of the
defendant as the person who committed the offense,” id.,
at 398a–399a.
Given the safeguards generally applicable in criminal
trials, protections availed of by the defense in Perry’s case,
we hold that the introduction of Blandon’s eyewitness
testimony, without a preliminary judicial assessment of its
reliability, did not render Perry’s trial fundamentally
unfair.
* * *
For the foregoing reasons, we agree with the New
Hampshire courts’ appraisal of our decisions. See supra,
at 4–5. Finding no convincing reason to alter our prece-
dent, we hold that the Due Process Clause does not re-
quire a preliminary judicial inquiry into the reliability of
an eyewitness identification when the identification was
not procured under unnecessarily suggestive circum-
Cite as: 565 U. S. ____ (2012) 19
Opinion of the Court
stances arranged by law enforcement. Accordingly, the
judgment of the New Hampshire Supreme Court is
Affirmed.
Cite as: 565 U. S. ____ (2012) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–8974
_________________
BARION PERRY, PETITIONER v. | In our system of justice, fair trial for persons charged with criminal offenses is secured by the Sixth Amend- ment, which guarantees to defendants the right to counsel, compulsory process to obtain defense witnesses, and the opportunity to cross-examine witnesses for the prosecu- tio Those safeguards apart, admission of evidence in state trials is ordinarily governed by state law, and the reliability of relevant testimony typically falls within the province of the jury to determine. This Court has recog- nized, in addition, a due process check on the admission of eyewitness identification, applicable when the police have arranged suggestive circumstances leading the witness to identify a particular person as the perpetrator of a crime. An identification infected by improper police influence, our case law holds, is not automatically excluded. Instead, the trial judge must screen the evidence for reliability pretrial. If there is “a very substantial likelihood of irrep- arable misidentification,” 390 U.S. 377, 384 (1968), the judge must disallow presenta- tion of the evidence at trial. But if the indicia of reliability are strong enough to outweigh the corrupting effect of the 2 PERRY v. NEW HAMPSHIRE Opinion of the Court police-arranged suggestive circumstances, the identifica- tion evidence ordinarily will be admitted, and the jury will ultimately determine its worth. We have not extended pretrial screening for reliability to cases in which the suggestive circumstances were not arranged by law enforcement officers. Petitioner requests that we do so because of the grave risk that mistaken identification will yield a miscarriage of justice.1 Our decisions, however, turn on the presence of state action and aim to deter police from rigging identification proce- dures, for example, at a lineup, showup, or photograph array. When no improper law enforcement activity is involved, we hold, it suffices to test reliability through the rights and opportunities generally designed for that pur- pose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evi- dence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt. I A Around 3 a.m. on August 15, 2008, Joffre Ullon called the Nashua, New Hampshire, Police Department and —————— 1 The dissent, too, appears to urge that all suggestive circumstances raise due process concerns warranting a pretrial ruling. See post, 9, 14–17. Neither Perry nor the dissent, however, points to a single case in which we have required pretrial screening absent a police- arranged identification procedure. Understandably so, for there are no such cases. Instead, the dissent surveys our decisions, heedless of the police arrangement that underlies every one of them, and inventing a “longstanding rule,” post, that never existed. Nor are we, as the dissent suggests, imposing a mens rea requirement, post, at 1, 7, or otherwise altering our precedent in any way. As our case law makes clear, what triggers due process concerns is police use of an unneces- sarily suggestive identification procedure, whether or not they intended the arranged procedure to be suggestive. Cite as: 565 U. S. (2012) 3 Opinion of the Court reported that an African-American male was trying to break into cars parked in the lot of Ullon’s apartment building. Officer Nicole Clay responded to the call. Upon arriving at the parking lot, Clay heard what “sounded like a metal bat hitting the ground.” App. 37a–38a. She then saw petitioner Barion Perry standing between two cars. Perry walked toward Clay, holding two car-stereo amplifi- ers in his hands. A metal bat lay on the ground behind him. Clay asked Perry where the amplifiers came from. “[I] found them on the ground,” Perry responded. at 39a. Meanwhile, Ullon’s wife, Nubia Blandon, woke her neighbor, Alex Clavijo, and told him she had just seen someone break into his car. Clavijo immediately went downstairs to the parking lot to inspect the car. He first observed that one of the rear windows had been shattered. On further inspection, he discovered that the speakers and amplifiers from his car stereo were missing, as were his bat and wrench. Clavijo then approached Clay and told her about Blandon’s alert and his own subsequent observations. By this time, another officer had arrived at the scene. Clay asked Perry to stay in the parking lot with that officer, while she and Clavijo went to talk to Blando Clay and Clavijo then entered the apartment building and took the stairs to the fourth floor, where Blandon’s and Clavijo’s apartments were located. They met Blandon in the hallway just outside the open door to her apartment. Asked to describe what she had seen, Blandon stated that, around 2:30 a.m., she saw from her kitchen window a tall, African-American man roaming the parking lot and looking into cars. Eventually, the man circled Clavijo’s car, opened the trunk, and removed a large box.2 —————— 2 The box, which Clay found on the ground near where she first en- countered Perry, contained car-stereo speakers. App. 177a–178a. 4 PERRY v. NEW HAMPSHIRE Opinion of the Court Clay asked Blandon for a more specific description of the ma Blandon pointed to her kitchen window and said the person she saw breaking into Clavijo’s car was standing in the parking lot, next to the police officer. Perry’s arrest followed this identificatio About a month later, the police showed Blandon a pho- tographic array that included a picture of Perry and asked her to point out the man who had broken into Clavijo’s car. Blandon was unable to identify Perry. B Perry was charged in New Hampshire state court with one count of theft by unauthorized taking and one count of criminal mischief.3 Before trial, he moved to suppress Blandon’s identification on the ground that admitting it at trial would violate due process. Blandon witnessed what amounted to a one-person showup in the parking lot, Perry asserted, which all but guaranteed that she would identify him as the culprit. at 15a–16a. The New Hampshire Superior Court denied the motio at 82a–88a. To determine whether due process pro- hibits the introduction of an out-of-court identification at trial, the Superior Court said, this Court’s decisions in- struct a two-step inquiry. First, the trial court must de- cide whether the police used an unnecessarily suggestive identification procedure. at 85a. If they did, the court must next consider whether the improper identification procedure so tainted the resulting identification as to render it unreliable and therefore inadmissible. and Manson v. Brathwaite, ). Perry’s challenge, the Superior Court concluded, failed at step one: Blandon’s identification of Perry on the night —————— 3 The theft charge was based on the taking of items from Clavijo’s car, while the criminal mischief count was founded on the shattering of Clavijo’s car window. Cite as: 565 U. S. (2012) 5 Opinion of the Court of the crime did not result from an unnecessarily sugges- tive procedure “manufacture[d] by the police.” App. 86a–87a. Blandon pointed to Perry “spontaneously,” the court noted, “without any inducement from the police.” at 85a–86a. Clay did not ask Blandon whether the man standing in the parking lot was the man Blandon had seen breaking into Clavijo’s car. Nor did Clay ask Blandon to move to the window from which she had ob- served the break-i at 86a. The Superior Court recognized that there were reasons to question the accuracy of Blandon’s identification: the parking lot was dark in some locations; Perry was stand- ing next to a police officer; Perry was the only African- American man in the vicinity; and Blandon was unable, later, to pick Perry out of a photographic array. at 86a–87a. But “[b]ecause the police procedures were not unnecessarily suggestive,” the court ruled that the relia- bility of Blandon’s testimony was for the jury to consider. at 87a. At the ensuing trial, Blandon and Clay testified to Blandon’s out-of-court identificatio The jury found Perry guilty of theft and not guilty of criminal mischief. On appeal, Perry repeated his challenge to the admissi- bility of Blandon’s out-of-court identificatio The trial court erred, Perry contended, in requiring an initial show- ing that the police arranged the suggestive identification procedure. Suggestive circumstances alone, Perry argued, suffice to trigger the court’s duty to evaluate the reliability of the resulting identification before allowing presentation of the evidence to the jury. The New Hampshire Supreme Court rejected Perry’s argument and affirmed his convictio at 9a–11a. Only where the police employ suggestive identification techniques, that court held, does the Due Process Clause require a trial court to assess the reliability of identifica- tion evidence before permitting a jury to consider it. 6 PERRY v. NEW HAMPSHIRE Opinion of the Court at 10a–11a. We granted certiorari to resolve a division of opinion on the question whether the Due Process Clause requires a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circum- stances not arranged by the police. 563 U. S. (2011).4 II A The Constitution, our decisions indicate, protects a de- fendant against a conviction based on evidence of ques- tionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to per- suade the jury that the evidence should be discounted as unworthy of credit. Constitutional safeguards available to defendants to counter the State’s evidence include the Sixth Amendment rights to counsel, ; compulsory process, ; and confrontation plus cross-examination of witnesses, Dela- —————— 4 Compare United (Due process requires federal courts to “scrutinize all suggestive identi- fication procedures, not just those orchestrated by the police.”); Dunni- ; with United (Due process check is required only in cases involving improper state actio); United States v. Zeiler, 470 F.2d 717, 720 ; ; (Ten 2002) ; 25 P.3d 717, 729 (2001) ; 417–418, 519 S.E. 2d 912, 914–915 (1999) ; (Ind. 1993) ; ; 541–542, 562 N.E.2d 797, 805 ; 310–311, ; Cite as: 565 U. S. (2012) 7 Opinion of the Court Apart from these guarantees, we have recognized, state and federal statutes and rules ordinarily govern the ad- missibility of evidence, and juries are assigned the task of determining the reliability of the evidence presented at trial. See (“Our legal system is built on the premise that it is the province of the jury to weigh the credibility of competing witnesses.”). Only when evidence “is so extremely unfair that its admission violates fundamental conceptions of justice,” have we im- posed a constraint tied to the Due Process Clause. See, e.g., (Due process prohibits the State’s “knowin[g] use [of] false evidence,” because such use violates “any concept of or- dered liberty.”). Contending that the Due Process Clause is implicated here, Perry relies on a series of decisions involving police- arranged identification In first of those decisions, a witness identified the defendant as her assailant after police offic- ers brought the defendant to the witness’ hospital room. At the time the witness made the identifica- tion, the defendant—the only African-American in the room—was handcuffed and surrounded by police officers. Although the police-arranged showup was undenia- bly suggestive, the Court held that no due process viola- tion occurred. Crucial to the Court’s decision was the procedure’s necessity: The witness was the only person who could identify or exonerate the defendant; the witness could not leave her hospital room; and it was uncertain whether she would live to identify the defendant in more neutral circumstances. A year later, in (1968), the Court addressed a due process challenge to police use of a photographic array. When a witness identi- 8 PERRY v. NEW HAMPSHIRE Opinion of the Court fies the defendant in a police-organized photo lineup, the Court ruled, the identification should be suppressed only where “the photographic identification procedure was so [unnecessarily] suggestive as to give rise to a very sub- stantial likelihood of irreparable misidentificatio” at 384–385. Satisfied that the photo array used by Federal Bureau of Investigation agents in Simmons was both necessary and unlikely to have led to a mistaken identifi- cation, the Court rejected the defendant’s due process challenge to admission of the identificatio at 385– 386. In contrast, the Court held in that due process required the exclu- sion of an eyewitness identification obtained through police-arranged procedures that “made it all but inevitable that [the witness] would identify [the defendant].” at 443. Synthesizing previous decisions, we set forth in Neil v. and reiterated in Manson v. Brathwaite, the approach appropri- ately used to determine whether the Due Process Clause requires suppression of an eyewitness identification taint- ed by police arrangement. The Court emphasized, first, that due process concerns arise only when law enforce- ment officers use an identification procedure that is both suggestive and unnecessary. ; 409 U.S., at 198. Even when the police use such a procedure, the Court next said, suppression of the resulting identifi- cation is not the inevitable consequence. Brathwaite, 432 U.S., at 112–113; –199. A rule requiring automatic exclusion, the Court rea- soned, would “g[o] too far,” for it would “kee[p] evidence from the jury that is reliable and relevant,” and “may result, on occasion, in the guilty going free.” Brathwaite, ; see (when an “identification is reliable despite an unnecessarily suggestive [police] identi- fication procedure,” automatic exclusion “is a Draconian Cite as: 565 U. S. (2012) 9 Opinion of the Court sanction,” one “that may frustrate rather than promote justice”). Instead of mandating a per se exclusionary rule, the Court held that the Due Process Clause requires courts to assess, on a case-by-case basis, whether improper police conduct created a “substantial likelihood of misidentifi- catio” ; see Brathwaite, 432 U.S., “[R]eliability [of the eyewitness identifica- tion] is the linchpin” of that evaluation, the Court stated in Brathwaite. Where the “indicators of [a witness’] ability to make an accurate identification” are “outweighed by the corrupting effect” of law enforcement suggestion, the identification should be suppressed. at 114, 116. Otherwise, the evidence (if admissible in all other respects) should be submitted to the jury.5 Applying this “totality of the circumstances” approach, the Court held in that law enforce- ment’s use of an unnecessarily suggestive showup did not require suppression of the victim’s identification of her –200. Notwithstanding the improper procedure, the victim’s identification was relia- ble: She saw her assailant for a considerable period of time under adequate light, provided police with a detailed de- scription of her attacker long before the showup, and had “no doubt” that the defendant was the person she had see Similarly, the Court concluded in Brathwaite that police use of an unnecessarily suggestive photo array did not —————— 5 Among “factors to be considered” in evaluating a witness’ “ability to make an accurate identification,” the Court listed: “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontatio” Manson v. Brathwaite, 432 U.S. 98, 114 ). 10 PERRY v. NEW HAMPSHIRE Opinion of the Court require exclusion of the resulting identificatio 432 U.S., –117. The witness, an undercover police officer, viewed the defendant in good light for several minutes, provided a thorough description of the suspect, and was certain of his identificatio Hence, the “indi- cators of [the witness’] ability to make an accurate identi- fication [were] hardly outweighed by the corrupting effect of the challenged identificatio” B Perry concedes that, in contrast to every case in the Stovall line, law enforcement officials did not arrange the suggestive circumstances surrounding Blandon’s identifi- catio See Brief for Petitioner 34; Tr. of Oral Arg. 5 (counsel for Perry) (“[W]e do not allege any manipulation or intentional orchestration by the police.”). He contends, however, that it was mere happenstance that each of the Stovall cases involved improper police actio The rationale underlying our decisions, Perry asserts, supports a rule requiring trial judges to prescreen eyewitness evi- dence for reliability any time an identification is made under suggestive circumstances. We disagree. Perry’s argument depends, in large part, on the Court’s statement in Brathwaite that “reliability is the linchpin in determining the admissibility of identification testimony.” 432 U.S., If reliability is the linchpin of admissi- bility under the Due Process Clause, Perry maintains, it should make no difference whether law enforcement was responsible for creating the suggestive circumstances that marred the identificatio Perry has removed our statement in Brathwaite from its mooring, and thereby attributes to the statement a mean- ing a fair reading of our opinion does not bear. As just at 8–9, the Brathwaite Court’s reference to reliability appears in a portion of the opinion concerning the appropriate remedy when the police use an unneces- Cite as: 565 U. S. (2012) 11 Opinion of the Court sarily suggestive identification procedure. The Court adopted a judicial screen for reliability as a course prefer- able to a per se rule requiring exclusion of identification evidence whenever law enforcement officers employ an improper procedure. The due process check for reliability, Brathwaite made plain, comes into play only after the defendant establishes improper police conduct. The very purpose of the check, the Court noted, was to avoid depriv- ing the jury of identification evidence that is reliable, notwithstanding improper police conduct. 432 U.S., at 112–113.6 Perry’s contention that improper police action was not essential to the reliability check Brathwaite required is echoed by the dissent. Post, at 3–4. Both ignore a key premise of the Brathwaite decision: A primary aim of ex- cluding identification evidence obtained under unneces- sarily suggestive circumstances, the Court said, is to deter law enforcement use of improper lineups, showups, and photo arrays in the first place. See Alerted to the prospect that identification evidence im- properly obtained may be excluded, the Court reasoned, police officers will “guard against unnecessarily suggestive ” This deterrence rationale is inapposite in cases, like Perry’s, in which the police engaged in no improper conduct. another deci- sion in the Stovall line, similarly shows that the Court has linked the due process check, not to suspicion of eyewit- ness testimony generally, but only to improper police arrangement of the circumstances surrounding an identi- —————— 6 The Court’s description of the question presented in Brathwaite assumes that improper state action occurred: “[Does] the Due Process Clause of the Fourteenth Amendment compe[l] the exclusion, in a state criminal trial, apart from any consideration of reliability, of pretrial identification evidence obtained by a police procedure that was both suggestive and unnecessary.” 12 PERRY v. NEW HAMPSHIRE Opinion of the Court ficatio The defendants in Coleman contended that a witness’ in-court identifications violated due process, because a pretrial stationhouse lineup was “so unduly prejudicial and conducive to irreparable misidentification as fatally to taint [the later identifications].” 399 U.S., at 3 (plurality opinion). The Court rejected this argument. at 5–6 (plurality opinion), 13–14 (Black, J., concur- ring), 22, 2 (Burger, C. J., dissenting), 28, 2 (Stewart, J., dissenting). No due process violation occurred, the plurality because nothing “the police said or did prompted [the witness’] virtually spontaneous identifica- tion of [the defendants].” True, Coleman was the only person in the lineup wearing a hat, the plurality noted, but “nothing in the record show[ed] that he was required to do so.” See also (Where the “crucial element of police overreaching” is missing, the admissibility of an allegedly unreliable confession is “a matter to be governed by the evidentiary laws of the forum, and not by the Due Process Clause.”). Perry and the dissent place significant weight on United describing it as a decision not anchored to improper police conduct. See Brief for Petitioner 12, 15, 21–22, 28; post, at 2–4, 8–10. In fact, the risk of police rigging was the very danger to which the Court responded in when it recognized a defendant’s right to counsel at postindictment, police- organized identification 388 U.S., at 235–236. “[T]he confrontation compelled by the State between the accused and the victim or witnesses,” the Court began, “is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.” (emphasis added). “A major factor contributing to the high incidence of miscarriage of justice from mistaken identification,” the Court continued, “has been the degree of suggestion inher- Cite as: 565 U. S. (2012) 13 Opinion of the Court ent in the manner in which the prosecution presents the suspect to witnesses for pretrial identificatio” (emphasis added). To illustrate the improper suggestion it was concerned about, the Court pointed to police-designed lineups where “all in the lineup but the suspect were known to the identifying witness, the other partici- pants in [the] lineup were grossly dissimilar in appearance to the suspect, only the suspect was required to wear distinctive clothing which the culprit allegedly wore, the witness is told by the police that they have caught the culprit after which the defendant is brought before the witness alone or is viewed in jail, the suspect is point- ed out before or during a lineup, the participants in the lineup are asked to try on an article of clothing which fits only the suspect.” at Beyond genuine debate, then, prevention of unfair police practices prompted the Court to extend a defendant’s right to coun- sel to cover postindictment lineups and showups. at 235. Perry’s argument, reiterated by the dissent, thus lacks support in the case law he cites. Moreover, his position would open the door to judicial preview, under the banner of due process, of most, if not all, eyewitness identifica- tions. External suggestion is hardly the only factor that casts doubt on the trustworthiness of an eyewitness’ tes- timony. As one of Perry’s amici points out, many other factors bear on “the likelihood of misidentification,” post, at 9—for example, the passage of time between exposure to and identification of the defendant, whether the witness was under stress when he first encountered the suspect, how much time the witness had to observe the suspect, how far the witness was from the suspect, whether the suspect carried a weapon, and the race of the suspect and the witness. Brief for American Psychological Association as Amicus Curiae 9–12. There is no reason why an iden- tification made by an eyewitness with poor vision, for ex- 14 PERRY v. NEW HAMPSHIRE Opinion of the Court ample, or one who harbors a grudge against the defend- ant, should be regarded as inherently more reliable, less of a “threat to the fairness of trial,” post, at 14, than the identification Blandon made in this case. To embrace Perry’s view would thus entail a vast enlargement of the reach of due process as a constraint on the admission of evidence. Perry maintains that the Court can limit the due pro- cess check he proposes to identifications made under “suggestive circumstances.” Tr. of Oral Arg. 11–14. Even if we could rationally distinguish suggestiveness from other factors bearing on the reliability of eyewitness evi- dence, Perry’s limitation would still involve trial courts, routinely, in preliminary examinations. Most eyewitness identifications involve some element of suggestio In- deed, all in-court identifications do. Out-of-court identifi- cations volunteered by witnesses are also likely to involve suggestive circumstances. For example, suppose a witness identifies the defendant to police officers after seeing a photograph of the defendant in the press captioned “theft suspect,” or hearing a radio report implicating the defend- ant in the crime. Or suppose the witness knew that the defendant ran with the wrong crowd and saw him on the day and in the vicinity of the crime. Any of these circum- stances might have “suggested” to the witness that the defendant was the person the witness observed commit- ting the crime. C In urging a broadly applicable due process check on eyewitness identifications, Perry maintains that eyewit- ness identifications are a uniquely unreliable form of evidence. See Brief for Petitioner 17–22 (citing studies showing that eyewitness misidentifications are the leading cause of wrongful convictions); Brief for American Psycho- logical Association as Amicus Curiae 14–17 (describing Cite as: 565 U. S. (2012) 15 Opinion of the Court research indicating that as many as one in three eyewit- ness identifications is inaccurate). See also post, at 14–17. We do not doubt either the importance or the fallibility of eyewitness identifications. Indeed, in recognizing that defendants have a constitutional right to counsel at postindictment police lineups, we observed that “the an- nals of criminal law are rife with instances of mistaken identificatio” 388 U.S., We have concluded in other contexts, however, that the potential unreliability of a type of evidence does not alone render its introduction at the defendant’s trial fundamen- tally unfair. See, e.g., 556 U.S., at (declin- ing to “craft a broa[d] exclusionary rule for uncorroborated statements obtained [from jailhouse snitches],” even though “rewarded informant testimony” may be inherently untrustworthy); (rejecting ar- gument that the introduction of evidence concerning acquitted conduct is fundamentally unfair because such evidence is “inherently unreliable”). We reach a similar conclusion here: The fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess its creditworthiness. Our unwillingness to enlarge the domain of due process as Perry and the dissent urge rests, in large part, on our recognition that the jury, not the judge, traditionally de- termines the reliability of evidence. See We also take account of other safeguards built into our adver- sary system that caution juries against placing undue weight on eyewitness testimony of questionable reliability. These protections include the defendant’s Sixth Amend- ment right to confront the eyewitness. See Maryland v. Craig, (“The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant.”). Another is the 16 PERRY v. NEW HAMPSHIRE Opinion of the Court defendant’s right to the effective assistance of an attorney, who can expose the flaws in the eyewitness’ testimony during cross-examination and focus the jury’s attention on the fallibility of such testimony during opening and closing arguments. Eyewitness-specific jury instructions, which many federal and state courts have adopted,7 likewise warn the jury to take care in appraising identification evidence. See, e.g., United States v. Telfaire, 469 F.2d 552, 558–559 (D. C. Circuit Model Jury Instructions) (“If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to him for iden- tification, you should scrutinize the identification with great care.”). See also 556 U.S., at (citing jury instructions that informed jurors about the unrelia- bility of uncorroborated jailhouse-informant testimony as a reason to resist a ban on such testimony); 493 —————— 7 See Model Crim. Jury Instr. No. 4.15 ; United States v. Holley, ; Pattern Crim. Jury Instr. No. 1.29 (CA5 2001); Pattern Crim. Jury Instr. No. 7.11 (CA6 2011); Fed. Crim. Jury Instr. No. 3.08 (CA7 1999); Model Crim. Jury Instr. for the District Courts No. 4.08 (CA8 2011); Model Crim. Jury Instr. No. 4.11 ; Crim. Pattern Jury Instr. No. 1.29 (CA10 2011); Pattern Jury Instr. (Crim. Cases) Spec. Instr. No. 3 ; Rev. Ariz. Jury Instr., Crim., No. 39 (3d ed. 2008); 1 Judicial Council of Cal. Crim. Jury Instr. No. 315 (Summer 2011); Con Crim. Jury Instr. 2.6– 4 (2007); 2 Ga. Suggested Pattern Jury Instr. (Crim. Cases) No. 1.35.10 (4th ed. 2011); Ill. Pattern Jury Instr., Crim., No. 3.15 (Supp. 2011); Pattern Instr., Ka 3d, Crim., No. 52.20 (2011); 1 Md. Crim. Jury Instr. & Commentary 2.57(A), 2.57(B) ; Mass. Crim. Model Jury Instr. No. 9.160 ; 10 Min Jury Instr. Guides, Crim., No. 3.19 (Supp. 2006); N. H. Crim. Jury Instr. No. 3.06 ; N. Y. Crim. Jury Instr. “Identification—One Witness” and “Identification—Witness Plus” (2d ed. 2011); Okla. Uniform Jury Instr., Crim., No. 9–19 (Supp. 2000); 1 Pa. Suggested Standard Crim. Jury Instr. No. 4.07B ; Ten Pattern Jury Instr., Crim., No. 42.05 (15th ed. 2011); Utah Model Jury Instr. CR404 ; Model Instructions from the Vt. Crim. Jury Instr. Comm. Nos. CR5– 601, CR5–605 (2003); W. Va. Crim. Jury Instr. No. 5.05 (6th ed. 2003). Cite as: 565 U. S. (2012) 17 Opinion of the Court U. S., at –353. The constitutional requirement that the government prove the defendant’s guilt beyond a reasonable doubt also impedes convictions based on dubi- ous identification evidence. State and federal rules of evidence, moreover, permit trial judges to exclude relevant evidence if its probative value is substantially outweighed by its prejudicial impact or potential for misleading the jury. See, e.g., Fed. Rule Evid. 403; N. H. Rule Evid. 403 (2011). See also Tr. of Oral Arg. 19–22 (inquiring whether the standard Perry seeks differs materially from the one set out in Rule 403). In appropriate cases, some States also permit defendants to present expert testimony on the hazards of eyewitness identification evidence. See, e.g., (“We expect that in cases involving eyewitness identification of strangers or near-strangers, trial courts will routinely admit expert testimony [on the dangers of such evidence].”). Many of the safeguards just noted were at work at Perry’s trial. During her opening statement, Perry’s court- appointed attorney cautioned the jury about the vulnera- bility of Blandon’s identificatio App. 115a (Blandon, “the eyewitness that the State needs you to believe[,] can’t pick [Perry] out of a photo array. How carefully did she really see what was going on? How well could she really see him?”). While cross-examining Blandon and Officer Clay, Perry’s attorney constantly brought up the weaknesses of Blandon’s identificatio She highlighted: (1) the significant distance between Blandon’s window and the parking lot, at 226a; (2) the lateness of the hour, at 225a; (3) the van that partly obstructed Blandon’s view, at 226a; (4) Blandon’s concession that she was “so scared [she] really didn’t pay attention” to what Perry was wearing, at a; (5) Blandon’s inability to de- scribe Perry’s facial features or other identifying marks, at 205a, a–235a; (6) Blandon’s failure to pick Perry 18 PERRY v. NEW HAMPSHIRE Opinion of the Court out of a photo array, at 235a; and (7) Perry’s position next to a uniformed, gun-bearing police officer at the moment Blandon made her identification, at 202a– 205a. Perry’s counsel reminded the jury of these frailties during her summatio at 374a–375a (Blandon “wasn’t able to tell you much about who she saw She couldn’t pick [Perry] out of a lineup, out of a photo array [Blandon said] [t]hat guy that was with the police officer, that’s who was circling. Again, think about the context with the guns, the uniforms. Powerful, powerful context clues.”). After closing arguments, the trial court read the jury a lengthy instruction on identification testimony and the factors the jury should consider when evaluating it. at 399a–401a. The court also instructed the jury that the defendant’s guilt must be proved beyond a reasonable doubt, at 390a, 392a, 395a–396a, and specifically cautioned that “one of the things the State must prove [beyond a reasonable doubt] is the identification of the defendant as the person who committed the offense,” at 398a–399a. Given the safeguards generally applicable in criminal trials, protections availed of by the defense in Perry’s case, we hold that the introduction of Blandon’s eyewitness testimony, without a preliminary judicial assessment of its reliability, did not render Perry’s trial fundamentally unfair. * * * For the foregoing reasons, we agree with the New Hampshire courts’ appraisal of our decisions. See at 4–5. Finding no convincing reason to alter our prece- dent, we hold that the Due Process Clause does not re- quire a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circum- Cite as: 565 U. S. (2012) 19 Opinion of the Court stances arranged by law enforcement. Accordingly, the judgment of the New Hampshire Supreme Court is Affirmed. Cite as: 565 U. S. (2012) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES No. 10–8974 BARION PERRY, PETITIONER v. |
Justice Marshall | majority | false | Dixson v. United States | 1984-02-22T00:00:00 | null | https://www.courtlistener.com/opinion/111107/dixson-v-united-states/ | https://www.courtlistener.com/api/rest/v3/clusters/111107/ | 1,984 | 1983-042 | 2 | 5 | 4 | These consolidated cases present the question whether officers of a private, nonprofit corporation administering and expending federal community development block grants are "public officials" for purposes of the federal bribery statute. 18 U.S. C. § 201(a).
I
In 1979, the city of Peoria received two federal block grants from the Department of Housing and Urban Development (HUD). The first was a $400,000 Community Development Block Grant; the second a $638,000 Metro Reallocation Grant. Both grants were funded through the Housing and Community Development Act of 1974 (HCDA), 88 Stat. 633, as amended, 42 U.S. C. §§ 5301-5320 (1976 ed. and Supp. V). Under that Act, the Secretary of HUD is authorized to dispense federal block grants to state and local governments and nonprofit community organizations for urban renewal programs such as the rehabilitation of residential structures, code enforcement in deteriorating areas, and the construction of public works projects.
The city of Peoria subsequently designated United Neighborhoods, Inc. (UNI), a community-based, social-service organization, to be the city's subgrantee in charge of the administration of the federal block grant funds.[1] UNI in turn hired petitioner Dixson to serve as the corporation's Executive Director and petitioner Hinton as its Housing Rehabilitation Coordinator. Petitioner Dixson was responsible for the general supervision of UNI's programs, including fiscal control and execution of contracts. Petitioner Hinton's duties included contracting with persons applying for housing rehabilitation assistance, and contracting with demolition firms.
*485 A federal grand jury named petitioners in an 11-count indictment filed on March 12, 1981. The indictment charged that petitioners, as "public officials" under 18 U.S. C. § 201(a), had sought a series of bribes in return for "being influenced in their performance of an official act in respect to the awarding of housing rehabilitation contracts" in violation of 18 U.S. C. §§ 201(c)(1),(2).
According to the Government's evidence at trial, petitioners used their positions to extract $42,694 in kickbacks from contractors seeking to work on UNI's housing rehabilitation projects. One contractor testified how he was approached by petitioner Hinton and persuaded to pay petitioners 10 percent of each housing rehabilitation contract that petitioners awarded him. The contractor explained that on 10 occasions, he received first draw checks from UNI for 20 percent of the contract price, deposited the check at his bank, and paid half the amount of the check in cash to petitioners. A second contractor testified as to substantially the same arrangement.
Before trial, petitioners moved to dismiss the indictment on the grounds that they were not "public officials" within the meaning of the federal statute. Their motions were denied, and following a jury trial in the United States District Court for the Central District of Illinois, petitioners were convicted as charged. The District Court sentenced each to 7 1/2 years' imprisonment, to be followed by 3 years' probation. Petitioners appealed to the United States Court of Appeals for the Seventh Circuit, which affirmed. 683 F.2d 195 (1982). Both petitioners filed petitions for writs of certiorari, and we granted the writs. 459 U.S. 1085 (1982). We now affirm.
II
Petitioners' sole claim is that they were not "public officials" within the meaning of 18 U.S. C. § 201(a) and therefore not subject to prosecution under the federal bribery *486 statute.[2] Since our disposition of this claim turns on the relationship between petitioners and the Federal Government, we begin our discussion with an analysis of the HCDA block grant program and petitioners' role in administering that program.
Congress passed the HCDA to meet the social, economic, and environmental problems facing cities. 42 U.S. C. § 5301(a) (1976 ed. and Supp. V). The primary objective of the Act is "the development of viable urban communities." § 5301(c). While the HCDA addressed a national problem, Congress enacted the legislation as a federal block grant statute, under which the day-to-day administration of the federal program, including the actual expenditure of federal funds, is delegated to state and local authorities.
The HCDA creates a "consistent system of Federal aid," § 5301(d), by distributing funds committed by Congress through organizations outside the Federal Government, while *487 retaining federal control to assure compliance with statutory federal objectives and implementing regulations. Congress itself specified the 17 categories of community projects upon which HCDA grants can be spent. § 5305. Within the federal constraints, grant recipients design programs addressing local needs. To obtain federal funds, local communities must submit to the Secretary a plan made in accordance with national urban growth policies, and supplement the plan with annual performance reports. §§ 5304(a), (d). The Federal Government retains the right to audit the records of HCDA programs, § 5304(e), and to recover improperly expended funds. § 5311(b)(2).
HCDA grantees give assurances to HUD that they, and their subgrantees, will abide by specific financial accountability, equal opportunity, fair labor, environmental, and other requirements. §§ 5304, 5309, 5310; 24 CFR § 570.307 (1983). By administering HCDA funds, private nonprofit organizations subject themselves to numerous federal restrictions beyond those imposed directly by HUD. Like other recipients of federal grant funds, HUD grantees and subgrantees are subject to a uniform audit procedure, adopted by the Federal Government as "an integral element" of "full accountability by those entrusted with the responsibility for administering the programs."[3]
UNI voluntarily assumed the status of an HCDA subgrantee when UNI and the city of Peoria signed five separate grant agreements in March and October 1979, pursuant to *488 which UNI hired petitioners. Under the first four of these agreements, the city promised to provide UNI with $492,500, and UNI committed itself to spend these funds on urban renewal projects and related administrative costs, such as salaries and fringe benefits for UNI employees. The agreements specifically allocated funds to petitioners' salaries: $16,000 of the city grants was for UNI's Executive Director and $15,500 was for a Rehabilitation Coordinator.
In a fifth agreement, Peoria promised UNI another $669,200 to be used "solely for a program operated by UNI which provides loans and grants to the rehabilitation of residential housing units in the designated Metropolitan Reallocation Grant Area." One anomaly in the five Peoria-UNI contracts is that, beyond this reference to the "Metropolitan Reallocation Grant Area" and to "312 loans,"[4] none of these first contracts explicitly refers to the federal Act or to UNI's new status of subgrantee.[5] UNI's application to participate in the federally funded program, however, unequivocally shows UNI's awareness of the Federal Government's relationship to, and interest in, the grant agreements. UNI's proposal to Peoria stated: "[W]e wish to undertake a joint effort with the City of Peoria to achieve the common goals as set forth in the Housing and Community Development *489 Act to insure safe, sanitary and decent housing for all people." Record, Govt. Exh. 19. (Emphasis added.)
Moreover, there is no suggestion in the record that petitioners and other UNI executives failed to understand that they were involved in a federal program. As described above, the task of distributing HCDA funds is governed in numerous respects by federal statutes and regulations. Knowledge of the existence and applicability of these federal requirements and guidelines is presumed as a matter of law.[6] As a matter of fact, the federal interest in protecting the integrity of its block grant funds undoubtedly was driven home to petitioners when, in early 1980, in the midst of the period covered by the Government's indictment, Arthur Andersen & Co. conducted an audit of UNI's records in accordance with HUD's Audit Guide and Standards for Community Development Block Grant Recipients.
Petitioners' responsibilities included receiving applications for housing assistance and soliciting contractor bids for qualified rehabilitation proposals. According to UNI's organizational structure, petitioners were supposed to submit the bids on qualified proposals to UNI's Housing Committee for final approval, but, in fact, the Committee's review was a "mere formality."[7] As a practical matter, petitioners alone decided which property owners and contractors in the city of Peoria would be the beneficiaries of the federal funds made available to the city through the HCDA block grant program.
III
Petitioners contend now, as they have throughout this litigation, that, as executives of a private nonprofit corporation unaffiliated with the Federal Government, they were never *490 "public officials" as Congress defined that term. 18 U.S. C. § 201(a).
Under § 201(a), the term "public official" includes "an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, . . . in any official function, under or by authority of any such department, agency, or branch of Government." There being no basis for claiming that petitioners were officers or employees of the United States, the Government's sole contention is that petitioners acted "for or on behalf of" the United States "in an official function" under the authority of HUD.
Petitioners argue that they cannot be considered to have acted "for or on behalf of the United States" because neither they nor their employer UNI ever entered into any agreement with the United States or any subdivision of the Federal Government. In advancing this position, petitioners rely primarily on two Second Circuit decisions holding that a New York City employee involved in the administration of the federal Model Cities Program was not a public official under § 201. United States v. Loschiavo, 531 F.2d 659 (1976); United States v. Del Toro, 513 F.2d 656, cert. denied, 423 U.S. 826 (1975). Petitioners and these Second Circuit decisions rest on the premise that an individual does not work "for or on behalf of the United States . . . in any official function" without some formal bond with the United States, such as an agency relationship, an employment contract, or a direct contractual obligation.
The Government, in response, argues that the term "public official" has a broader sweep, covering not only parties in privity with the United States, but also any private individuals responsible for administering federally funded and federally supervised programs. The Government defends the decision of the Seventh Circuit in the instant cases which held that the "substantial federal supervision over the cities and all sub-grantees responsible for local distribution of grant funds" made petitioners' public officials for purposes of § 201. *491 683 F. 2d, at 197-198. The court reasoned that petitioners "were acting as federal agents in the sense of having discretion in administering the expenditure of federal funds." Id., at 199.
As is often the case in matters of statutory interpretation, the language of § 201(a) does not decide the dispute. The words can be interpreted to support either petitioners' or the Government's reading. We must turn, therefore, to the legislative history of the federal bribery statute to determine whether these materials clarify which of the proposed readings is consistent with Congress' intent. If the legislative history fails to clarify the statutory language, our rule of lenity would compel us to construe the statute in favor of petitioners, as criminal defendants in these cases. See Rewis v. United States, 401 U.S. 808, 812 (1971).
A
Congress passed the current federal bribery provisions, including § 201(a), in 1962, as part of an effort to reformulate and rationalize all federal criminal statutes dealing with the integrity of government. At the time of the 1962 revisions, general federal bribery statutes had been in existence for more than a century. From the start, Congress drafted its bribery statutes with broad jurisdictional language,[8] and *492 periodically amended the provisions to ensure that the scope of federal criminal liability kept pace with the growth and diversification of the Federal Government.[9] Prior to 1962, in recognition of Congress' apparent desire for the federal bribery statutes to have wide application, the federal judiciary interpreted the statutes and, indeed, the phrase "person acting for or on behalf of the United States" to have a broad jurisdictional reach.[10]
When drafting § 201(a), Congress was aware of previous federal bribery statutes, as well as the judicial interpretation given those statutes. The phrase at issue here "person *493 acting for or on behalf of the United States" was taken directly from predecessor bribery statutes.[11] Moreover, the reenactment of this language was no happenstance. Earlier versions of the 1962 statute omitted the phrase, but Department of Justice testimony that "its removal would be undesirable" convinced Congress to retain the language.[12]
Standing alone, Congress' purposeful retention of the "acting for or on behalf of the Government" phrase does not advance our inquiry into the scope and meaning of those words. When, however, we compare the phrase as enacted with the proposed definition of "public official" in earlier draft bills that were not enacted, we conclude that Congress could not have meant to restrict the definition, as petitioners argue, to those persons in an employment or agency relationship *494 with the Federal Government. Such persons were clearly covered by successive, rejected versions of the reform bill, which defined "public official" in pertinent part as "an officer, agent, or employee of the United States in the executive, legislative, or judicial branch of the Government, or of any agency."[13] If Congress intended courts to restrict their reading of the jurisdictional definition to persons in a formal employment or agency relationship with the Government, it would have had no reason to accede to the Department of Justice's urging to retain the "acting for or on behalf of" language.
Moreover, we find the legislative history of § 201(a) inconsistent with the view that the words "person acting for or on behalf of the United States" were added simply to bring within the jurisdiction of the federal bribery laws those individuals tied to the Federal Government by direct contractual obligations. Committee Reports from both Houses of Congress emphasized that the new bribery laws made "no significant changes of substance" and "would not restrict the broad scope of the present bribery statutes as construed by the courts." S. Rep. No. 2213, 87th Cong., 2d Sess., 4 (1962); H. R. Rep. No. 748, 87th Cong., 1st Sess., 17 (1961). Federal courts interpreting the federal bribery laws prior to 1962 had generally avoided formal distinctions, such as the requirement of a direct contractual bond, that would artificially narrow the scope of federal criminal jurisdiction. See n. 10, supra.
Of particular relevance to the instant case is the House Judiciary Committee's citation of the Second Circuit's decision in United States v. Levine, 129 F.2d 745 (1942), as an example *495 of how the judiciary had in the past properly construed the federal bribery laws. See H. R. Rep. No. 748, supra, at 17. The Levine decision involved the application of the 1909 bribery statute to a low-level official in a decentralized federal assistance program.[14] The defendant in Levine worked for a locally administered price stabilization program, the New York Metropolitan Milk Marketing Area,[15] and was responsible for receiving milk handlers' market surplus claims, and checking them for accuracy. Levine solicited a bribe from one of the handlers within his jurisdiction in return for his promise to prevent investigations of the claims.
Although hired by a Market Administrator who, in turn, had been appointed by the Secretary of Agriculture, Levine himself was neither employed by the United States nor paid with federal funds. Nevertheless, Levine's duties were critical to the proper administration of the federally assisted New York Milk Marketing Area. Because claims for payment were not rechecked by anyone else, his duties resulted in expenditures from the Federal Treasury. After reviewing *496 these facts, the Second Circuit concluded that, notwithstanding the absence of a direct contractual bond between the defendant and the United States, Levine's responsible position made him a "public official" for purposes of the federal bribery laws. 129 F.2d, at 747. By explicitly endorsing the Second Circuit's analysis in Levine, the House Judiciary Committee strongly intimated that the phrase "acting for or on behalf of the United States" covers something more than a direct contractual bond.
Congress' longstanding commitment to a broadly drafted federal bribery statute, its expressed desire to continue that tradition with the 1962 revisions, its affirmative adoption of the language at issue in this case, and the House Report's endorsement of the Second Circuit's reasoning in Levine, combine to persuade us that Congress never intended § 201 (a)'s open-ended definition of "public official" to be given the cramped reading proposed by petitioners. We agree with the Government that § 201(a) has been accurately characterized as a "comprehensive statute applicable to all persons performing activities for or on behalf of the United States," whatever the form of delegation of authority.[16] To determine whether any particular individual falls within this category, the proper inquiry is not simply whether the person had signed a contract with the United States or agreed to serve as the Government's agent, but rather whether the person occupies a position of public trust with official federal responsibilities. Persons who hold such positions are public officials within the meaning of § 201 and liable for prosecution under the federal bribery statute.
B
Given the structure of the HCDA program and petitioners' responsible positions as administrators of the subgrant, we *497 have little difficulty concluding that these persons served as public officials for purposes of § 201(a). As executives of UNI, petitioners had operational responsibility for the administration of the HCDA grant program within the city of Peoria. In allocating the federal resources made available to the city through the HCDA grant program, petitioners were charged with abiding by federal guidelines, which dictated both where and how the federal funds could be distributed. By accepting the responsibility for distributing these federal fiscal resources, petitioners assumed the quintessentially official role of administering a social service program established by the United States Congress.
Lest there be any doubt that Congress intended § 201(a) to cover local officials like petitioners, one need only compare petitioners to the defendant in Levine, whose conviction the House Judiciary Committee explicitly endorsed. See supra, at 494-496. Both Levine and petitioners worked in decentralized federal assistance programs. Both Levine and petitioners effectively determined who would be the beneficiary of federal dollars, and both solicited bribes to influence their official decisions. Levine held a position of public trust with official federal responsibilities: to collect and investigate the accuracy of data submitted by milk producers in support of their claims for federal subsidies. Petitioners held a position of public trust with official federal responsibilities: allocating federal resources, pursuant to complex statutory and regulatory guidelines, in the form of residential rehabilitation contracts. Indeed, in certain respects, petitioners performed duties that were more clearly "official" and more obviously undertaken "for or on behalf of the United States" than the responsibilities of the defendant in Levine. Where Levine was paid through a levy imposed on local businesses participating in the marketing order, petitioners' salaries were completely funded by the HCDA grant. Where Levine simply compiled data that were submitted to the Department of Agriculture for eventual disbursement, petitioners personally *498 bestowed the benefits of the HCDA program to residents of Peoria.
IV
A
In concluding that employment by the United States or some other similarly formal contractual or agency bond is not a prerequisite to prosecution under the federal bribery statute, we are supported by the majority of recent decisions in the Federal District Courts and Courts of Appeals. In United States v. Hollingshead, 672 F.2d 751 (1982), the Ninth Circuit determined that an employee of the Federal Reserve Bank of San Francisco, which is a private banking institution, was a public official for purposes of § 201(a) because the employee was responsible for carrying out tasks delegated by a federal agency and was subject to substantial federal supervision. The defendant received bribes and kickbacks from independent contractors to influence him in making capital purchase requisitions. In short, like petitioners, he was in a position of responsibility, acting for or on behalf of the Federal Government in administering expenditure of federal funds. Similarly, in United States v. Kirby, 587 F.2d 876, 879-880 (1978), the Seventh Circuit ruled that two privately employed grain inspectors, licensed by the Department of Agriculture, were public officials because they had responsibility for implementing a warehouse licensing program established by Congress.[17] For analogous reasons, the *499 Federal District Court for the District of New Mexico found a state employee responsible for administering the Farmers Home Administration rural housing improvement grant program to be included within § 201(a). United States v. Gallegos, 510 F. Supp. 1112, 1113-1114 (1981). Again, the defendant's official duties in processing grant applications directly influenced the expenditure of federal funds. See also United States v. Mosley, 659 F.2d 812 (CA7 1981); Harlow v. United States, 301 F.2d 361 (CA5), cert. denied, 371 U.S. 814 (1962); United States v. Griffin, 401 F. Supp. 1222 (SD Ind. 1975), affirmance order sub nom. United States v. Metro Management Corp., 541 F.2d 284 (CA7 1976). But see United States v. Loschiavo, 531 F.2d 659 (CA2 1976); United States v. Del Toro, 513 F.2d 656 (CA2), cert. denied, 423 U.S. 826 (1975); United States v. Hoskins, 520 F. Supp. 410 (ND Ill. 1981).
B
By finding petitioners to be public officials within the meaning of § 201(a), we do not mean to suggest that the mere presence of some federal assistance brings a local organization and its employees within the jurisdiction of the federal bribery statute or even that all employees of local organizations responsible for administering federal grant programs are public officials within the meaning of § 201(a). To be a public official under § 201(a), an individual must possess some degree of official responsibility for carrying out a federal program or policy. Our opinion today is, therefore, fully consistent with Krichman v. United States, 256 U.S. 363 *500 (1921), in which this Court ruled that a baggage porter, although employed by a federally controlled railroad, could not be said to have "acted for or on behalf of the United States" because the porter lacked any duties of an official character. Similarly, individuals who work for block grant recipients and business people who provide recipients with goods and services cannot be said to be public officials under § 201(a) unless they assume some duties of an official nature.
We recognize that the manner in which the HCDA block grant program combines local administration with federal funding initially creates some confusion as to whether local authorities administering HCDA grants should be considered public officials under the federal bribery statute.[18] However, when one examines the structure of the program and sees that the HCDA vests in local administrators like petitioners Hinton and Dixson the power to allocate federal fiscal resources for the purpose of achieving congressionally established goals, the confusion evaporates and it becomes clear that these local officials hold precisely the sort of positions of national public trust that Congress intended to cover with the "acting for or on behalf of" language in the bribery statute.[19] The Federal Government has a strong and legitimate *501 interest in prosecuting petitioners for their misuse of Government funds. As this Court has said in another, closely related context, grant funds to state and local governments "are as much in need of protection from [fraud] as any other federal money, and the statute does not make the extent of [grant moneys'] safeguard dependent upon the bookkeeping devices used for their distribution." United States ex rel. Marcus v. Hess, 317 U.S. 537, 544 (1943) (footnote omitted) (holding that one who contracts with a local governmental unit to work on federally funded projects can "cheat the United States" through the state intermediary).
Because we agree with the Seventh Circuit that petitioners were public officials under § 201(a), the judgment of the Court of Appeals is affirmed.
It is so ordered. | These consolidated cases present the question whether officers of a private, nonprofit corporation administering and expending federal community development block grants are "public officials" for purposes of the federal bribery statute. 18 U.S. C. 201(a). I In 1979, the city of Peoria received two federal block grants from the Department of Housing and Urban Development (HUD). The first was a $400,000 Community Development Block Grant; the second a $638,000 Metro Reallocation Grant. Both grants were funded through the Housing and Community Development Act of 1974 (HCDA), as amended, 42 U.S. C. 5301-5320 ( ed. and Supp. V). Under that Act, the Secretary of HUD is authorized to dispense federal block grants to state and local governments and nonprofit community organizations for urban renewal programs such as the rehabilitation of residential structures, code enforcement in deteriorating areas, and the construction of public works projects. The city of Peoria subsequently designated United Neighborhoods, Inc. (UNI), a community-based, social-service organization, to be the city's subgrantee in charge of the administration of the federal block grant funds.[1] UNI in turn hired petitioner Dixson to serve as the corporation's Executive Director and petitioner Hinton as its Housing Rehabilitation Coordinator. Petitioner Dixson was responsible for the general supervision of UNI's programs, including fiscal control and execution of contracts. Petitioner Hinton's duties included contracting with persons applying for housing rehabilitation assistance, and contracting with demolition firms. *485 A federal grand jury named petitioners in an 11-count indictment filed on March 12, The indictment charged that petitioners, as "public officials" under 18 U.S. C. 201(a), had sought a series of bribes in return for "being influenced in their performance of an official act in respect to the awarding of housing rehabilitation contracts" in violation of 18 U.S. C. 201(c)(1),(2). According to the Government's evidence at trial, petitioners used their positions to extract $42,694 in kickbacks from contractors seeking to work on UNI's housing rehabilitation projects. One contractor testified how he was approached by petitioner Hinton and persuaded to pay petitioners percent of each housing rehabilitation contract that petitioners awarded him. The contractor explained that on occasions, he received first draw checks from UNI for 20 percent of the contract price, deposited the check at his bank, and paid half the amount of the check in cash to petitioners. A second contractor testified as to substantially the same arrangement. Before trial, petitioners moved to dismiss the indictment on the grounds that they were not "public officials" within the meaning of the federal statute. Their motions were denied, and following a jury trial in the United States District Court for the Central District of Illinois, petitioners were convicted as charged. The District Court sentenced each to 7 1/2 years' imprisonment, to be followed by 3 years' probation. Petitioners appealed to the United States Court of Appeals for the Seventh Circuit, which affirmed. Both petitioners filed petitions for writs of certiorari, and we granted the writs. We now affirm. II Petitioners' sole claim is that they were not "public officials" within the meaning of 18 U.S. C. 201(a) and therefore not subject to prosecution under the federal bribery *486 statute.[2] Since our disposition of this claim turns on the relationship between petitioners and the Federal Government, we begin our discussion with an analysis of the HCDA block grant program and petitioners' role in administering that program. Congress passed the HCDA to meet the social, economic, and environmental problems facing cities. 42 U.S. C. 5301(a) ( ed. and Supp. V). The primary objective of the Act is "the development of viable urban communities." 5301(c). While the HCDA addressed a national problem, Congress enacted the legislation as a federal block grant statute, under which the day-to-day administration of the federal program, including the actual expenditure of federal funds, is delegated to state and local authorities. The HCDA creates a "consistent system of Federal aid," 5301(d), by distributing funds committed by Congress through organizations outside the Federal Government, while *487 retaining federal control to assure compliance with statutory federal objectives and implementing regulations. Congress itself specified the 17 categories of community projects upon which HCDA grants can be spent. 5305. Within the federal constraints, grant recipients design programs addressing local needs. To obtain federal funds, local communities must submit to the Secretary a plan made in accordance with national urban growth policies, and supplement the plan with annual performance reports. 5304(a), (d). The Federal Government retains the right to audit the records of HCDA programs, 5304(e), and to recover improperly expended funds. 5311(b)(2). HCDA grantees give assurances to HUD that they, and their subgrantees, will abide by specific financial accountability, equal opportunity, fair labor, environmental, and other requirements. 5304, 5309, 53; 24 CFR 570.307 (1983). By administering HCDA funds, private nonprofit organizations subject themselves to numerous federal restrictions beyond those imposed directly by HUD. Like other recipients of federal grant funds, HUD grantees and subgrantees are subject to a uniform audit procedure, adopted by the Federal Government as "an integral element" of "full accountability by those entrusted with the responsibility for administering the programs."[3] UNI voluntarily assumed the status of an HCDA subgrantee when UNI and the city of Peoria signed five separate grant agreements in March and October 1979, pursuant to *488 which UNI hired petitioners. Under the first four of these agreements, the city promised to provide UNI with $492,500, and UNI committed itself to spend these funds on urban renewal projects and related administrative costs, such as salaries and fringe benefits for UNI employees. The agreements specifically allocated funds to petitioners' salaries: $16,000 of the city grants was for UNI's Executive Director and $15,500 was for a Rehabilitation Coordinator. In a fifth agreement, Peoria promised UNI another $669,200 to be used "solely for a program operated by UNI which provides loans and grants to the rehabilitation of residential housing units in the designated Metropolitan Reallocation Grant Area." One anomaly in the five Peoria-UNI contracts is that, beyond this reference to the "Metropolitan Reallocation Grant Area" and to "312 loans,"[4] none of these first contracts explicitly refers to the federal Act or to UNI's new status of subgrantee.[5] UNI's application to participate in the federally funded program, however, unequivocally shows UNI's awareness of the Federal Government's relationship to, and interest in, the grant agreements. UNI's proposal to Peoria stated: "[W]e wish to undertake a joint effort with the City of Peoria to achieve the common goals as set forth in the Housing and Community Development *489 Act to insure safe, sanitary and decent housing for all people." Record, Govt. Exh. 19. (Emphasis added.) Moreover, there is no suggestion in the record that petitioners and other UNI executives failed to understand that they were involved in a federal program. As described above, the task of distributing HCDA funds is governed in numerous respects by federal statutes and regulations. Knowledge of the existence and applicability of these federal requirements and guidelines is presumed as a matter of law.[6] As a matter of fact, the federal interest in protecting the integrity of its block grant funds undoubtedly was driven home to petitioners when, in early 1980, in the midst of the period covered by the Government's indictment, Arthur Andersen & Co. conducted an audit of UNI's records in accordance with HUD's Audit Guide and Standards for Community Development Block Grant Recipients. Petitioners' responsibilities included receiving applications for housing assistance and soliciting contractor bids for qualified rehabilitation proposals. According to UNI's organizational structure, petitioners were supposed to submit the bids on qualified proposals to UNI's Housing Committee for final approval, but, in fact, the Committee's review was a "mere formality."[7] As a practical matter, petitioners alone decided which property owners and contractors in the city of Peoria would be the beneficiaries of the federal funds made available to the city through the HCDA block grant program. III Petitioners contend now, as they have throughout this litigation, that, as executives of a private nonprofit corporation unaffiliated with the Federal Government, they were never *490 "public officials" as Congress defined that term. 18 U.S. C. 201(a). Under 201(a), the term "public official" includes "an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, in any official function, under or by authority of any such department, agency, or branch of Government." There being no basis for claiming that petitioners were officers or employees of the United States, the Government's sole contention is that petitioners acted "for or on behalf of" the United States "in an official function" under the authority of HUD. Petitioners argue that they cannot be considered to have acted "for or on behalf of the United States" because neither they nor their employer UNI ever entered into any agreement with the United States or any subdivision of the Federal Government. In advancing this position, petitioners rely primarily on two Second Circuit decisions holding that a New York City employee involved in the administration of the federal Model Cities Program was not a public official under 201. United ; United Petitioners and these Second Circuit decisions rest on the premise that an individual does not work "for or on behalf of the United States in any official function" without some formal bond with the United States, such as an agency relationship, an employment contract, or a direct contractual obligation. The Government, in response, argues that the term "public official" has a broader sweep, covering not only parties in privity with the United States, but also any private individuals responsible for administering federally funded and federally supervised programs. The Government defends the decision of the Seventh Circuit in the instant cases which held that the "substantial federal supervision over the cities and all sub-grantees responsible for local distribution of grant funds" made petitioners' public officials for purposes of 201. *491 683 F. 2d, at 197-198. The court reasoned that petitioners "were acting as federal agents in the sense of having discretion in administering the expenditure of federal funds." As is often the case in matters of statutory interpretation, the language of 201(a) does not decide the dispute. The words can be interpreted to support either petitioners' or the Government's reading. We must turn, therefore, to the legislative history of the federal bribery statute to determine whether these materials clarify which of the proposed readings is consistent with Congress' intent. If the legislative history fails to clarify the statutory language, our rule of lenity would compel us to construe the statute in favor of petitioners, as criminal defendants in these cases. See A Congress passed the current federal bribery provisions, including 201(a), in 1962, as part of an effort to reformulate and rationalize all federal criminal statutes dealing with the integrity of government. At the time of the 1962 revisions, general federal bribery statutes had been in existence for more than a century. From the start, Congress drafted its bribery statutes with broad jurisdictional language,[8] and *492 periodically amended the provisions to ensure that the scope of federal criminal liability kept pace with the growth and diversification of the Federal Government.[9] Prior to 1962, in recognition of Congress' apparent desire for the federal bribery statutes to have wide application, the federal judiciary interpreted the statutes and, indeed, the phrase "person acting for or on behalf of the United States" to have a broad jurisdictional reach.[] When drafting 201(a), Congress was aware of previous federal bribery statutes, as well as the judicial interpretation given those statutes. The phrase at issue here "person *493 acting for or on behalf of the United States" was taken directly from predecessor bribery statutes.[11] Moreover, the reenactment of this language was no happenstance. Earlier versions of the 1962 statute omitted the phrase, but Department of Justice testimony that "its removal would be undesirable" convinced Congress to retain the language.[12] Standing alone, Congress' purposeful retention of the "acting for or on behalf of the Government" phrase does not advance our inquiry into the scope and meaning of those words. When, however, we compare the phrase as enacted with the proposed definition of "public official" in earlier draft bills that were not enacted, we conclude that Congress could not have meant to restrict the definition, as petitioners argue, to those persons in an employment or agency relationship *494 with the Federal Government. Such persons were clearly covered by successive, rejected versions of the reform bill, which defined "public official" in pertinent part as "an officer, agent, or employee of the United States in the executive, legislative, or judicial branch of the Government, or of any agency."[13] If Congress intended courts to restrict their reading of the jurisdictional definition to persons in a formal employment or agency relationship with the Government, it would have had no reason to accede to the Department of Justice's urging to retain the "acting for or on behalf of" language. Moreover, we find the legislative history of 201(a) inconsistent with the view that the words "person acting for or on behalf of the United States" were added simply to bring within the jurisdiction of the federal bribery laws those individuals tied to the Federal Government by direct contractual obligations. Committee Reports from both Houses of Congress emphasized that the new bribery laws made "no significant changes of substance" and "would not restrict the broad scope of the present bribery statutes as construed by the courts." S. Rep. No. 2213, 87th Cong., 2d Sess., 4 ; H. R. Rep. No. 87th Cong., 1st Sess., 17 (1961). Federal courts interpreting the federal bribery laws prior to 1962 had generally avoided formal distinctions, such as the requirement of a direct contractual bond, that would artificially narrow the scope of federal criminal jurisdiction. See n. Of particular relevance to the instant case is the House Judiciary Committee's citation of the Second Circuit's decision in United as an example *495 of how the judiciary had in the past properly construed the federal bribery See H. R. Rep. No. The Levine decision involved the application of the 1909 bribery statute to a low-level official in a decentralized federal assistance program.[14] The defendant in Levine worked for a locally administered price stabilization program, the New York Metropolitan Milk Marketing Area,[15] and was responsible for receiving milk handlers' market surplus claims, and checking them for accuracy. Levine solicited a bribe from one of the handlers within his jurisdiction in return for his promise to prevent investigations of the claims. Although hired by a Market Administrator who, in turn, had been appointed by the Secretary of Agriculture, Levine himself was neither employed by the United States nor paid with federal funds. Nevertheless, Levine's duties were critical to the proper administration of the federally assisted New York Milk Marketing Area. Because claims for payment were not rechecked by anyone else, his duties resulted in expenditures from the Federal Treasury. After reviewing *496 these facts, the Second Circuit concluded that, notwithstanding the absence of a direct contractual bond between the defendant and the United States, Levine's responsible position made him a "public official" for purposes of the federal bribery By explicitly endorsing the Second Circuit's analysis in Levine, the House Judiciary Committee strongly intimated that the phrase "acting for or on behalf of the United States" covers something more than a direct contractual bond. Congress' longstanding commitment to a broadly drafted federal bribery statute, its expressed desire to continue that tradition with the 1962 revisions, its affirmative adoption of the language at issue in this case, and the House Report's endorsement of the Second Circuit's reasoning in Levine, combine to persuade us that Congress never intended 201 (a)'s open-ended definition of "public official" to be given the cramped reading proposed by petitioners. We agree with the Government that 201(a) has been accurately characterized as a "comprehensive statute applicable to all persons performing activities for or on behalf of the United States," whatever the form of delegation of authority.[16] To determine whether any particular individual falls within this category, the proper inquiry is not simply whether the person had signed a contract with the United States or agreed to serve as the Government's agent, but rather whether the person occupies a position of public trust with official federal responsibilities. Persons who hold such positions are public officials within the meaning of 201 and liable for prosecution under the federal bribery statute. B Given the structure of the HCDA program and petitioners' responsible positions as administrators of the subgrant, we *497 have little difficulty concluding that these persons served as public officials for purposes of 201(a). As executives of UNI, petitioners had operational responsibility for the administration of the HCDA grant program within the city of Peoria. In allocating the federal resources made available to the city through the HCDA grant program, petitioners were charged with abiding by federal guidelines, which dictated both where and how the federal funds could be distributed. By accepting the responsibility for distributing these federal fiscal resources, petitioners assumed the quintessentially official role of administering a social service program established by the United States Congress. Lest there be any doubt that Congress intended 201(a) to cover local officials like petitioners, one need only compare petitioners to the defendant in Levine, whose conviction the House Judiciary Committee explicitly endorsed. See Both Levine and petitioners worked in decentralized federal assistance programs. Both Levine and petitioners effectively determined who would be the beneficiary of federal dollars, and both solicited bribes to influence their official decisions. Levine held a position of public trust with official federal responsibilities: to collect and investigate the accuracy of data submitted by milk producers in support of their claims for federal subsidies. Petitioners held a position of public trust with official federal responsibilities: allocating federal resources, pursuant to complex statutory and regulatory guidelines, in the form of residential rehabilitation contracts. Indeed, in certain respects, petitioners performed duties that were more clearly "official" and more obviously undertaken "for or on behalf of the United States" than the responsibilities of the defendant in Levine. Where Levine was paid through a levy imposed on local businesses participating in the marketing order, petitioners' salaries were completely funded by the HCDA grant. Where Levine simply compiled data that were submitted to the Department of Agriculture for eventual disbursement, petitioners personally *498 bestowed the benefits of the HCDA program to residents of Peoria. IV A In concluding that employment by the United States or some other similarly formal contractual or agency bond is not a prerequisite to prosecution under the federal bribery statute, we are supported by the majority of recent decisions in the Federal District Courts and Courts of Appeals. In United the Ninth Circuit determined that an employee of the Federal Reserve Bank of San Francisco, which is a private banking institution, was a public official for purposes of 201(a) because the employee was responsible for carrying out tasks delegated by a federal agency and was subject to substantial federal supervision. The defendant received bribes and kickbacks from independent contractors to influence him in making capital purchase requisitions. In short, like petitioners, he was in a position of responsibility, acting for or on behalf of the Federal Government in administering expenditure of federal funds. Similarly, in United the Seventh Circuit ruled that two privately employed grain inspectors, licensed by the Department of Agriculture, were public officials because they had responsibility for implementing a warehouse licensing program established by Congress.[17] For analogous reasons, the *499 Federal District Court for the District of New Mexico found a state employee responsible for administering the Farmers Home Administration rural housing improvement grant program to be included within 201(a). United 5 F. Supp. 1112, Again, the defendant's official duties in processing grant applications directly influenced the expenditure of federal funds. See also United 659 F.2d ; (CA5), cert. denied, ; United affirmance order sub nom. United But see United ; United (CA2), ; United 520 F. Supp. 4 B By finding petitioners to be public officials within the meaning of 201(a), we do not mean to suggest that the mere presence of some federal assistance brings a local organization and its employees within the jurisdiction of the federal bribery statute or even that all employees of local organizations responsible for administering federal grant programs are public officials within the meaning of 201(a). To be a public official under 201(a), an individual must possess some degree of official responsibility for carrying out a federal program or policy. Our opinion today is, therefore, fully consistent with in which this Court ruled that a baggage porter, although employed by a federally controlled railroad, could not be said to have "acted for or on behalf of the United States" because the porter lacked any duties of an official character. Similarly, individuals who work for block grant recipients and business people who provide recipients with goods and services cannot be said to be public officials under 201(a) unless they assume some duties of an official nature. We recognize that the manner in which the HCDA block grant program combines local administration with federal funding initially creates some confusion as to whether local authorities administering HCDA grants should be considered public officials under the federal bribery statute.[18] However, when one examines the structure of the program and sees that the HCDA vests in local administrators like petitioners Hinton and Dixson the power to allocate federal fiscal resources for the purpose of achieving congressionally established goals, the confusion evaporates and it becomes clear that these local officials hold precisely the sort of positions of national public trust that Congress intended to cover with the "acting for or on behalf of" language in the bribery statute.[19] The Federal Government has a strong and legitimate *501 interest in prosecuting petitioners for their misuse of Government funds. As this Court has said in another, closely related context, grant funds to state and local governments "are as much in need of protection from [fraud] as any other federal money, and the statute does not make the extent of [grant moneys'] safeguard dependent upon the bookkeeping devices used for their distribution." United States ex rel. (holding that one who contracts with a local governmental unit to work on federally funded projects can "cheat the United States" through the state intermediary). Because we agree with the Seventh Circuit that petitioners were public officials under 201(a), the judgment of the Court of Appeals is affirmed. It is so ordered. |
Justice Burger | concurring | false | California v. Green | 1970-06-23T00:00:00 | null | https://www.courtlistener.com/opinion/108189/california-v-green/ | https://www.courtlistener.com/api/rest/v3/clusters/108189/ | 1,970 | 1969-123 | 1 | 6 | 1 | I join fully in MR. JUSTICE WHITE'S opinion for the Court. I add this comment only to emphasize the importance of allowing the States to experiment and innovate, especially in the area of criminal justice. If new standards and procedures are tried in one State their success or failure will be a guide to others and to the Congress.
Here, California, by statute, recently adopted a rule of evidence[1] that, as MR. JUSTICE WHITE observes, has long been advocated by leading commentators. Two other States, Kentucky[2] and Wisconsin,[3] have within the past year embraced similar doctrines by judicial decisions. None of these States has yet had sufficient experience with their innovations to determine whether or not the modification is sound, wise, and workable. The California Supreme Court, in striking down the California statute, seems to have done so in the mistaken belief that this Court, through the Confrontation Clause, has imposed rigid limits on the States in this area. As the Court's opinion indicates, that conclusion is erroneous. The California statute meets the tests of the Sixth and Fourteenth Amendments, and accordingly, the wisdom of the statute is properly left to the State of California; other jurisdictions will undoubtedly watch the experiment with interest. The circumstances of this case demonstrate again that neither the Constitution as originally drafted, nor any amendment, nor indeed any need, dictates that we must have absolute uniformity in the *172 criminal law in all the States. Federal authority was never intended to be a "ramrod" to compel conformity to nonconstitutional standards.
MR. | I join fully in MR. JUSTICE WHITE'S opinion for the Court. I add this comment only to emphasize the importance of allowing the States to experiment and innovate, especially in the area of criminal justice. If new standards and procedures are tried in one State their success or failure will be a guide to others and to the Congress. Here, California, by statute, recently adopted a rule of evidence[1] that, as MR. JUSTICE WHITE observes, has long been advocated by leading commentators. Two other States, Kentucky[2] and Wisconsin,[3] have within the past year embraced similar doctrines by judicial decisions. None of these States has yet had sufficient experience with their innovations to determine whether or not the modification is sound, wise, and workable. The California Supreme Court, in striking down the California statute, seems to have done so in the mistaken belief that this Court, through the Confrontation Clause, has imposed rigid limits on the States in this area. As the Court's opinion indicates, that conclusion is erroneous. The California statute meets the tests of the Sixth and Fourteenth Amendments, and accordingly, the wisdom of the statute is properly left to the State of California; other jurisdictions will undoubtedly watch the experiment with interest. The circumstances of this case demonstrate again that neither the Constitution as originally drafted, nor any amendment, nor indeed any need, dictates that we must have absolute uniformity in the *172 criminal law in all the States. Federal authority was never intended to be a "ramrod" to compel conformity to nonconstitutional standards. MR. |
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