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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Chief Justice Burger delivered the opinion of the Court. We granted certiorari to determine whether lists of addresses collected and utilized by the Bureau of the Census are exempt from disclosure, either by way of civil discovery or the Freedom of Information Act, under, the confidentiality provisions of the Census Act, 13 U. S. C. §§8 and 9. HH Under Art. I, § 2, cl. 3, of the United States Constitution, responsibility for conducting the decennial census rests with Congress. Congress has delegated to the Secretary of Commerce the duty to conduct the decennial census, 13 U. S. C. § 141; the Secretary in turn has delegated this function to the Bureau of the Census. 13 U. S. C. § 21. The 1980 enumeration conducted by the Bureau of the Census indicated that Essex County, N. J., which includes the city of Newark, and Denver, Colo., among other areas, had lost population during the 1970’s. This information was conveyed to the appropriate officials in both Essex County and Denver. Under Bureau procedures a city has 10 working days from receipt of the preliminary counts to challenge the accuracy of the census data. Both Essex County and Denver challenged the census count under the local review procedures. Both proceeded on the theory that the Bureau had erroneously classified occupied dwellings as vacant, and both sought to compel disclosure of a portion of the address lists used by the Bureau in conducting its count in their respective jurisdictions. A BALDRIGE v. SHAPIRO (No. 80-1436) The Essex County Executive filed suit in the United States District Court for the District of New Jersey to compel the Bureau to release the “master address” register under the Freedom of Information Act (FOIA), 5 U. S. C. § 552. The master address register is a listing of such information as addresses, householders’ names, number of housing units, type of census inquiry, and, where applicable, the vacancy status of the unit. The list was compiled initially from commercial mailing address lists and census postal checks, and was updated further through direct responses to census questionnaires, pre- and post-enumeration canvassing by census personnel, and in some instances by a cross-check with the 1970 census data. The Bureau resisted disclosure of the master address list, arguing that 13 U. S. C. §§ 8(b) and 9(a) prohibit disclosure of all raw census data pertaining to particular individuals, including addresses. The Bureau argued that it therefore could lawfully withhold the information under the FOIA pursuant to Exemption 3, which provides that the FOIA does not apply where information is specifically exempt from disclosure by statute. 5 U. S. C. § 552(b)(3). The District Court concluded that the FOIA required disclosure of the requested information. The court began its analysis by noting that public policy favors disclosure under the FOIA unless the information falls within the statutory exemptions. The District Court concluded that the Census Act did not provide a “blanket of confidentiality” for all census materials. Rather, the confidentiality limitation is “solely to require that census material be used in furtherance of the Bureau’s statistical mission and to ensure against disclosure of any particular individual’s response.” App. to Pet. for Cert. 10a. The court noted that Essex County did not seek access to individual census reports or information relative to particular individuals, but sought access to the address list exclusively for statistical purposes in conjunction with the Bureau’s own program of local review. In addition, the Secretary is authorized by the Census Act to utilize county employees if they are sworn to observe the limitations of the statute. The District Court concluded that the Bureau’s claim of confidentiality impeded the goal of accurate and complete enumeration. Finally, the District Court found that the information sought was not derived from the questionnaires received, but rather from data available prior to the census. The District Court ordered the Bureau to make available the address register of all property in the county, with the proviso that all persons using the records be sworn to secrecy. The United States Court of Appeals for the Third Circuit affirmed for the reasons stated by the District Court. App. to Pet. for Cert. la. Judgment order reported at 636 F. 2d 1210 (1980). B McNICHOLS v. BALDRIGE (No. 80-1781) The city of Denver, through its officials, filed suit in the United States District Court for the District of Colorado seeking a preliminary injunction to require the Bureau to cooperate with the city in verifying its vacancy data. The District Court did not rule on the preliminary injunction, but instead focused on whether the city of Denver was entitled to the vacancy information contained in the updated master address registers maintained by the Bureau. The District Court granted the city of Denver’s discovery request for this information. The court concluded that the city should have access to the information because without the address list the city was denied any meaningful ability to challenge the Bureau’s data. In light of what it deemed the important constitutional and statutory rights involved, the District Court concluded that the purposes of § 9 of the Census Act could be maintained without denying the city the right of discovery. The District Court entered a detailed order to protect the confidentiality of the information. The United States Court of Appeals for the Tenth Circuit reversed. 644 F. 2d 844 (1981). The Court of Appeals relied on the “express language” of the statute and on the “'emphatically expressed intent of Congress to protect census information.’ ” Id., at 845, quoting Seymour v. Barabba, 182 U. S. App. D. C. 185, 188, 559 F. 2d 806, 809 (1977). The court reasoned that Congress has the power to make census information immune from direct discovery or disclosure. The court concluded that Congress has neither made nor implied an exception covering this case. The Court of Appeals also found no indication that Congress is constitutionally required to provide the city with information to challenge the census data. The court concluded that the city of Denver’s remedy must lie with Congress. Thus, the United States Court of Appeals for the Third Circuit ordered disclosure of the master address list under the FOIA. App. to Pet. for Cert. la. The United States Court of Appeals for the Tenth Circuit denied discovery of similar information, concluding that the data was privileged from disclosure. 644 F. 2d 844 (1981). We granted certio-rari in these cases to determine whether such information is to be disclosed under either of the requested procedures. 451 U. S. 936 (1981); 452 U. S. 937 (1981). B < The broad mandate of the FOIA is to provide for open disclosure of public information. The Act expressly recognizes, however, that public disclosure is not always in the public interest and consequently provides that agency records may be withheld from disclosure under any one of the nine exemptions defined in 5 U. S. C. § 552(b). Under Exemption 3 disclosure need not be made as to information “specifically exempted from disclosure by statute” if the statute affords the agency no discretion on disclosure, or establishes particular criteria for withholding the data, or refers to the particular types of material to be withheld. The question in Baldrige v. Shapiro, No. 80-1436, is twofold: first, do §§ 8(b) and 9(a) of the Census Act constitute a statutory exception to disclosure within the meaning of Exemption 3; and second, is the requested data included within the protection of §§ 8(b) and 9(a). B Although the national census mandated by Art. I, § 2, of the Constitution fulfills many important and valuable functions for the benefit of the country as a whole, its initial constitutional purpose was to provide a basis for apportioning representatives among the states in the Congress. The census today serves an important function in the allocation of federal grants to states based on population. In addition, the census also provides important data for Congress and ultimately for the private sector. Although Congress has broad power to require individuals to submit responses, an accurate census depends in large part on public cooperation. To stimulate that cooperation Congress has provided assurances that information furnished to the Secretary by individuals is to be treated as confidential. 13 U. S. C. §§ 8(b), 9(a). Section 8(b) of the Census Act provides that subject to specified limitations, “the Secretary [of Commerce] may furnish copies of tabulations and other statistical materials which do not disclose the information reported by, or on behalf of, any particular respondent . . . .” Section 9(a) provides farther assurances of confidentiality: “Neither the Secretary, nor any other officer or employee of the Department of Commerce or bureau or agency thereof, may, except as provided in section 8 of this title— “(1) use the information furnished under the provisions of this title for any purpose other than the statistical purposes for which it is supplied; or “(2) make any publication whereby the data furnished by any particular establishment or individual under this title can be identified; or “(3) permit anyone other than the sworn officers and employees of the Department or bureau or agency thereof to examine the individual reports.” Sections 8(b) and 9(a) explicitly provide for the nondisclosure of certain census data. No discretion is provided to the Census Bureau on whether or not to disclose the information referred to in §§ 8(b) and 9(a). Sections 8(b) and 9(a) of the Census Act therefore qualify as withholding statutes under Exemption 3. Raw census data is protected under the §§ 8(b) and 9(a) exemptions, however, only to the extent that the data is within the confidentiality provisions of the Act. C Essex County and various amici vigorously argue that § § 8(b) and 9(a) of the Census Act are designed to prohibit disclosure of the identities of individuals who provide raw census data; for this reason, they argue, the confidentiality provisions protect raw data only if the individual respondent can be identified. The unambiguous language of the confidentiality provisions, as well as the legislative history of the Act, however, indicates that Congress plainly contemplated that raw data reported by or on behalf of individuals was to be held confidential and not available for disclosure. We begin first with the language of §§ 8(b) and 9(a). Watt v. Energy Action Educational Foundation, 454 U. S. 151 (1981). Section 8(b) allows the Secretary to provide statistical materials “which do not disclose the information reported by, or on behalf of, any particular respondent. . . .” (Emphasis added.) The focus of § 9(a) is also on the information that constitutes the statistical compilation. The Secretary is prohibited from using the “information” except for statistical purposes and is prohibited from publication “whereby the data furnished by any particular establishment or individual under this title can be identified . . . .” (Emphasis added.) The language of each section refers to protection of the “information” or “data” compiled. In addition, the provisions of § 8(b) prohibit disclosure of data provided “by, or on behalf of,” any respondent. By protecting data revealed “on behalf of” a respondent, Congress further emphasized that the data itself was to be protected from disclosure. The legislative history also makes clear that Congress was concerned not solely with protecting the identity of individuals. Since 1879 Congress has expressed its concern that confidentiality of data reported by individuals also be preserved. At that time each census taker was required by law to take an oath “not [to] disclose any information contained in the schedules, lists, or statements.” Act of Mar. 3, 1879, ch. 195, §7, 20 Stat. 475, and Act of Apr. 20, 1880, ch. 57, 21 Stat. 75. As a result of the detailed questions asked in the 1880 and 1890 censuses, Congress amended the Census Act to broaden the confidentiality protections. Act of Mar. 3, 1899, ch. 419, §21, 30 Stat. 1020. The law restricted disclosure unless the Director of the Census authorized that the information be revealed. The governor of any state or the chief officer of any municipal government upon request, however, could receive a list of individuals counted within the territory of the jurisdiction. § 30, 30 Stat. 1021. The Director of the Census frequently was asked to disclose information to cities complaining of undercounts. For example, data was revealed to New York City after the 1890 census in order to allow the city to challenge the accuracy of the federal count. House Committee on the Eleventh Census, Reenu-meration of New York City, 51st Cong., 2d Sess. (1890). See also Decennial Census, at 113-138. In 1929 Congress again amended the Census Act and provided the confidentiality provisions of § 9. Act of June 18, 1929, ch. 28, § 11, 46 Stat. 25. The amendment gave the Director of the Census no discretion to release data, regardless of the claimed beneficial effect of disclosure. The confidentiality provisions extended to all information collected by the Bureau of the Census. Decennial Census, at 116. No special access was granted to states or municipalities. In 1976 the confidentiality provision of § 8 was strengthened “to add further protection of privacy” by prohibiting disclosure of information “reported by, or on behalf of, any respondent.” S. Rep. No. 94-1256, pp. £4 (1976). See also H. R. Conf. Rep. No. 94-1719, p. 10 (1976). The prohibitions of disclosure of “material which might disclose information reported by, or on behalf of, any respondent” extend both to “public and private entities,” S. Rep. No. 94-1256, supra, at 4, further indicating that the municipalities requesting disclosure of raw census data have no special claim to the information. The foregoing history of the Census Act reveals a congressional intent to protect the confidentiality of census information by prohibiting disclosure of raw census data reported by or on behalf of individuals. Subsequent congressional action is consistent with this interpretation. In response to claimed undercounts in the census of 1960 and of 1970, Congress considered, but ultimately rejected, proposals to allow local officials limited access to census data in order to challenge the census count. See H. R. 8871, 95 Cong., 1st Sess. (1977); Hearings on H. R. 8871 before the Subcommittee on Census and Population of the House Committee on Post Office and Civil Service, 95th Cong., 1st Sess. (1977). A list of vacant addresses is part of the raw census data— the information — intended by Congress to be protected. The list of addresses requested by the County of Essex constitutes “information reported by, or on behalf of,” individuals responding to the census. The initial list of addresses is taken from prior censuses and mailing lists. This information then is verified both by direct mailings and census enumerators who go to areas not responding. See, e. g., 1980 Census Questionnaire, Question No. H4 (“How many living quarters, occupied and vacant, are at this address?”). As with all the census material, the information on vacancies was updated from data obtained from neighbors and others who spoke with the followup census enumerators. The final master address list therefore includes data reported by or on behalf of individuals. Under the clear language of the Census Act it is not relevant that the municipalities seeking the data will use it only for statistical purposes. Section 9(a)(1) permits use of the data only for “the statistical purposes for which it is supplied.” There is no indication in the Census Act that the hundreds of municipal governments in the 50 states were intended by Congress to be the “monitors” of the Census Bureau. In addition, limiting use of data only for “statistical” purposes in no way indicates that raw data may be revealed outside the strict requirements of the Census Act that data be handled by census employees sworn to secrecy. Because §§ 8(b) and 9(a) of the Census Act constitute withholding statutes under Exemption 3 of the FOIA and because the raw census data in this case was intended to be protected from disclosure within those provisions of the Census Act, the requested information is not subject to disclosure under the FOIA. HH HH H-H The discovery provisions of the Federal Rules of Civil Procedure, similar to the FOIA, are designed to encourage open exchange of information by litigants in federal courts. Unlike the FOIA, however, the discovery provisions under the Federal Rules focus upon the need for the information rather than a broad statutory grant of disclosure. Federal Rule of Civil Procedure 26(b)(1) provides for access to all information “relevant to the subject matter involved in the pending action” unless the information is privileged. If a privilege exists, information may be withheld, even if relevant to the lawsuit and essential to the establishment of plaintiffs claim. It is well recognized that a privilege may be created by statute. A statute granting a privilege is to be strictly construed so as “to avoid a construction that would suppress otherwise competent evidence.” St. Regis Paper Co. v. United States, 368 U. S. 208, 218 (1961). In the case of the city of Denver, the central inquiry is whether §§ 8(b) and 9(a) create a privilege so as to protect against disclosure of the raw census data requested. As noted above, § 8(b) and § 9(a) of the Census Act embody explicit congressional intent to preclude all disclosure of raw census data reported by or on behalf of individuals. This strong policy of nondisclosure indicates that Congress intended the confidentiality provisions to constitute a “privilege” within the meaning of the Federal Rules. Disclosure by way of civil discovery would undermine the very purpose of confidentiality contemplated by Congress. One such purpose was to encourage public participation and maintain public confidence that information given to the Census Bureau would not be disclosed. The general public, whose cooperation is essential for an accurate census, would not be concerned with the underlying rationale for disclosure of data that had been accumulated under assurances of confidentiality. Congress concluded in §§ 8(b) and 9(a) that only a bar on disclosure of all raw data reported by or on behalf of individuals would serve the function of assuring public confidence. This was within congressional discretion, for Congress is vested by the Constitution with authority to conduct the census “as they shall by Law direct.” The wisdom of its classifications is not for us to decide in light of Congress’ 180 years’ experience with the census process. This is not to say that the city of Denver does not also have important reasons for requesting the raw census data for purposes of its civil suit. A finding of “privilege,” however, shields the requested information from disclosure despite the need demonstrated by the litigant. IV We hold that whether sought by way of requests under the FOIA or by way of discovery rules, raw data reported by or on behalf of individuals need not be disclosed. Congress, of course, can authorize disclosure in executing its constitutional obligation to conduct a decennial census. But until Congress alters its clear provisions under §§ 8(b) and 9(a) of the Census Act, its mandate is to be followed by the courts. Accordingly the judgment of the United States Court of Appeals for the Third Circuit in No. 80-1436 is reversed, and the judgment of the United States Court of Appeals for the Tenth Circuit in No. 80-1781 is affirmed. It is so ordered. Article I, § 2, cl. 3, provides: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. . . .” Article I, § 2, cl. 3, was amended by § 2 of the Fourteenth Amendment to provide: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” The Sixteenth Amendment also altered cl. 3 to provide for direct taxation without apportionment among the states and without regard to any census or enumeration. See Revised Local Review Program Information Booklet (Apr. 1980), App. in No. 80-1436, pp. 22-48. Under 5 U. S. C. § 552(a)(4)(B), “the district court of the United States in the district in which the complainant resides . . . has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” We note in passing that there is no provision in the FOIA for this procedure. Jurisdiction in the District Court for the District of Colorado was invoked under 28 U. S. C. §§ 1331, 1337, 1361, 2201, and 2202, under the Freedom of Information Act, 5 U. S. C. § 552, under 5 U. S. C. §§ 702, 704, and 706, and under U. S. Const., Art. I, §2, cl. 3. The city argued that as a result of the erroneous undercount, Denver would be underrepresented in Congress and would be deprived of certain federal funds to which it otherwise would be entitled under the federal grant-in-aid programs that distribute funds on the basis of population. The city also argued that it would be underrepresented in the state legislature because under the Colorado Constitution apportionment of state legislative districts is based on the federal census. Colo. Const., Art. V, §48. The city of Denver originally sought a temporary restraining order to require the Bureau to keep open its Denver offices. The parties agreed that the offices could close so long as the Bureau kept its updated master address lists in Denver. The District Court ordered that (1) the Government must produce the updated master address registers, described as “Follow-up Address Registers” (FAR’s), or a list of vacant addresses culled from the FAR’s; (2) all names and other identifying references must be eliminated; (3) all city employees with access to the information must take an oath of secrecy; (4) the information must be used only for adjustment of the census; and (5) Bureau officials may at their option accompany city employees as they verify the information. This principle has been reiterated frequently by this Court. See, e.g., Weinberger v. Catholic Action of Hawaii/Peace Education Project, 454 U. S. 139 (1981); NLRB v. Robbins Tire & Rubber Co., 437 U. S. 214, 220 (1978); EPA v. Mink, 410 U. S. 73, 80 (1973). As originally enacted the decennial census was to serve both for apportioning representatives and apportioning direct taxes among the states. The ratification of the Sixteenth Amendment in 1913 amended Art. I, § 2, to provide for direct taxation without apportionment. Even the first census takers, who had a relatively small population to deal with, encountered difficulty in taking a national census. 31 The Writings of George Washington 329 (J. Fitzpatrick ed. 1939) (“Returns of the Census have already been made from several of the States and a tolerably just estimate has been formed now in others, by which it appears that we shall hardly reach four millions; but one thing is certain our real numbers will exceed, greatly, the official returns of them; because the religious scruples of some, would not allow them to give in their lists; the fears of others that it was intended as the foundation of a tax induced them to conceal or diminished theirs, and thro’ the indolence of the people, and the negligence of many of the Officers numbers are omitted”); 8 The Writings of Thomas Jefferson 229 (A. Lipscomb ed. 1903) (Aug. 24,1791, letter to Wm. Carmi-cl je!) (“I enclose you a copy of our census .... Making very small allowance for omissions, which we know to have been very great, we may safely say we are above four millions”). The information obtained from the national census is used for such varied purposes as computing federal grant-in-aid benefits, drafting of legislation, urban and regional planning, business planning, and academic and so-eial studies. See Subcommittee on Census and Population of the House Committee on Post Office and Civil Service, The Use of Population Data in Federal Assistance Programs, Ser. No. 95-16 (Committee Print compiled by the Library of Congress 1978); S. Rep. No. 94-1256, p. 1 (1976). During congressional debates James Madison emphasized the importance of census information beyond the constitutionally designated purposes and encouraged the new Congress to “embrace some other subjects besides the bare enumeration of the inhabitants.” “This kind of information, [Madison] observed, all legislatures had wished for; but this kind of information had never been obtained in any country. ... If the plan was pursued in taking every future census, it would give them an opportunity of marking the progress of the society, and distinguishing the growth of every interest.” 13 The Papers of James Madison 8-9 (C. Hobson & R. Rutland eds. 1981) (Debate of Jan. 25,1790). A bill for obtaining information as described by Mr. Madison passed the House of Representatives but “was thrown out by the Senate as a waste of trouble and supplying materials for idle people to make a book.” Letter to Thomas Jefferson, id., at 41. Respondent Shapiro does not dispute this conclusion. See Brief for Respondent in No. 80-1436, p. 8. The legislative history of the FOIA clearly indicates that Congress recognized that the Census Act constituted a specific exemption under Exemption 3. See, e. g., S. Rep. No. 1621, 85th Cong., 2d Sess., 9 (1958); 104 Cong. Rec. 6549-6550 (1958) (remarks of Rep. Moss); 112 Cong. Rec. 13646 (1966) (remarks of Rep. Olsen) (“information ... or sources of information” given to the Bureau of the Census will be held confidential under Exemption 3); H. R. Rep. No. 1497, 89th Cong., 2d Sess. (1966); 122 Cong. Rec. 24211 (1976) (remarks of Reps. Abzug and McCloskey). Concern for confidentiality in census taking was expressed as early as the 1840 census in which each census enumerator was instructed to “consider all communications made to him in the performance of [his] duty, relative to the business of the people, as strictly confidential.” Subcommittee on Energy, Nuclear Proliferation and Federal Services of the Senate Committee on Governmental Affairs, The Decennial Census: An Analysis and Review, 96th Cong., 2d Sess., 113 (Committee Print compiled by the Library of Congress 1980) (hereinafter Decennial Census). See also A. Scott, Census, U. S. A. 29 (1968). The 1870 census instructions emphatically stated that “[a]ll disclosures should be treated as strictly confidential, with the exception hereafter to be noted in the case of the mortality schedule. . . .” Decennial Census, at 114. The 1909 revisions of the Census Act stated that “[n]o publication shall be made by the Census Office whereby the data furnished by any particular establishment can be identified . . . .” Act of July 2, 1909, ch. 2, § 25, 36 Stat. 9 (emphasis added). See also Act of Apr. 2, 1924, ch. 80, § 3, 43 Stat. 31; Act of June 18,1929, ch. 28, § 8, 46 Stat. 23; Act of July 25, 1947, ch. 331, 61 Stat. 458; Act of Aug. 31,1954, Pub. L. 740, 68 Stat. 1013-1014; Act of Oct! 15,1962, Pub. L. 87-813, 76 Stat. 922 (overriding decision in St. Regis Paper Co. v. United States, 368 U. S. 208 (1961), by prohibiting disclosure of copy of census report retained by business establishment). For a more detailed history of the provisions of confidentiality see C. Kaplan & T. Van Valey, Census ’80: Continuing the Factfinder Tradition 68-71 (U. S. Dept, of Commerce, 1980). Recognition of the need for some degree of confidentiality of cénsus materials is indicated in the confidentiality provisions of several foreign nations. Canada, France, Germany, Great Britain, Italy, Japan, The Netherlands, and Sweden make some provision for the confidentiality of census materials. See Senate Committee on Post Office and Civil Service, Laws on the Confidentiality of Census Records in Western Europe, Canada, and Japan, 94th Cong., 2d Sess. (Committee Print compiled by the Library of Congress 1976). Congress may well have concluded that the controversy over the “vacant” or “occupied” status of property months after the census was taken could lead to interminable litigation and impair the constitutional and statutory purposes of the census. Approximately 50 lawsuits have been brought by local governments claiming an undercount from the 1980 census. See, e. g., In re 1980 Decennial Census Adjustment Litigation, 506 F. Supp. 648 (J. P. M. D. L. 1981); Carey v. Klutznick, 653 F. 2d 732 (CA2), cert. pending sub nom. Carey v. Baldrige, No. 81-752. Although § 9(a)(1) allows use of census data for “statistical” purposes, it remains subject to § 8(b), which prohibits public disclosure of information reported by or on behalf of individuals. The primary purpose of the FOIA was not to benefit private litigants or to serve as a substitute for civil discovery. See NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 143, n. 10 (1975); Renegotiation Bd. v. Bannercraft Clothing Co., 415 U. S. 1, 24 (1974). Most courts have concluded that an FOIA exemption does not automatically constitute a “privilege” within the meaning of the Federal Rules of Civil Procedure. See, e. g., Frankel v. SEC, 460 F. 2d 813, 818 (CA2 1972) (information exempt under FOIA may be obtained through discovery if party’s need for information exceeds Government’s need for confidentiality). See Toran, Information Disclosure in Civil Actions: The Freedom of Information Act and the Federal Discovery Rules, 49 Geo. Wash. L. Rev. 843, 848-854 (1981). Federal Rule of Evidence 501 provides that “[ejxcept as otherwise required by the Constitution of the United States or provided by Act of Congress ... the privilege of a witness . . . [or] government. . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” (Emphasis added.) It is not unlikely that while cheeking the Bureau vacancy figures the city of Denver would speak to individuals who had supplied vacancy data to the Bureau. Even though the city might not be able to identify the individuals who originally gave the information, there would nonetheless be the appearance that confidentiality had been breached. Congress has several times rejected proposals designed to assure availability of census records to historians and other legitimate researchers. See, e. g., S. 3279, H. R. 10686, 94th Cong., 2d Sess. (1976). “Concerns about the legislation raised by the Bureau of the Census and others soon made it apparent that benefits gained from the release of census records could be easily offset by a loss of credibility for the census, as well as damage to the reputations of individual citizens.” Senate Committee on Post Office and Civil Service, Laws on the Confidentiality of Census Records in Western Europe, Canada, and Japan, 94th Cong., 2d Sess. (Committee Print compiled by the Library of Congress 1976) (Foreword by Sen. McGee, Chairperson). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

E

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Blackmun delivered the opinion of the Court. This appeal, heard as a companion to D. H. Overmyer Co. v. Frick Co., ante, p. 174, decided today, also purports to raise for the Court the issue of the due process validity of cognovit provisions. The system under challenge in this case is that of Pennsylvania. The three-judge District Court, with one judge dissenting in part because, in his view, the court did not go far enough, refrained from declaring the Commonwealth’s rules and statutes unconstitutional on their face and granted declaratory and injunctive relief only for a limited class of cognovit signers. 314 F. Supp. 1091 (ED Pa. 1970). The plaintiffs, but not the defendants, appealed. We noted probable jurisdiction the same day certiorari was granted in Overmyer. 401 U. S. 991. I The cognovit system is firmly entrenched in Pennsylvania and has long been in effect there. A confession of judgment for money “may be entered by the prothonotary . . . without the agency of an attorney and without the fifing of a complaint, declaration or confession, for the amount which may appear to be due from the face of the instrument,” Pa. Rule Civ. Proc. 2951 (a), except that the action must be instituted by a complaint if the instrument is more than 10 years old or cannot be produced for filing, “or if it requires the occurrence of a default or condition precedent before judgment may be entered.” Rules 2951 (c) and (d). In an action instituted by a complaint, the plaintiff shall file a confession of judgment substantially in a prescribed form, and the attorney for the plaintiff “may sign the confession as attorney for the defendant” unless a statute or the instrument provides otherwise. Rule 2955. The prothonotary enters judgment “in conformity with the confession.” Rule 2956. The amount due, interest, attorneys' fees, and costs may be included by the plaintiff in the praecipe for a writ of execution. Rule 2957. Within 20 days after the entry of judgment the plaintiff shall mail the defendant written notice. Failure to do this, however, does not affect the judgment lien. Rule 2958 (a). Within the same 20 days the plaintiff may issue a writ of execution and may do so even if the notice is not yet mailed. Rule 2958 (b). If an affidavit of mailing is not filed within the 20-day period, the writ of execution may not issue until 20 days after the affidavit of mailing has been filed. Rule 2958 (c). Relief from a judgment by confession may be sought by a petition asserting “[a] 11 grounds for relief whether to strike off the judgment or to open it . . . .” Rule 2959 (a). If the petition states prima facie grounds for relief, the court issues a rule to show cause and may grant a stay. A defendant “waives all defenses and objections” not included in the petition. The court “shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidence.” Rules 2959 (b), (c), and (e). If the judgment is opened in whole or in part, the issues are then tried. Rule 2960. The procedure for confession of judgment for possession of real property is essentially the same except that the action shall be commenced by filing a complaint. Rules 2970-2973. The prothonotary specifically is given power to “enter judgments at the instance of plaintiffs, upon the confessions of defendants.” Pa. Stat. Ann., Tit. 17, § 1482. The prothonotary is the clerk of the court of common pleas. He has no judicial function. It has been said that his power is derived from the instrument under which he acts and not from his office, Smith v. Safeguard Mut. Ins. Co., 212 Pa. Super. 83, 87, 239 A. 2d 824, 826 (1968), and that his entry of judgment is a ministerial act, Lenson v. Sandler, 430 Pa. 193, 197, 241 A. 2d 66, 68 (1968). It has also been said that the confession of judgment procedure in Pennsylvania exists “independent of statute.” Equipment Corp. of America v. Primos Vanadium Co., 285 Pa. 432, 437, 132 A. 360, 362 (1926); Cook v. Gilbert, 8 Serg. & R. 567, 568 (1822); Hatch v. Stitt, 66 Pa. 264 (1870). It is apparent, therefore, that in Pennsylvania confession-of-judgment provisions are given full procedural effect; that the plaintiff’s attorney himself may effectuate the entire procedure; that the prothonotary, a nonjudicial officer, is the official utilized; that notice issues after the judgment is entered; and that execution upon the confessed judgment may be taken forthwith. The defendant may seek relief by way of a petition to strike the judgment or to open it, but he must assert prima facie grounds for this relief, and he achieves a trial only if he persuades the court to open. Meanwhile, the judgment and its lien remain. The pervasive and drastic character of the Pennsylvania system has been noted. Cutler Corp. v. Latshaw, 374 Pa. 1, 4-5, 97 A. 2d 234, 236 (1953). See Kine v. Forman, 404 Pa. 301, 172 A. 2d 164 (1961), and Atlas Credit Corp. v. Ezrine, 25 N. Y. 2d 219, 250 N. E. 2d 474 (1969). II Seven individuals are the named plaintiffs in the original complaint filed in December 1969. Jurisdiction is based on the civil rights statutes, 28 U. S. C. § 1343 and 42 U. S. C. § 1983. The plaintiffs purport to act on behalf of a class consisting of all Pennsylvania residents who have signed documents containing cognovit provisions leading, or that could lead, to a confessed judgment in Philadelphia County. The defendants are the county’s prothonotary and sheriff, the officials responsible, respectively, for the recording of confessed judgments and for executing upon them. The complaint alleges that each plaintiff has signed one or another type of consumer financing agreement pursuant to which his creditor has entered judgment; that each faces immediate judicial sale of his home or personal belongings; that the Pennsylvania rules and statutes are unconstitutional on their face because they deprive members of the class of procedural due process in the denial of notice and hearing before judgment; that the signing of the cognovit contract was not an intelligent and voluntary waiver of the right to notice and hearing; that the only recourse against the recorded judgment is an action to strike or reopen; and that such recourse is costly and burdensome to low income consumers, and denies them equal protection. The relief sought is a declaration that the Pennsylvania rules and statutes are unconstitutional, and an injunction against the defendants’ “operating under the above acts and rules.” A three-judge court was requested. The single District Judge entered a temporary restraining order staying execution of judgments against the seven plaintiffs. He also provided a procedure for adding additional plaintiffs. The three-judge court continued and expanded the restraining order to stay all executions upon confessed judgments in the Commonwealth. A number of additional plaintiffs were added, and one original plaintiff was dismissed from the case. A group of finance companies was permitted to intervene. Stipulations were made. One was between counsel for the plaintiffs and the city solicitor; another was between counsel for the plaintiffs and for the intervenor finance companies. These stipulations are not identical but they do overlap. They established the following: 1. Judgments by confession against the various plaintiffs had been entered ranging in amounts from $249.23 to $25,800. 2. If called as witnesses, the original plaintiffs would testify to the facts alleged in the complaint. Each would also testify as to his unawareness of the cognovit clause, his lack of understanding of its significance if he had read it, and his inability to bargain about it anyway. 3. If called, some of the plaintiffs would testify that they were encouraged not to read their contracts; that the judgments exceeded the debts because of the addition of penalties, costs, and fees; that they could not afford proceedings to strike or reopen; and that they believed they had meritorious defenses. 4. The imposition and amount of sheriff’s costs, bar association fee schedules, and necessary deposition and transcript costs in the cognovit procedure were acknowledged. The three-judge court held a hearing. In addition to the appearance of counsel for the plaintiffs and for the intervenors, an assistant city solicitor of Philadelphia appeared for the named defendants, and a Deputy Attorney General appeared for the Commonwealth. The only plaintiff to testify was one of those added after the complaint had been filed. She was a postal clerk who earned $6,100 annually and who had agreed with a door-to-door salesman to buy a carpet for $1,300. Her contract contained a cognovit clause pursuant to which a finance company had obtained a confessed judgment. A detective and a finance company officer were presented by the plaintiffs. They testified to the pervasiveness of cognovit clauses and the “disbelief and shock” of those who had signed them. The plaintiffs also introduced in evidence by stipulation a published report by David Caplovitz, Ph. D., Consumers in Trouble. This was a 1968 study of confessed-judgment debtors in four major Pennsylvania cities. It included 245 Philadelphia debtors. The study purported to show that 96%' had annual incomes of less than $10,000, and 56% less than $6,000; that only 30%' had graduated from high school; and that only 14% knew the contracts they signed contained cognovit clauses. The only other witness at the hearing was one called by the intervenors. He was a finance company officer and testified as to the usual practice of making loans. The three-judge District Court held: 1. The Pennsylvania-system leading to confessed judgment and execution does comply with due process standards provided “there has been an understanding and voluntary consent of the debtor in signing the document.” 314 F. Supp., at 1095. 2. If, however, there is no such understanding consent, the procedure violates due process requirements of notice and an opportunity to be heard. Ibid. 3. The plaintiffs did not sustain their burden of proof with respect to the lack of valid consent in the execution of bonds and warrants of attorney accompanying mortgages. Id., at 1098. 4. The record did not establish that the action could be maintained as a class action on behalf of individual natural persons with annual incomes of more than $10,000. Id., at 1098-1099. 5. It could be maintained, however, as a class action on behalf of natural persons residing in Pennsylvania who earn less than $10,000 annually and who signed consumer financing or lease contracts containing cognovit provisions. Id., at 1099. 6. There was no intentional waiver of known rights by members of that class in executing confession-of-judgment clauses. These were the right to have prejudgment notice and hearing, the right to have the burden of proof on the creditor, and the right to avoid the expenses attendant upon opening or striking a confessed judgment. Since the Pennsylvania procedure with respect to the designated class was based upon a waiver concept without adequate understanding, it was violative of due process. Id., at 1100. 7. It was not the federal court’s function to dictate to Pennsylvania “exactly what constitutes understanding waiver.” Ibid. Where the debtor is an attorney, an affidavit to that effect may be all that is necessary to prove understanding, but where the debtor is not a high school graduate more proof “may be required.” Id., at 1101. A “statewide rule or legislation providing for the filing of proof of intentional, understanding and voluntary consent,” in order to comply with the court’s opinion, was among the methods available to the State to permit continued use of the confession-of-judgment clause. Id., at 1100-1101, n. 24. 8. No judgment by confession may be entered as to a member of the recognized class after November 1, 1970, unless it is shown that at the time of executing the document the debtor “intentionally, understandingly, and voluntarily waived” his rights lost under the Pennsylvania law. Id., at 1102-1103. 9. Liens of judgments recorded prior to June 1, 1970 (the date of the filing of the court's opinion), were preserved. A confessed judgment on a contract signed before June 1 could be entered between that date and November 1, but could not be executed upon without a prior hearing to determine the validity of the waiver. The court then declared the Pennsylvania practice of confessing judgments to be unconstitutional, prospectively effective as of the dates stated, as applied to the class designated, and enjoined the entry of any confessed judgment against a member of the class in the absence of a showing of the required waiver. Id., at 1103. The judge dissenting did so as to the limitation of relief to those earning less than $10,000 annually. Id., at 1102. Ill From this judgment only the plaintiffs appeal. Their claim is that the District Court erred in confining the relief it granted to certain members of the appellants’ proffered class and that the court should have declared the Pennsylvania rules and statutes unconstitutional on their face. A holding of facial unconstitutionality, of course, wholly apart from any class consideration, would afford relief to every Pennsylvania cognovit obligor. Today's decision in Overmyer, although it concerns a corporate and not an individual debtor, is adverse to this contention of the plaintiff-appellants. In Overmyer it is recognized, as the District Court in this case recognized, that, under appropriate circumstances, a cognovit debtor may be held effectively and legally to have waived those rights he would possess if the document he signed had contained no cognovit provision. On the plaintiff-appellants’ appeal, therefore, the judgment of the District Court must be affirmed. This affirmance, however, does not mean that the District Court’s opinion and judgment are approved as to their other aspects and details that are not before us. As has been noted, the named defendants and the inter-venors have taken no cross appeal. Furthermore, the Pennsylvania Attorney General’s office, apparently due to an interim personnel change, no longer supports the position taken at the trial by the city solicitor and the deputy attorney general and, not choosing to pursue its customarily assumed duty to defend the Commonwealth’s legislation, now joins the appellants in urging here that the rules and statutes are facially invalid. With the Attorney General taking this position, argument on the side of the defendant-appellees has been presented to us only by the intervenor finance companies and by amici. The permissible reach of this opposition, however, coincides with and goes no further than the extent of the appellants’ appeal. In the absence of a cross appeal, the opposition is in no position to attack those portions of the District Court’s judgment that are favorable to the plaintiff-appellants. IV The decision in Overmyer and the disposition of the present appeal prompt the following observations: 1. In our second concluding comment in Overmyer, supra, at 188, we state that the decision is “not controlling precedent for other facts of other cases,” and we refer to contracts of adhesion, to bargaining power disparity, and to the absence of anything received in return for a cognovit provision. When factors of this kind are present, we indicate, “other legal consequences may ensue.” That caveat has possible pertinency for participants in the Pennsylvania system. 2. Overmyer necessarily reveals some discomfiture on our part with respect to the present case. However that may be, the impact and effect of Overmyer upon the Pennsylvania system are not to be delineated in the one-sided appeal in this case and we make no attempt to do so. 3. Problems of this kind are peculiarly appropriate grist for the legislative mill. On the appellants' appeal, the judgment of the District Court is affirmed. The stay heretofore granted by the Circuit Justice is dissolved. Is is so ordered. Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case. Pa. Rules Civ. Proc. 2950-2976, effective Jan. 1, 1970 (which, by the Act of June 21, 1937, Pa. Laws 1982, have the effect of state statutes); Act of Apr. 14, 1834, Pa. Stat. Ann., Tit. 17, § 1482 III; Act of Feb. 24, 1806, Pa. Stat. Ann., Tit. 12, § 739; Act of Mar. 21, 1806, Pa. Stat. Ann., Tit. 12, § 738. By Rule 2976, Pa. Stat. Ann., Tit. 12, § 739 is suspended “only insofar as it may be inconsistent with these rules,” and Pa. Stat. Ann., Tit. 12, § 738 is suspended in its application to actions to confess judgment for money or for possession of real .property. Prior to the effective date of Rules 2950-2976, Pa. Stat. Ann., Tit. 12, § 738 provided that it “shall be the duty” of the prothonotary to enter an application and “on confession in writing ... he shall enter judgment . . . .” Compare the result reached with respect to the Delaware system in Osmond v. Spence, 327 F. Supp. 1349 (Del. 1971). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Burton delivered the opinion of the Court. The question here is whether, for federal income tax purposes, an individual taxpayer was entitled to deduct, from his gross income, an attorney’s fee paid for contesting the amount of his federal gift tax. For the reasons hereafter stated we hold that he was not. In 1940, Joseph T. Lykes, petitioner herein, gave to his wife and to each of his three children, respectively, 250 shares of common stock in Lykes Brothers, Inc., a closely held family corporation. In his federal gift tax return he valued the shares at $120 each and, on that basis, paid a tax of $13,032.75. In 1944, the Commissioner of Internal Revenue revalued the shares at $915.50 each and notified petitioner of a gift tax deficiency of $145,276.50. Through his attorney, petitioner sought a redetermination of the deficiency, forestalled an assessment, and, in 1946, paid $15,612.75 in settlement of the deficiency pursuant to a finding of the Tax Court based on stipulated facts. In 1944, petitioner had paid his attorney $7,263.83 for legal services in the gift tax controversy but, in his federal income tax return, had not deducted that expenditure from his taxable income. In 1946, he claimed a tax refund on the ground that the attorney’s fee should have been deducted under § 23 (a) (2) of the Internal Revenue Code. His claim was denied by the Commissioner and petitioner sued for a refund. On stipulated and uncontroverted facts the District Court held, as a matter of law, that the payment should have been deducted and entered judgment for petitioner. 84 F. Supp. 537. The Court of Appeals reversed. 188 F. 2d 964. Because of the important statutory issue involved and petitioner’s claim that this case is distinguishable from Cobb v. Commissioner, 173 F. 2d 711, we granted certiorari. 342 U. S. 810. I. Deductions from an individual’s taxable income are limited to those allowed by § 23. Their extent depends upon the legislative policy expressed in the fair and natural meaning of that section. Section 24 adds that in “computing net income no deduction shall in any case be allowed in respect of — (1) Personal, living, or family expenses . . . .” 53 Stat. 16, 56 Stat. 826, 26 U. S. C. § 24 (1). Insofar as gifts to members of a donor’s family are in the nature of personal or family expenses, the donor’s expenditures for accounting, legal or other services incurred in making those gifts are of a like nature. The nondeductibility of such expenditures, therefore, is indicated both by the absence of any affirmative allowance of their deductibility under § 23 and by the express denial of the deductibility of all personal or family expenses under § 24. If the expenditure in the instant case had been made before 1942, it is clear that it would not have been deductible. At that time § 23 permitted an individual to deduct “ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business . . . .” (Emphasis supplied.) 53 Stat. 12, 26 U. S. C. (1940 ed.) § 23 (a) (1). It made no mention of nontrade or nonbusiness expenses. Accordingly, in Higgins v. Commissioner, 312 U. S. 212, when this Court held that expenses incurred by an individual taxpayer in looking after his own income-producing securities were not expenses “incurred ... in carrying on any trade or business,” it also held that they were not deductible. To change that result, Congress, in 1942, added the present § 23 (a) (2). That provision, as demonstrated in its legislative history, permits the deduction of some, but not all, of the nontrade and nonbusiness expenses of an individual taxpayer. It specifies those paid or incurred (1) “for the production or collection of income” or (2) “for the management, conservation, or maintenance of property held for the production of income.” See H. R. Rep. No. 2333, 77th Cong., 2d Sess. Congress might have gone further. However, neither the decision that occasioned the amendment, the Committee Reports on it, nor the language adopted in it indicate that Congress sought to make such a change of policy as would authorize widespread deductibility of personal, living or family expenditures in the face of § 24 (1). Bingham’s Trust v. Commissioner, 325 U. S. 365, 374; McDonald v. Commissioner, 323 U. S. 57, 61-63. Inasmuch as the ordinary and necessary character of the legal expenses incurred in the instant case is not questioned, their deductibility turns wholly upon the nature of the activities to which they relate. The first issue, therefore, is whether petitioner’s gifts, and the legal expenses related to them, were made for the “production or collection of income” within the meaning of § 23 (a)(2). Generally a gift is the antithesis of such production or collection because it reduces the donor’s resources whether income producing or not. However, petitioner suggests that although he stated in his gift tax return that the purpose of his gifts was to express his love for the donees, yet the gifts were part of a general plan to produce income for himself. In support of this, he points out that the gifts consisted of 1,000 shares of stock in a closely held family corporation of which he is the president and in which he retained personal ownership of about 2,000 like shares, and that one of the donees, his son, is now actively identified with the corporation and is one of its directors. The District Court did not find that these facts, or anything else in the record, provided an adequate basis for reclassifying petitioner’s stock transfers and his payment of a related legal fee as expenditures for the production of income, rather than as gifts accompanied by an ordinary and necessary attorney’s fee for contesting the amount of a federal gift tax treating the stock transfers as gifts. The Court of Appeals, on review of the entire record, expressly held that the transfers were gifts and that the attorney’s fee was not proximately related to the production of income. That court then applied to the attorney’s fee the interpretation of § 23 (a) (2) approved in Cobb v. Commissioner, supra. We agree to the applicability of that interpretation which disallows the fee as a deduction from taxable income. Similarly, there is no substantial factual basis here for treating the stock transfers and the related attorney’s fee as mere incidents of petitioner’s "management, conservation, or maintenance of property held for the production of income.” Even assuming that petitioner’s 3,000 shares in Lykes Brothers, Inc., did constitute property originally held by him for the production of income, there is no finding, and no adequate basis for a finding, that his donation of one-third of that stock actually was not the gift he represented it to be. Petitioner does not claim that the gift itself is deductible and, if it, as the principal item in the transaction, is not deductible, we find no adequate basis in this record for holding the related attorney’s fee deductible. II. Legal expenses do not become deductible merely because they are paid for services which relieve a taxpayer of liability. That argument would carry us too far. It would mean that the expense of defending almost any claim would be deductible by a taxpayer on the ground that such defense was made to help him keep clear of liens whatever income-producing property he might have. For example, it suggests that the expense of defending an action based upon personal injuries caused by a taxpayer’s negligence while driving an automobile for pleasure should be deductible. Section 23 (a) (2) never has been so interpreted by us. It has been applied to expenses on the basis of their immediate purposes rather than upon the basis of the remote contributions they might make to the conservation of a taxpayer’s income-producing assets by reducing his general liabilities. See McDonald v. Commissioner, supra, at 62-63. While the threatened deficiency assessment of nearly $150,000 added urgency to petitioner’s resistance of it, neither its size nor its urgency determined its character. It related to the tax payable on petitioner’s gifts, as gifts, and it was finally settled on an agreed revaluation of the securities constituting those gifts. The expense of contesting the amount of the deficiency was thus at all times attributable to the gifts, as such, and accordingly was not deductible. If, as suggested, the relative size of each claim, in proportion to the income-producing resources of a defendant, were to be a touchstone of the deductibility of the expense of resisting the claim, substantial uncertainty and inequity would inhere in the rule. For example, the expense of defending a personal injury suit for negligence, or a suit for alienation of affections, claiming $1,000 damages, probably would not be a deductible expense for any defendant. On the other hand, if the same plaintiff on the same facts asked for $5,000, $10,000 or $100,000 damages, and the defendant held some income-producing property, that defendant might be permitted to deduct from his taxable income the same expense for precisely the same services as those upon which his less well-to-do neighbor would have to pay a tax in the other case. It is not a ground for defense that the claim, if justified, will consume income-producing property of the defendant. We find no such distinction made or implied in the Revenue Act. III. While the Treasury Regulations, in 1944, did not refer to the issue now before us, they were consistent with the position we have taken. Furthermore, since 1946, T. D. 5513, 26 CFR § 29.23 (a)-15 (k), has unequivocally stated that legal expenses incurred by an individual in the determination of gift tax liability are not deductible. That interpretation of § 23 (a) (2) appears in the following language: “Expenses paid or incurred by an individual in determining or contesting any liability asserted against him do not become deductible ... by reason of the fact that property held by him for the production of income may be required to be used or sold for the purpose of satisfying such liability. Thus, expenses paid or incurred by an individual in the determination of gift tax liability, except to the extent that such expenses are allocable to interest on a refund of gift taxes, are not deductible, even though prop erty held by him for the production of income must be sold to satisfy an assessment for such tax liability or even though, in the event of a claim for refund, the amount received will be held by him for the production of income.” (Emphasis supplied.) Such a regulation is entitled to substantial weight. See Commissioner v. South Texas Co., 333 U. S. 496, 501; Morrissey v. Commissioner, 296 U. S. 344, 355; Fawcus Machine Co. v. United States, 282 U. S. 375, 378. Since the publication of that Treasury Decision, Congress has made many amendments to the Internal Revenue Code without revising this administrative interpretation of § 23 (a) (2). See Revenue Act of 1948, c. 168, 62 Stat. 110; Revenue Act of 1950, c. 994, 64 Stat. 906; Revenue Act of 1951, c. 521, 65 Stat. 452; Higgins v. Commissioner, supra, at 216; Morrissey v. Commissioner, supra, at 355. The judgment of the Court of Appeals accordingly is Affirmed. Mr. Justice Black dissents. “SEC. 23. DEDUCTIONS FROM GROSS INCOME. “In computing net income there shall be allowed as deductions: “(a) EXPENSES.— “(2) Non-trade or non-business expenses. — In the case of an individual, all the ordinary and necessary expenses paid or incurred during the taxable year for the production or collection of income, or for the management, conservation, or maintenance of property held for the production of income.” (Emphasis supplied.) 53 Stat. 12, 56 Stat. 819, 26 U. S. C. § 23 (a) (2). “To construe the law as giving to the Commissioner the power to assess a taxpayer with a deficiency tax greatly in excess of what he owes and to hold that such law denies to the taxpayer the right to contest such assessment, except at his own personal expense, just isn’t justice under the law. The statute in question gives the Commissioner no such power . . . .” 84 F. Supp. 537, 539. The tax is “levied, collected, and paid for each taxable year upon the net income of every individual . . . .” 53 Stat. 5, 26 U. S. C. § 11. “ ‘Net income’ means the gross income computed under section 22, less the deductions allowed by section 23.” 53 Stat. 9, 26 U. S. C. § 21. There have been expressions by this Court placing a restrictive interpretation upon allowable deductions by virtue of “the now familiar rule that an income tax deduction is a matter of legislative grace and that the burden of clearly showing the right to the claimed deduction is on the taxpayer.” Interstate Transit Lines v. Commissioner, 319 U. S. 590, 593; Deputy v. du Pont, 308 U. S. 488, 493; New Colonial Ice Co. v. Helvering, 292 U. S. 435, 440. Such an interpretation is not necessary here and is not relied upon in this case. See Griswold, An Argument against the Doctrine that Deductions Should Be Narrowly Construed as a Matter of Legislative Grace, 56 Harv. L. Rev. 1142. And see United States v. Pyne, 313 U. S. 127 (attorney’s fees and other expenses of executors in caring for securities and investments not deductible); City Bank Co. v. Helvering, 313 U. S. 121 (similar expenses of testamentary trustee not deductible); Van Wart v. Commissioner, 295 U. S. 112 (attorney’s fee for litigation to recover income for a ward not deductible). See note 1, supra. “. . . Due partly to the inadequacy of the statute and partly to court decisions, nontrade or nonbusiness expenses are not deductible, although nontrade or nonbusiness income is fully subject to tax. The bill corrects this inequity by allowing all of the ordinary and necessary expenses paid or incurred for the production or collection of income or for the management, conservation or maintenance of property held for the production of income. Thus, whether or not the expense is in connection with the taxpayer’s trade or business, if it is expended in the pursuit of income or in connection with property held for the production of income, it is allowable. “. . . The expenses, however, of carrying on a transaction which does not constitute a trade or business of the taxpayer and is not carried on for the production of income or for the management, conservation, or maintenance of property, but which is carried on primarily as a sport, hobby, or recreation are not allowable as non-trade or nonbusiness expenses. “Expenses, to be deductible under section 23 (a) (2), must be ordinary and necessary, which rule presupposes that they must be reasonable in amount and must bear a reasonable and proximate relation to the production or collection of income, or to the management, conservation, or maintenance of property held for that purpose. “A deduction under this section is subject, except for the requirement of being incurred in connection with a trade or business, to all the restrictions and limitations that apply in the case of the deduction under section 23 (a)(1) (A) of an expense paid or incurred in carrying on any trade or business.” Id., at 46, 75. To the same effect, see S. Rep. No. 1631, 77th Cong., 2d Sess., at 87-88. For cases resulting in the nondeductibility of legal expenses, see e. g., Croker v. Burnet, 61 App. D. C. 342, 62 F. 2d 991 (C. A. D. C. Cir., en banc) (defending suit to have taxpayer’s husband declared incompetent and to set aside his transfer of property to taxpayer); Dickey v. Commissioner, 14 B. T. A. 1295 (defense against suit for malicious prosecution); Joyce v. Commissioner, 3 B. T. A. 393 (defense of validity of postnuptial agreement); Oransky v. Commissioner, 1 B. T. A. 1239 (defense and settlement of action for death due to negligence of taxpayer’s minor son using taxpayer’s automobile). See Kornhauser v. United States, 276 U. S. 145, for an example of legal expenses held deductible as business expenditures rather than personal ones. The record shows that the corporation was organized in 1910 by petitioner’s elder brothers and was originally engaged in the cattle, ranching and meat packing business. Later it engaged in extensive steamship and stevedoring operations through a subsidiary. While it was a large enterprise with numerous stockholders besides petitioner, his wife and children, the stock never had been on the open market. It was held by sons, nephews and sons-in-law of the Lykes brothers. It was the practice of the brothers to foster in this way a continuity of family ownership and management. At the time of petitioner’s gift of 1,000 shares of common stock, there were outstanding about 25,000 shares of that class of stock. The issue here is distinguishable from that in Bingham’s Trust v. Commissioner, supra. In that case the legal expenses were incurred partly in contesting an income tax deficiency assessed against the taxpaying trust and partly in winding up the trust after its expiration. All of those expenses were integral parts of the management or conservation of the trust property for the production of income and, as such, deductible under § 23 (a) (2). Treas. Reg. 111, § 29.23 (a)-15 (b). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

L

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Brennan delivered the opinion of the Court. A judge sitting without a jury in the District Court for the Eastern District of Pennsylvania convicted petitioner Ginzburg and three corporations controlled by him upon all 28 counts of an indictment charging violation of the federal obscenity statute, 18 U. S. C. § 1461 (1964 ed.). 224 E. Supp. 129. Each count alleged that a resident of the Eastern District received mailed matter, either one of three publications challenged as obscene, or advertising telling how and where the publications might be obtained. The Court of Appeals for the Third Circuit affirmed, 338 F. 2d 12. We granted certiorari, 380 U. S. 961. We affirm. Since petitioners do not argue that the trial judge misconceived or failed to apply the standards we first enunciated in Roth v. United States, 354 U. S. 476, the only serious question is whether those standards were correctly applied. In the cases in which this Court has decided obscenity questions since Roth, it has regarded the materials as sufficient in themselves for the determination of the question. In the present case, however, the prosecution charged the offense in the context of the circumstances of production, sale, and publicity and assumed that, standing alone, the publications themselves might not be obscene. We agree that the question of obscenity may include consideration of the setting in which the publications were presented as an aid to determining the question- of obscenity, and assume without deciding that the prosecution could not have succeeded otherwise. As in Mishkin v. New York, post, p. 502, and as did the courts below, 224 F. Supp., at 134, 338 F. 2d, at 14-15, we view the publications against a background of commercial exploitation of erotica solely for the sake of their prurient appeal. The record in that regard amply supports the decision of the trial judge that the mailing of all three publications offended the statute. The three publications were EROS, a hard-cover magazine of expensive format; Liaison, a bi-weekly newsletter; and The Housewife’s Handbook on Selective Promiscuity (hereinafter the Handbook), a short book. The issue of EROS specified in the indictment, Vol. 1, No. 4, contains 15 articles and photo-essays on the subject of love, sex, and sexual relations. The specified issue of Liaison, Yol. 1, No. 1, contains a prefatory “Letter from the Editors” announcing its dedication to “keeping sex an art and preventing it from becoming a science.” The remainder of the issue consists of digests of two articles concerning sex and sexual relations which had earlier appeared in professional journals and a report of an interview with a psychotherapist who favors the broadest license in sexual relationships. As the trial judge noted, “[w]hile the treatment is largely superficial, it is presented entirely without restraint of any kind. According to defendants’ own expert, it is entirely without literary merit.” 224 F. Supp., at 134. The-Handbook purports to be a sexual autobiography detailing with complete candor the author’s sexual experiences from age 3 to age 36. The text includes, and prefatory and concluding sections of the book elaborate, her views on such subjects as sex education of children, laws regulating private consensual adult sexual practices, and the equality of women in sexual relationships. It was claimed at trial that women would find the book valuable, for example as a marriage manual or as an aid to the sex education of their children. Besides testimony as to the merit of the material, there was abundant evidence to show that each of the accused publications was originated or sold as stock in trade of the sordid business of pandering — “the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers.” EROS early sought mailing privileges from the postmasters of Intercourse and Blue Ball, Pennsylvania. The trial court found the obvious, that these hamlets were chosen only for the value their names would have in furthering petitioners’ efforts to sell their publications on the basis of salacious appeal; the facilities of the post offices were inadequate to handle the anticipated volume of mail, and the privileges were denied. Mailing privileges were then obtained from the postmaster of Middlesex, New Jersey. EROS and Liaison thereafter mailed several million circulars soliciting subscriptions from that post office; over 5,500 copies of the Handbook were mailed. The “leer of the sensualist” also permeates the advertising for the three publications. The circulars sent for EROS and Liaison stressed the sexual candor of the respective publications, and openly boasted that the publishers would take full advantage of what they regarded as an unrestricted license allowed by law in the expression of sex and sexual matters. The advertising for the Handbook, apparently mailed from New York, consisted almost entirely of a reproduction of the introduction of the book, written by one Dr. Albert Ellis. Although he alludes to the book’s informational value and its putative therapeutic usefulness, his remarks are preoccupied with the book’s sexual imagery. The solicitation was indiscriminate, not limited to those, such as physicians or psychiatrists, who might independently discern the book’s therapeutic worth. Inserted in each advertisement was a slip labeled “GUARANTEE” and reading, “Documentary Books, Inc. unconditionally guarantees full refund of the price of THE HOUSEWIFE’S HANDBOOK ON SELECTIVE PROMISCUITY if the book fails to reach you because of U. S. Post Office censorship interference.” Similar slips appeared in the advertising for EROS and Liaison; they highlighted the gloss petitioners put on the publications, eliminating any doubt what the purchaser was being asked to buy. This evidence, in our view, was relevant in determining the ultimate question of obscenity and, in the context of this record, serves to resolve all ambiguity and doubt. The deliberate representation of petitioners’ publications as erotically arousing, for example, stimulated the reader to accept them as prurient; he looks for titillation, not for saving intellectual content. Similarly, such representation would tend to force public confrontation with the potentially offensive aspects of the work; the brazenness of such an appeal heightens the offensiveness of the publications to those who are offended by such material. And the circumstances of presentation and dissemination of material are equally relevant to determining whether social importance claimed for material in the courtroom was, in the circumstances, pretense or reality — whether it was the basis upon which it was traded in the marketplace or a spurious claim for litigation purposes. Where the purveyor’s sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity. Certainly in a prosecution which, as here, does not necessarily imply suppression of the materials involved, the fact that they originate or are used as a subject of pandering is relevant to the application of the Roth test. A proposition argued as to EROS, for example, is that the trial judge improperly found the magazine to be obscene as a whole, since he concluded that only four of the 15 articles predominantly appealed to prurient interest and substantially exceeded community standards of candor, while the other articles were admittedly non-offensive. But the trial judge found that “[t]he deliberate and studied arrangement of EROS is editorialized for the purpose of appealing predominantly to prurient interest and to insulate through the inclusion of non-offensive material.” 224 F. Supp., at 131. However erroneous such a conclusion might be if unsupported by the evidence of pandering, the record here supports it. EROS was created, represented and sold solely as a claimed instrument of the sexual stimulation it would bring. Like the other publications, its pervasive treatment of sex and sexual matters rendered it available to exploitation by those who would make a business of pandering to “the widespread weakness for titillation by pornography.” Petitioners’ own expert agreed, correctly we think, that “[i]f the object [of a work] is material gain for the creator through an appeal to the sexual curiosity and appetite,” the work is pornographic. In other words, by animating sensual detail to give the publication a salacious cast, petitioners reinforced what is conceded by the Government to be an otherwise debatable conclusion. A similar analysis applies to the judgment regarding the Handbook. The bulk of the proofs directed to social importance concerned this publication. Before selling publication rights to petitioners, its author had printed it privately; she sent circulars to persons whose names appeared on membership lists of medical and psychiatric associations, asserting its value as an adjunct to therapy. Over 12,000 sales resulted from this solicitation, and a number of witnesses testified that they found the work useful in their professional practice. The Government does not seriously contest the claim that the book has worth in such a controlled, or even neutral, environment. Petitioners, however, did not sell the book to such a limited audience, or focus their claims for it on its supposed therapeutic or educational value; rather, they deliberately emphasized the sexually provocative aspects of the work, in order to catch the salaciously disposed. They proclaimed its obscenity; and we cannot conclude that the court below erred in taking their own evaluation at its face value and declaring the book as a whole obscene despite the other evidence. The decision in United States v. Rebhuhn, 109 F. 2d 512, is persuasive authority for our conclusion. That was a prosecution under the predecessor to § 1461, brought in the context of pandering of publications assumed useful to scholars and members of learned professions. The books involved were written by authors proved in many instances to have been men of scientific standing, as anthropologists or psychiatrists. The Court of Appeals for the Second Circuit therefore assumed that many of the books were entitled to the protection of the First Amendment, and “could lawfully have passed through the mails, if directed to those who would be likely to use them for the purposes for which they were written . . . .” 109 F. 2d, at 514. But the evidence, as here, was that the defendants had not disseminated them for their “proper use, but . . . woefully misused them, and it was that misuse which constituted the gravamen of the crime.” Id., at 515. Speaking for the Court in affirming the conviction, Judge Learned Hand said: “. . . [T] he works themselves had a place, though a limited one, in anthropology and in psychotherapy. They might also have been lawfully sold to laymen who wished seriously to study the sexual practices of savage or barbarous peoples, or sexual aberrations; in other words, most of them were not obscene per se. In several decisions we have held that the statute does not in all circumstances forbid the dissemination of such publications .... However, in the case at bar, the prosecution succeeded . . . when it showed that the defendants had indiscriminately flooded the mails with advertisements, plainly designed merely to catch the prurient, though under the guise of distributing works of scientific or literary merit. We do not mean that the distributor of such works is charged with a duty to insure that they shall reach only proper hands, nor need we say what care he must use, for these defendants exceeded any possible limit; the circulars were no more than appeals to the salaciously disposed, and no [fact finder] could have failed to pierce the fragile screen, set up to cover that purpose.” 109 F. 2d, at 514-515. We perceive no threat to First Amendment guarantees in thus holding that in close cases evidence of pandering may be probative with respect to the nature of the material in question and thus satisfy the Both test. No weight is ascribed to the fact that petitioners have profited from the sale of publications which we have assumed but do not hold cannot themselves be adjudged obscene in the abstract; to sanction consideration of this fact might indeed induce self-censorship, and offend the frequently stated principle that commercial activity, in itself, is no justification for narrowing the protection of expression secured by the First Amendment. Rather, the fact that each of these publications was created or exploited entirely on the basis of its appeal to prurient interests strengthens the conclusion that the transactions here were sales of illicit merchandise, not sales of constitutionally protected matter. A conviction for mailing obscene publications, but explained in part by the presence of this element, does not necessarily suppress the materials in question, nor chill their proper distribution for a proper use. Nor should it inhibit the enterprise of others seeking through serious endeavor to advance human knowledge or understanding in science, literature, or art. All that will have been determined is that questionable publications are obscene in a context which brands them as obscene as that term is defined in Roth — a use inconsistent with any claim to the shelter of the First Amendment. “The nature of the materials is, of course, relevant as an attribute of the defendant’s conduct, but the materials are thus placed in context from which they draw color and character. A wholly different result might be reached in a different setting.” Roth v. United States, 354 U. S., at 495 (Warren, C. J., concurring). It is important to stress that this analysis simply elaborates the test by which the obscenity vel non of the material must be judged. Where an exploitation of interests in titillation by pornography is shown with respect to material lending itself to such exploitation through pervasive treatment or description of sexual matters, such evidence may support the determination that the material is obscene even though in other contexts the material would escape such condemnation. Petitioners raise several procedural objections, principally directed to the findings which accompanied the trial court’s memorandum opinion, Fed. Rules Crim. Proc. 23. Even on the assumption that petitioners’ objections are well taken, we perceive no error affecting their substantial rights. Affirmed. No challenge was or is made to venue under 18 U. S. C. § 3237 (1964 ed.). The federal obscenity statute, 18 U. S. C. § 1461, provides in pertinent part: “Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and— “Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indireetly, where, or how, or from whom, or by what means any of such mentioned matters . . . may be obtained .... “Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. “Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section to be nonmailable . . . shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense . . . We are not, however, to be understood as approving all aspects of the trial judge’s exegesis of Roth, for example his remarks that “the community as a whole is the proper consideration. In this community, our society, we have children of all ages, psychotics, feeble-minded and other susceptible elements. Just as they cannot set the pace for the average adult reader’s taste, they cannot be overlooked as part of the community.” 224 F. Supp., at 137. Compare Butler v. Michigan, 352 U. S. 380. The Government stipulated at trial that the circulars advertising the publications were not themselves obscene; therefore the convictions on the counts for mailing the advertising stand only if the mailing of the publications offended the statute. Our affirmance of the convictions for mailing EROS and Liaison is based upon their characteristics as a whole, including their editorial formats, and not upon particular articles contained, digested, or excerpted in them. Thus we do not decide whether particular articles, for example, in EROS, although identified by the trial judge as offensive, should be condemned as obscene whatever their setting. Similarly, we accept the Government’s concession, note 13, infra, that the prosecution rested upon the manner in which the petitioners sold the Handbook; thus our affirmance implies no agreement with the trial judge’s characterizations of the book outside that setting. It is suggested in dissent that petitioners were unaware that the record being established could be used in support of such an approach, and that petitioners should be afforded the opportunity of a new trial. However, the trial transcript clearly reveals that at several points the Government announced its theory that made the mode of distribution relevant to the determination of obscenity, and the trial court admitted evidence, otherwise irrelevant, toward that end. Roth v. United, States, supra, 354 U. S., at 495-496 (Warren, C. J., concurring). Evidence relating to petitioners’ efforts to secure mailing privileges from these post offices was, contrary to the suggestion of Mr. Justice Harlan in dissent, introduced for the purpose of supporting such a finding. Scienter had been stipulated prior to trial. The Government’s position was revealed in the following colloquy, which occurred when it sought to introduce a letter to the postmaster of Blue Ball, Pennsylvania: “The COURT. Who signed the letter? “Mr. CREAMER. It is signed by Frank R. Brady, Associate Publisher of Mr. Ginzburg. It is on Eros Magazine, Incorporated’s stationery. “The COURT. And your objection is- “Mr. SHAPIRO. It is in no way relevant to the particular issue or publication upon which the defendant has been indicted and in my view, even if there was an identification with respect to a particular issue, it would be of doubtful relevance in that event. “The COURT. Anything else to say? “Mr. CREAMER. If Your Honor pleases, there is a statement in this letter indicating that it would be advantageous to this publication to have it disseminated through Blue Ball, Pennsylvania, post office. I think this clearly goes to intent, as to what the purpose of publishing these magazines was. At least, it clearly establishes one of the reasons why they were disseminating this material. “The COURT. Admitted.” Thus, one EROS advertisement claimed: “Eros is a child of its times. . . . [It] is the result of recent court decisions that have realistically interpreted America’s obscenity laws and that have given to this country a new breadth of freedom of expression. . . . EROS takes full advantage of this new freedom of expression. It is the magazine of sexual candor.” In another, more lavish spread: “EROS is a new quarterly devoted to the subjects of Love and Sex. In the few short weeks since its birth, EROS has established itself as the rave of the American intellectual community — and the rage of prudes everywhere! And it’s no wonder: EROS handles the subjects of Love and Sex with complete candor. The publication of this magazine — which is frankly and avowedly concerned with erotica — has been enabled by recent court decisions ruling that a literary piece or painting, though explicitly sexual in content, has a right to be published if it is a genuine work of art. “EROS is a genuine work of art. . . .” An undisclosed number of advertisements for Liaison were mailed. The outer envelopes of these ads ask, “Are you among the chosen few?” The first line of the advertisement eliminates the ambiguity: “Are you a member of the sexual elite?” It continues: “That is, are you among the few happy and enlightened individuals who believe that a man and woman can make love without feeling pangs of conscience? Can you read about love and sex and discuss them without blushing and stammering? “If so, you ought to know about an important new periodical called Liaison. “In short, Liaison is Cupid’s Chronicle. . . . “Though Liaison handles the subjects of love and sex with complete candor, I wish to make it clear that it is not .a scandal sheet and it is not written for the man in the street. Liaison is aimed at intelligent, educated adults who can accept love and sex as part of life. “. . . I’ll venture to say that after you’ve read your first biweekly issue, Liaison will be your most eagerly awaited piece of mail.” Note 13, infra. There is much additional evidence supporting the conclusion of petitioners’ pandering. One of petitioners’ former writers for Liaison, for example, testified about the editorial goals and practices of that publication. Schwartz, Morals Offenses and the Model Penal Code, 63 Col. L. Rev. 669, 677 (1963). The Government drew a distinction between the author’s and petitioners’ solicitation. At the sentencing proceeding the United States Attorney stated: “. . . [the author] was distributing . . . only to physicians; she never had widespread, indiscriminate distribution of the Handbook, and, consequently, the Post Office Department did not interfere .... If Mr. Ginzburg had distributed and sold and advertised these books solely to . . . physicians . . . we, of course, would not be here this morning with regard to The Housewife’s Handbook . . . .” The Proposed Official Draft of the ALI Model Penal Code likewise recognizes the question of pandering as relevant to the obscenity issue, §251.4 (4); Tentative Draft No. 6 (May 6, 1957), pp. 1-3, 13-17, 45-46, 53; Schwartz, supra, n. 12; see Craig, Suppressed Books, 195-206 (1963). Compare Grove Press, Inc. v. Christenberry, 175 F. Supp. 488, 496-497 (D. C. S. D. N. Y. 1959), aff’d 276 F. 2d 433 (C. A. 2d Cir. 1960); United States v. One Book Entitled Ulysses, 72 F. 2d 705, 707 (C. A. 2d Cir. 1934), affirming 5 F. Supp. 182 (D. C. S. D. N. Y. 1933). See also The Trial of Lady Chatterly—Regina v. Penguin Books, Ltd. (Rolph. ed. 1961). Our conclusion is consistent with the statutory scheme. Although § 1461, in referring to “obscene . . . matter” may appear to deal with the qualities of material in the abstract, it is settled that the mode of distribution may be a significant part in the determination of the obscenity of the material involved. United States v. Rebhuhn, supra. Because the statute creates a criminal remedy, cf. Manual Enterprises v. Day, 370 U. S. 478, 495 (opinion of BreNNAN, J.), it readily admits such an interpretation, compare United States v. 31 Photographs, etc., 156 F. Supp. 350 (D. C. S. D. N. Y. 1957). See New York Times v. Sullivan, 376 U. S. 254, 265-266; Smith v. California, 361 U. S. 147, 150. See Valentine v. Chrestensen, 316 U. S. 52, where the Court viewed handbills purporting to contain protected expression as merely commercial advertising. Compare that decision with Jami-son v. Texas, 318 U. S. 413, and Murdock v. Pennsylvania, 319 U. S. 105, where speech having the characteristics of advertising was held to be an integral part of religious discussions and hence protected. Material sold solely to produce sexual arousal, like commercial advertising, does not escape regulation because it has been dressed up as speech, or in other contexts might be recognized as speech. Compare Breard v. Alexandria, 341 U. S. 622, with Martin v. Struthers, 319 U. S. 141. Cf. Kovacs v. Cooper, 336 U. S. 77; Giboney v. Empire Storage Co., 336 U. S. 490; Cox v. Louisiana, 379 U. S. 536, 559. One who advertises and sells a work on the basis of its prurient appeal is not threatened by the perhaps inherent residual vagueness of the Roth test, cf. Dombrowski v. Pfister, 380 U. S. 479, 486-487, 491-492; such behavior is central to the objectives of criminal obscenity laws. ALI Model Penal Code, Tentative Draft No. 6 (May 6, 1957), pp. 1-3, 13-17; Comments to the Proposed Official Draft §251.4, supra; Schwartz, Morals Offenses and the Model Penal Code, 63 Col. L. Rev. 669, 677-681 (1963); Paul & Schwartz, Federal Censorship— Obscenity in the Mail, 212-219 (1961); see Mishkin v. New York, post, p. 502, at 507, n. 5. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

C

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Thomas delivered the opinion of the Court. California law provides that every prisoner eligible for release on state parole “shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.” Cal. Penal Code Ann. § 3067(a) (West 2000). We granted certiorari to decide whether a suspicionless search, conducted under the authority of this statute, violates the Constitution. We hold that it does not. I In September 2002, petitioner Donald Curtis Samson was on state parole in California, following a conviction for being a felon in possession of a firearm. On September 6, 2002, Officer Alex Rohleder of the San Bruno Police Department observed petitioner walking down a street with a woman and a child. Based on a prior contact with petitioner, Officer Rohleder was aware that petitioner was on parole and believed that he was facing an at-large warrant. Accordingly, Officer Rohleder stopped petitioner and asked him whether he had an outstanding parole warrant. Petitioner responded that there was no outstanding warrant and that he “was in good standing with his parole agent.” Brief for Petitioner 4. Officer Rohleder confirmed, by radio dispatch, that petitioner was on parole and that he did not have an outstanding warrant. Nevertheless, pursuant to Cal. Penal Code Ann. § 3067(a) (West 2000) and based solely on petitioner’s status as a parolee, Officer Rohleder searched petitioner. During the search, Officer Rohleder found a cigarette box in petitioner’s left breast pocket. Inside the box he found a plastic baggie containing methamphetamine. The State charged petitioner with possession of methamphetamine pursuant to Cal. Health & Safety Code Ann. § 11377(a) (West 1991). The trial court denied petitioner’s motion to suppress the methamphetamine evidence, finding that Cal. Penal Code Ann. § 3067(a) (West 2000) authorized the search and that the search was not “arbitrary or capricious.” App. 62-63 (Proceedings on Motion to Supress). A jury convicted petitioner of the possession charge, and the trial court sentenced him to seven years’ imprisonment. The California Court of Appeal affirmed. Relying on People v. Reyes, 19 Cal. 4th 743, 968 P. 2d 445 (1998), the court held that suspicionless searches of parolees are lawful under California law; that “ ‘[s]uch a search is reasonable within the meaning of the Fourth Amendment as long as it is not arbitrary, capricious or harassing’”; and that the search in this case was not arbitrary, capricious, or harassing. No. A102394 (Ct. App. Cal., 1st App. Dist., Oct. 14, 2004), App. 12-14. We granted certiorari, 545 U. S. 1165 (2005), to answer a variation of the question this Court left open in United States v. Knights, 534 U. S. 112, 120, n. 6 (2001) — whether a condition of release can so diminish or eliminate a released prisoner’s reasonable expectation of privacy that a suspicion-less search by a law enforcement officer would not offend the Fourth Amendment. Answering that question in the affirmative today, we affirm the judgment of the California Court of Appeal. II “[Ujnder our general Fourth Amendment approach” we “examin[e] the totality of the circumstances” to determine whether a search is reasonable within the meaning of the Fourth Amendment. Id., at 118 (internal quotation marks omitted). Whether a search is reasonable “is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Id., at 118-119 (internal quotation marks omitted). We recently applied this approach in United States v. Knights. In that case, California law required Knights, as a probationer, to “ ‘[sjubmit his ... person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer.’” Id., at 114 (brackets in original). Several days after Knights had been placed on probation, police suspected that he had been involved in several incidents of arson and vandalism. Based upon that suspicion and pursuant to the search condition of his probation, a police officer conducted a warrantless search of Knights’ apartment and found arson and drug paraphernalia. Id., at 115-116. We concluded that the search of Knights’ apartment was reasonable. In evaluating the degree of intrusion into Knights’ privacy, we found Knights’ probationary status “salient,” id., at 118, observing that “[probation is ‘one point ... on a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service,’” id., at 119 (quoting Griffin v. Wisconsin, 483 U. S. 868, 874 (1987)). Cf. Hudson v. Palmer, 468 U. S. 517, 530 (1984) (holding that prisoners have no reasonable expectation of privacy). We further observed that, by virtue of their status alone, probationers “ ‘do not enjoy “the absolute liberty to which every citizen is entitled,” ’ ” Knights, supra, at 119 (quoting Griffin, supra, at 874, in turn quoting Morrissey v. Brewer, 408 U. S. 471, 480 (1972)), justifying the “impos[ition] [of] reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens,” Knights, supra, at 119. We also considered the facts that Knights’ probation order clearly set out the probation search condition, and that Knights was clearly informed of the condition. See 534 U. S., at 119. We concluded that under these circumstances, Knights’ expectation of privacy was significantly diminished. See id., at 119-120. We also concluded that probation searches, such as the search of Knights’ apartment, are necessary to the promotion of legitimate governmental interests. Noting the State’s dual interest in integrating probationers back into the community and combating recidivism, see id., at 120-121, we credited the “ ‘assumption’ ” that, by virtue of his status, a probationer “ ‘is more likely than the ordinary citizen to violate the law,’” id., at 120 (quoting Griffin, supra, at 880). We further found that “probationers have even more of an incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary criminal because probationers are aware that they may be subject to supervision and face revocation of probation, and possible incarceration, in proceedings in which the trial rights of a jury and proof beyond a reasonable doubt, among other things, do not apply.” Knights, 534 U. S., at 120. We explained that the State did not have to ignore the reality of recidivism or suppress its interests in “protecting potential victims of criminal enterprise” for fear of running afoul of the Fourth Amendment. Id., at 121. Balancing these interests, we held that “[w]hen an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer’s significantly diminished privacy interests is reasonable.” Ibid. Because the search at issue in Knights was predicated on both the probation search condition and reasonable suspicion, we did not reach the question whether the search would have been reasonable under the Fourth Amendment had it been solely predicated upon the condition of probation. Id., at 120, n. 6. Our attention is directed to that question today, albeit in the context of a parolee search. Ill As we noted in Knights, parolees are on the “continuum” of state-imposed punishments. Id., at 119 (internal quotation marks omitted). On this continuum, parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment. As this Court has pointed out, “parole is an established variation on imprisonment of convicted criminals. . . . The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence.” Morrissey, supra, at 477. “In most cases, the State is willing to extend parole only because it is able to condition it upon compliance with certain requirements.” Pennsylvania Bd. of Probation and Parole v. Scott, 524 U. S. 357, 365 (1998). See also United States v. Reyes, 283 F. 3d 446, 461 (CA2 2002) (“[FJederal supervised release,... in contrast to probation, is meted out in addition to, not in lieu of, incarceration” (internal quotation marks omitted)); United States v. Cardona, 903 F. 2d 60, 63 (CA1 1990) (“[0]n the Court’s continuum of possible punishments, parole is the stronger medicine; ergo, parolees enjoy even less of the average citizen’s absolute liberty than do probationers” (citations and internal quotation marks omitted)). California’s system of parole is consistent with these observations: A California inmate may serve his parole period either in physical custody, or elect to complete his sentence out of physical custody and subject to certain conditions. Cal. Penal Code Ann. § 3060.5 (West 2000). Under the latter option, an inmate-turned-parolee remains in the legal custody of the California Department of Corrections through the remainder of his term, § 3056, and must comply with all of the terms and conditions of parole, including mandatory drug tests, restrictions on association with felons or gang members, and mandatory meetings with parole officers, Cal. Code Regs., tit. 15, § 2512 (2005); Cal. Penal Code Ann. § 3067 (West 2000). See also Morrissey, supra, at 478 (discussing other permissible terms and conditions of parole). General conditions of parole also require a parolee to report to his assigned parole officer immediately upon release, inform the parole officer within 72 hours of any change in employment status, request permission to travel a distance of more than 50 miles from the parolee’s home, and refrain from criminal conduct and possession of firearms, specified weapons, or knives unrelated to employment. Cal. Code Regs., tit. 15, §2512. Parolees may also be subject to special conditions, including psychiatric treatment programs, mandatory abstinence from alcohol, residence approval, and “[a]ny other condition deemed necessary by the Board [of Parole Hearings] or the Department [of Corrections and Rehabilitation] due to unusual circumstances.” §2513. The extent and reach of these conditions clearly demonstrate that parolees like petitioner have severely diminished expectations of privacy by virtue of their status alone. Additionally, as we found “salient” in Knights with respect to the probation search condition, the parole search condition under California law — requiring inmates who opt for parole to submit to suspicionless searches by a parole officer or other peace officer “at any time,” Cal. Penal Code Ann. § 3067(a) (West 2000) — was “clearly expressed” to petitioner. Knights, 534 U. S., at 119. He signed an order submitting to the condition and thus was “unambiguously” aware of it. Ibid. In Knights, we found that acceptance of a clear and unambiguous search condition “significantly diminished Knights’ reasonable expectation of privacy.” Id., at 120. Examining the totality of the circumstances pertaining to petitioner’s status as a parolee, “an established variation on imprisonment,” Morrissey, 408 U. S., at 477, including the plain terms of the parole search condition, we conclude that petitioner did not have an expectation of privacy that society would recognize as legitimate. The State’s interests, by contrast, are substantial. This Court has repeatedly acknowledged that a State has an “‘overwhelming interest’” in supervising parolees because “parolees. . . are more likely to commit future criminal offenses.” Pennsylvania Bd. of Probation and Parole, 524 U. S., at 365 (explaining that the interest in combating recidivism “is the very premise behind the system of close parole supervision”). Similarly, this Court has repeatedly acknowledged that a State’s interests in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees warrant privacy intrusions that would not otherwise be tolerated under the Fourth. Amendment. See Griffin, 483 U. S., at 879; Knights, supra, at 121. The empirical evidence presented in this case clearly demonstrates the significance of these interests to the State of California. As of November 30, 2005, California had over 130,000 released parolees. California’s parolee population has a 68- to 70-percent recidivism rate. See California Attorney General, Crime in California 37 (Apr. 2001) (explaining that 68 percent of adult parolees are returned to prison, 55 percent for a parole violation, 13 percent for the commission of a new felony offense); J. Petersilia, Challenges of Prisoner Reentry and Parole in California, 12 California Policy Research Center Brief, p. 2 (June 2000), available at http:// www.ucop.edu/cprc/parole.pdf (as visited June 15, 2006, and available in Clerk of Court’s case file) (“70% of the state’s paroled felons reoffend within 18 months — the highest recidivism rate in the nation”). This Court has acknowledged the grave safety concerns that attend recidivism. See Ewing v. California, 538 U. S. 11, 26 (2003) (plurality opinion) (“Recidivism is a serious public safety concern in California and throughout the Nation”). As we made clear in Knights, the Fourth Amendment does not render the States powerless to address these concerns effectively. See 534 U. S., at 121. Contrary to petitioner’s contention, California’s ability to conduct suspicion-less searches of parolees serves its interest in reducing recidivism, in a manner that aids, rather than hinders, the reintegration of parolees into productive society. In California, an eligible inmate serving a determinate sentence may elect parole when the actual days he has served plus statutory time credits equal the term imposed by the trial court, Cal. Penal Code Ann. §§ 2931,2933, 3000(b)(1) (West 2000), irrespective of whether the inmate is capable of integrating himself back into productive society. As the recidivism rate demonstrates, most parolees are ill prepared to handle the pressures of reintegration. Thus, most parolees require intense supervision. The California Legislature has concluded that, given the number of inmates the State paroles and its high recidivism rate, a requirement that searches be based on individualized suspicion would undermine the State’s ability to effectively supervise parolees and protect the public from criminal acts by reoffenders. This conclusion makes eminent sense. Imposing a reasonable suspicion requirement, as urged by petitioner, would give parolees greater opportunity to anticipate searches and conceal criminality. See Knights, supra, at 120; Griffin, 483 U. S., at 879. This Court concluded that the incentive-to-conceal concern justified an “intensive” system for supervising probationers in Griffin, id., at 875. That concern applies with even greater force to a system of supervising parolees. See United States v. Reyes, 283 F. 3d, at 461 (observing that the Griffin rationale “applies] a fortiori” to “federal supervised release, which, in contrast to probation, is ‘meted out in addition to, not in lieu of, incarceration’ ”); United States v. Crawford, 372 F. 3d 1048, 1077 (CA9 2004) (Kleinfeld, J., concurring) (explaining that parolees, in contrast to probationers, “have been sentenced to prison for felonies and released before the end of their prison terms” and are “deemed to have acted more harmfully than anyone except those felons not released on parole”); Hudson, 468 U. S., at 529 (observing that it would be “naive” to institute a system of “ ‘planned random searches’ ” as that would allow prisoners to “anticipate” searches, thus defeating the purpose of random searches). Petitioner observes that the majority of States and the Federal Government have been able to further similar interests in reducing recidivism and promoting reintegration, despite having systems that permit parolee searches based upon some level of suspicion. Thus, petitioner contends, California’s system is constitutionally defective by comparison. Petitioner’s reliance on the practices of jurisdictions other than California, however, is misplaced. That some States and the Federal Government require a level of individualized suspicion is of little relevance to our determination whether California’s supervisory system is drawn to meet its needs and is reasonable, taking into account a parolee’s substantially diminished expectation of privacy. Nor is there merit to the argument that California’s parole search law permits “a blanket grant of discretion untethered by any procedural safeguards,” post, at 857 (Stevens, J., dissenting). The concern that California’s suspicionless search system gives officers unbridled discretion to conduct searches, thereby inflicting dignitary harms that arouse strong resentment in parolees and undermine their ability to reintegrate into productive society, is belied by California’s prohibition on “arbitrary, capricious or harassing” searches. See Reyes, 19 Cal. 4th, at 752, 753-754, 968 P. 2d, at 450, 451; People v. Bravo, 43 Cal. 3d 600, 610, 738 P. 2d 336, 342 (1987) (probation); see also Cal. Penal Code Ann. § 3067(d) (West 2000) (“It is not the intent of the Legislature to authorize law enforcement officers to conduct searches for the sole purpose of harassment”). The dissent’s claim that parolees under California law are subject to capricious searches conducted at the unchecked “whim” of law enforcement officers, post, at 858-859, 860, ignores this prohibition. Likewise, petitioner’s concern that California’s suspicionless search law frustrates reintegration efforts by permitting intrusions into the privacy interests of third parties is also unavailing because that concern would arise under a suspicion-based regime as well. IV Thus, we conclude that the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee. Accordingly, we affirm the judgment of the California Court of Appeal. It is so ordered. Knights, 534 U. S., at 120, n. 6 (“We do not decide whether the probation condition so diminished, or completely eliminated, Knights’ reasonable expectation of privacy . . . that a search by a law enforcement officer without any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment”). Contrary to the dissent’s contention, nothing in our recognition that parolees are more akin to prisoners than probationers is inconsistent with our precedents. Nor, as the dissent suggests, do we equate parolees with prisoners for the purpose of concluding that parolees, like prisoners, have rio Fourth Amendment rights. See post, at 861 (opinion of Stevens, J.). That view misperceives our holding. If that were the basis of our holding, then this case would have been resolved solely under Hudson v. Palmer, 468 U. S. 517 (1984), and there would have been no cause to resort to Fourth Amendment analysis. See ibid, (holding traditional Fourth Amendment analysis of the totality of the circumstances inapplicable to the question whether a prisoner had a reasonable expectation of privacy in his prison cell). Nor is our rationale inconsistent with Morrissey v. Brewer, 408 U. S. 471, 482 (1972). In that case, the Court recognized that restrictions on a parolee’s liberty are not unqualified. That statement, even if accepted as a truism, sheds no light on the extent to which a parolee’s constitutional rights are indeed limited — and no one argues that a parolee’s constitutional rights are not limited. Morrissey itself does not cast doubt on today’s holding given that the liberty at issue in that ease— the Fourteenth Amendment Due Process right to a hearing before revocation of parole — invokes wholly different analysis than the search at issue here. Because we find that the search at issue here is reasonable under our general Fourth Amendment approach, we need not reach the issue whether “acceptance of the search condition constituted consent in the Schneckloth [v. Bustamonte, 412 U. S. 218 (1973),] sense of a complete waiver of his Fourth Amendment rights.” United States v. Knights, 534 U. S. 112, 118 (2001). The California Supreme Court has not yet construed Cal. Penal Code Ann. §3067 (West 2000), the statute which governs parole for crimes committed after 1996, and which imposes the consent requirement. The California Court of Appeal has, and it has concluded that, under § 3067(b), “inmates who are otherwise eligible for parole yet refuse to agree to the mandatory search condition will remain imprisoned ... until either (1) the inmate agrees to the search condition and is otherwise eligible for parole, or (2) has lost all worktime credits and is eligible for release after having served the balance of his/her sentence.” People v. Middleton, 131 Cal. App. 4th 732, 739-740, 31 Cal. Rptr. 3d 813, 818 (2005). Nonetheless, we decline to rest our holding today on the consent rationale. The California Supreme Court, we note, has not yet had a chance to address the question squarely, and it is far from clear that the State properly raised its consent theory in the courts below. Nor do we address whether California’s parole search condition is justified as a special need under Griffin v. Wisconsin, 483 U. S. 868 (1987), because our holding under general Fourth Amendment principles renders such an examination unnecessary. The dissent argues that, “once one acknowledges that parolees do have legitimate expectations of privacy beyond those of prisoners, our Fourth Amendment jurisprudence does not permit the conclusion, reached by the Court here for the first time, that a search supported by neither individualized suspicion nor ‘special needs’ is nonetheless ‘reasonable.’” Post, at 858. That simply is not the case. The touchstone of the Fourth Amendment is reasonableness, not individualized suspicion. Thus, while this Court’s jurisprudence has often recognized that “to accommodate public and private interests some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure,” United States v. Martinez-Fuerte, 428 U. S. 543, 560 (1976), we have also recognized that the “Fourth Amendment imposes no irreducible requirement of such suspicion,” id., at 561. Therefore, although this Court has only sanctioned suspieionless searches in limited circumstances, namely, programmatic and special needs searches, we have never held that these are the only limited circumstances in which searches absent individualized suspicion could be “reasonable” under the Fourth Amendment. In light of California’s earnest concerns respecting recidivism, public safety, and reintegration of parolees into productive society, and because the object of the Fourth Amendment is reasonableness, our decision today is far from remarkable. Nor, given our prior precedents and caveats, is it “unprecedented.” Post, at 857. Under California precedent, we note, an officer would not act reasonably in conducting a suspicionless search absent knowledge that the person stopped for the search is a parolee. See People v. Sanders, 31 Cal. 4th 318, 331-332, 73 P. 3d 496, 505-506 (2003); Brief for United States as Amicus Curiae 20. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Marshall delivered the opinion of the Court. This case arose from an animal welfare dispute. At issue is the fate of certain monkeys used for medical experiments funded by the Federal Government. The case comes before us, however, on a narrow jurisdictional question: whether a suit filed in state court challenging the treatment of these monkeys was properly removed to the federal court by respondent National Institutes of Health (NIH), one of the defendants. We hold that removal was improper and that the case should be remanded to state court. 1 — I Petitioners, who are organizations and individuals seeking the humane treatment of animals, filed this suit in Louisiana civil district court; the monkeys are housed at a primate research center in that State. Three defendants were named and are respondents here. Respondent Institutes for Behavior Resources (IBR) is a private entity that owns the monkeys. Respondent NIH now maintains custody of the monkeys, with IBR’s consent. Respondent Administrators of the Tulane Educational Fund (Tulane) is the governing body for the primate research center that, in 1986, entered into an agreement with NIH to care for the monkeys. The suit sought to enjoin further experimentation on the monkeys and to obtain custody over them. Petitioners based their claim for this relief upon Louisiana law, including provisions that (1) impose criminal sanctions for cruelty to animals, La. Rev. Stat. Ann. §14:102.1 (1986 and Supp. 1991); (2) permit officers of humane societies to remove, to a “stable,” animals being subjected to cruelty or that are “bruised, wounded, crippled, abrased, sick, or diseased,” La. Rev. Stat. Ann. §3:2431 (1987); (3) authorize tort damages for “[ejvery act whatever of man that causes damage to another,” La. Civ. Code Ann., Art. 2315 (1979 and Supp. 1991); and (4) direct courts to “proceed according to equity” in situations not covered by “legislation or custom,” La. Civ. Code Ann., Art. 4 (Supp. 1991). See App. to Pet. for Cert. A-35 to A-37. Shortly after the suit was filed, NIH removed the case to federal court pursuant to 28 U. S. C. § 1442(a)(1), which authorizes removal of state suits by certain federal defendants. The federal District Court then granted a temporary restraining order barring NIH from carrying out its announced plan to euthanize three of the remaining monkeys and, in the process, to complete some of the medical research by performing surgical procedures. The court extended this order beyond its 10-day limit, see Fed. Rule Civ. Proc. 65(b), and NIH accordingly appealed the court's action under 28 U. S. C. § 1292(a)(1), which permits appellate review of preliminary injunctions. On appeal, NIH argued, inter alia, that petitioners were not entitled to the injunction because they lacked standing to seek protection of the monkeys. Petitioners, in turn, argued that the District Court had no juris~1iction over the case because 28 U. S. C. § 1442(a)(1) permits only federal officials-not federal agencies such as NIH-to remove cases in which they are named as defendants. The Court of Appeals for the Fifth Circuit agreed with NIH that petitioners could not satisfy the requirements under Article III of the United States Constitution for standing. It also held that federal agencies have the power to remove cases under § 1442(a)(1). Accordingly, the Court of Appeals vacated the injunction and dismissed the case. See 895 F. 2d 1056 (CA5 1990). We granted certiorari to resolve a conflict between the Courts of Appeals for the Fifth and Third Circuits on the question whether § 1442(a)(1) permits removal by fedei'al agencies. 498 U. 5. 980 (1990). We conclude that it does not. II We confront at the outset an objection raised by NIH to our jurisdiction over the removal question. NIH argues that, because the Court of Appeals found that petitioners lack Article III standing to seek protection of the monkeys, petitioners also lack standing even to contest the removal of their suit. We beli,eve NIH misconceives both standing doctrine and the scope of the lower court’s standing ruling. Standing does not refer simply to a party’s capacity to appear in court. Rather, standing is gauged by the specific common-law, statutory or constitutional claims that a party presents. “Typically, . . . the standing inquiry requires careful judicial examination of a complaint’s allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted. ” Allen v. Wright, 468 U. S. 737, 752 (1984) (emphasis added). See also Fletcher, The Structure of Standing, 98 Yale L. J. 221, 229 (1988) (standing “should be seen as a question of substantive law, answerable by reference to the statutory and constitutional provision whose protection is invoked”). It is well established that a party may challenge a violation of federal statute in federal court if it has suffered “injury that fairly can be traced to the challenged action of the defendant,” Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S. 26, 41 (1976), and that is “likely to be redressed by the requested relief.” Allen v. Wright, supra, at 751. In the case now before us, petitioners challenge NIH’s conduct as a violation of § 1442(a)(1). Petitioners’ injury is clear, for they have lost the right to sue in Louisiana court — the forum of their choice. This injury “fairly can be traced to the challenged action of defendants,” since it directly results from NIH’s removal of the case. And the injury is “likely to be redressed” if petitioners prevail on their claim because, if removal is found to have been improper under § 1442(a)(1), the federal courts will lose subject matter jurisdiction and the “case shall be remanded.” 28 U. S. C. § 1447(c); see infra, at 87-89. Therefore, petitioners clearly have standing to challenge the removal. Nothing in the Court of Appeals’ decision undermines this conclusion. The court below found that petitioners did not have standing to protest “disruption of their personal relationships with the monkeys,” 895 F. 2d, at 1059, to claim “harm to their ‘aesthetic, conservational and environmental interests,’” id., at 1060, or to act as advocates for the monkeys’ interests, id., at 1061. But at no point did the Court of Appeals suggest that petitioners’ lack of standing to bring these claims interfered with their right to challenge removal. Indeed, it was only after the court rejected petitioners’ standing to protect the monkeys that it considered the question whether NIH’s removal was proper. Id., at 1061-1062. NIH argues that, were we also to consider the propriety of removal, “the Court would be resolving the removal question in a context in which the court below specifically found the injury in fact necessary to [the concrete] adverseness [required for standing] to be lacking.” Brief for Respondent NIH 7, n. 4. We disagree. The “adverseness” necessary to resolving the removal question is supplied not by petitioners’ claims for the monkeys’ protection but rather by petitioners’ desire to prosecute their claims in state court. III A Section 1442(a)(1) permits a defendant in a civil suit filed in state court to remove the action to a federal district court if the defendant is “[a]ny officer of the United States or any agency thereof, or person acting under him, [in a suit challenging] any act under color of such office . . . 28 U. S. C. § 1442(a)(1). The question before us is whether this provision permits agencies to remove. “‘[T]he starting point in every case involving construction of a statute is the language itself.’” Watt v. Alaska, 451 U. S. 259, 265 (1981) (citation omitted). We have little trouble concluding that the statutory language excludes agencies from the removal power. To be sure, the first clause in § 1442(a)(1) contains the words “or anj agency thereof.” IBR argues that those words designate one of two grammatical subjects in § 1442(a)(l)’s opening clause (namely, agencies) and that the clause’s other subject is “[a]ny officer of the United States.” But such a reading is plausible only if this first clause is examined in isolation from the rest of § 1442(a)(1). “We continue to recognize that context is important in the quest for [a] word’s meaning,” United States v. Bishop, 412 U. S. 346, 356 (1973), and that “[statutory construction ... is a holistic endeavor.” United Savings Assn, of Texas v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371 (1988). We find that, when construed in the relevant context, the first clause of § 1442(a)(1) grants removal power to only one grammatical subject, “[a]ny officer,” which is then modified by a compound prepositional phrase: “of the United States or [of] any agency thereof.” Several features of § 1442(a)(1)’s grammar and language support this reading. The first is the statute’s punctuation. Cf. United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241 (1989) (statute’s meaning is “mandated” by its “grammatical structure”). If the drafters of § 1442(a)(1) had intended the phrase “or any agency thereof” to describe a separate category of entities endowed with removal power, they would likely have employed the comma consistently. That is, they would have separated “or any agency thereof” from the language preceding it, in the same way that a comma sets apart the subsequent clause, which grants additional removal power to persons “acting under” federal officers. Absent the comma, the natural reading of the clause is that it permits removal by anyone who is an “officer” either “of the United States” or of one of its agencies. Secondly, the language that follows “[a]ny officer of the United States or any agency thereof” confirms our reading of that clause. The subsequent grant of removal authority to any “person acting under him” makes little sense if the immediately preceding words — which ought to contain the antecedent for “him” — refer to an agency rather than to an individual. Finally, the phrase in § 1442(a)(1) that limits exercise of the removal power to suits in which the federal defendant is challenged for “any act under color of such office” reads very awkwardly if the prior clauses refer not only to persons but to agencies. An agency would not normally be described as exercising authority “under color” of an “office.” In sum, IBR’s interpretation of § 1442(a)(1) simply does not accord with the statute’s language and structure. IBR tries to rescue its argument by invoking the well-established principle that each word in a statute should be given effect. See 2A N. Singer, Sutherland on Statutory Construction §46.06 (C. Sands 4th rev. ed. 1984). IBR contends that any officer of an agency is also an officer of the United States and therefore that the reference to “agency thereof” in § 1442(a)(1) is redundant unless it signifies the agency itself. IBR notes, in support of this contention, that when Congress enacted § 1442(a)(1) it also defined “agency” as “any department, independent establishment, commission, administration, authority, board or bureau of the United States or any corporation in which the United States has a proprietary interest.” 28 U. S. C. §451. Since the words “of the United States” modify all of the entities listed in § 451, IBR concludes that an officer of an agency is necessarily an “officer of the United States.” Brief for Respondent IBR 16-17. We find this argument unpersuasive. IBR’s broad definition of “officer of the United States” may well be favored today. Cf. Buckley v. Valeo, 424 U. S. 1, 126 (1976) (“ ‘[O]ffi-cer of the United States,’ ” as used in Art. II, § 2, cl. 2, refers to any “appointee exercising significant authority pursuant to the laws of the United States”). But there is no evidence that this was the definition Congress had in mind in 1948, when it enacted § 1442(a)(1) and the companion provision defining “agency.” Indeed, in 1948 and for some time thereafter, the relationship between certain independent agencies and the “Government of the United States” was often disputed. See, e. g., Pierce v. United States, 314 U. S. 306 (1941) (holding that an officer or employee of the Tennessee Valley Authority was not “‘an officer or employee acting under the authority of the United States, or any Department, or any officer of the Government thereof’” within the meaning of a criminal statute first enacted in 1884); see also Rainwater v. United States, 356 U. S. 590, 591 (1958) (resolving a conflict among the courts of appeals and finding that a claim against the Commodity Credit Corporation was a claim “‘against the Government of the United States, or any department or officer thereof,’” within the meaning of the False Claims Act); United States v. McNinch, 356 U. S. 595 (1958) (overturning the Fourth Circuit’s decision that the Federal Housing Administration was not covered by the same provisions of the False Claims Act). Given the uncertain status of these independent federal entities, Congress may well have believed that federal courts would not treat every “officer of. . . a[n] agency” as an “officer of the United States.” Thus, the most likely explanation for Congress’ insertion of the “any officer of . . . any agency thereof” language is that Congress sought to eliminate any doubt that officers of the Tennessee Valley Authority and like entities possessed the same removal authority as other “officer[s] of the United States.” See Cannon v. University of Chicago, 441 U. S. 677, 698-699 (1979) (“evaluation of congressional action . . . must take into account its contemporary legal context”). In any event, this reading of the “any agency thereof” language gives full effect to all of § 1442(a)(1)’s terms while avoiding the grammatical and linguistic anomalies produced by IBR’s interpretation. B Respondent NIH finds an alternative basis for agency removal power in the subsequent clause of § 1442(a)(1) that grants removal authority to any “person acting under him.” In NIH’s view, since the word “him” refers to an officer of the United States, an agency would be a “person acting under him” because each agency is administered or directed by such an officer. This is a rather tortured reading of the language. We doubt that, if Congress intended to give removal authority to agencies, it would have expressed this intent so obliquely, referring to agencies merely as entities “acting under” the agency heads. NIH faces an additional hurdle, moreover, in arguing that the word “person” in the phrase “person under him” should refer to an agency. As we have often noted, “in common usage, the term ‘person’ does not include the sovereign, [and] statutes employing the [word] are ordinarily construed to exclude it.” Will v. Michigan Dept. of State Police, 491 U. S. 58, 64 (1989) (citation omitted; internal quotes omitted; brackets in original); see also id., at 73. (Brennan, J., dissenting). This Court has been especially reluctant to read “person” to mean the sovereign where, as here, such a reading is “decidedly awkward.” Id., at 64. Nevertheless, “there is no hard and fast rule of exclusion” of the sovereign, United States v. Cooper Corp., 312 U. S. 600, 604-605 (1941), and our conventional reading of “person” may therefore be disregarded if “[t]he purpose, the subject matter, the context, the legislative history, [or] the executive interpretation of the statute . . . indicate an intent, by the use of the term, to bring state or nation within the scope of the law.” Id., at 605 (footnote omitted). In the present case, NIH argues that Congress’ intent to include federal agencies within the term “person” in § 1442(a)(1) can be inferred from contemporary changes that Congress made in the federal administrative structure. During the 15 years prior to enactment of § 1442(a)(1) in 1948, Congress created several independent agencies that it authorized to “sue and be sued” in their own names in both state and federal courts. In NIH’s view, these selective waivers of sovereign immunity gave Congress a reason to extend the removal authority to include agencies. Thus, NIH argues, the word “person” in the removal statute should be read as referring to such agencies. Although none of these early “sue and be sued” statutes involved major departments of the Federal Government, we agree that those laws could have prompted Congress to change its removal policy. However, we find no persuasive evidence that Congress actually made such a change when it revised the removal statute in 1948. NIH concedes that each of the nine preceding versions of the removal statute, extending as far back as 1815, limited the removal authority to some subset of federal officers. See Brief for Respondent NIH 21-23, and n. 18; see also Willingham v. Morgan, 395 U. S. 402, 405-406 (1969). In revising this removal provision to its present text, the House Committee Report offered only this comment to explain the change: “The revised subsection ... is extended to apply to all officers and employees of the United States or any agency thereof. [The predecessor provision] was limited to revenue officers engaged in the enforcement of the criminal or revenue laws.” H. R. Rep. No. 308, 80th Cong., 1st Sess., A134 (1947). This is the only legislative history on the 1948 revision and, as even NIH admits, it does not express a clear purpose to extend the removal power to agencies. See Brief for Respondent NIH 21. At best, the report language could be described as ambiguous on this point. Thus, the evidence that Congress intended to give agencies removal power is insufficient to overcome both the presumption against designating the sovereign with the word “person” and the awkwardness of referring to an agency as a “person acting under him.” Accord, Mesa v. California, 489 U. S. 121, 136 (1989) (“[section 1442(a) . . . seek[s] to do nothing more than grant district court jurisdiction over cases in which a federal officer is a defendant”). C NIH argues, finally, that even if a literal reading of § 1442(a)(1) would exclude agencies from the removal power, we should reject that construction because it produces absurd results. See, e. g., Public Citizen v. Department of Justice, 491 U. S. 440, 454 (1989) (court can look beyond statutory language when plain meaning would “compel an odd result”). NIH points out that if agencies are denied removal power the removability of the present lawsuit would turn on the mere technicality of whether petitioners named NIH or only individual officers of NIH as defendants. We think Congress could rationally have made such a distinction. As we have already noted, for more than 100 years prior to 1948, Congress expressly limited whatever removal power it conferred upon federal defendants to individual officers. NIH does not suggest that any of these earlier statutes produced absurd results; indeed, it acknowledges that, “[i]n drafting these removal provisions, Congress referred to federal officers because they, and not federal agencies, were the ones being sued in state courts.” Brief for Respondent NIH 23. The reason agencies were not being sued, of course, was that Congress had not consented to such suits and the agencies were therefore shielded by sovereign immunity. See, e. g., Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682, 693 (1949) (“suit to enjoin [federal action] may not be brought unless the sovereign has consented”); S. Breyer & R. Stewart, Administrative Law and Regulatory Policy 1018 (2d ed. 1985) (same). That fact, however, would not have prevented a plaintiff from erroneously naming — as NIH argues that petitioners have erroneously named — an agency as a defendant in state court. The first nine incarnations of the federal officer removal statute clearly reflect Congress’ belief that state courts could be trusted to dismiss the agency as defendant. The determination of an agency’s immunity, in other words, was sufficiently straightforward that a state court, even if hostile to the federal interest, would be unlikely to disregard the law. Thus, agencies would not need the protection of federal removal. By contrast, the question of the immunity of federal officers who were named as defendants was much more complicated. Such immunity hinged on “the crucial question . . . whether the relief sought in a suit nominally addressed to the officer [was] relief against the sovereign.” Larson v. Domestic & Foreign Commerce Corp., 337 U. S., at 687 (footnote omitted). Often this question was resolved by examining whether an officer’s challenged actions exceeded the powers the sovereign had delegated to him. See id., at 689-690. Determining whether a federal officer had acted ultra vires was fraught with difficulty and subject to considerable manipulation. See Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 20 (1963) (“The question always has been which suits against officers will be allowed and which will not be”); id., at 29-39 (discussing seeming inconsistencies in this Court’s resolution of the question); see also Davis, Suing the Government By Falsely Pretending to Sue an Officer, 29 U. Chi. L. Rev. 435 (1962). Given these complexities, we think Congress could rationally decide that individual officers, but not agencies, needed the protection of a federal forum in which to raise their federal defenses. See Willingham v. Morgan, 395 U. S., at 405 (“Obviously, the removal provision was an attempt to protect federal officers from interference by hostile state courts”). The situation in the present case is no different from what would have obtained under the pre-1948 statutes. NIH’s defense in this case is precisely that it is not amenable to suit in state court by reason of sovereign immunity. As noted, there is nothing irrational in Congress’ determination that adjudication of that defense may be safely entrusted to a state judge. The only question remaining, then, is whether the distinction Congress initially drew between agencies and officers continued to be rational in 1948, when Congress revised the removal statute. Although by then Congress had waived the immunity to suit of several independent agencies, see supra, at 83, and n. 6, we find no fatal inconsistency in Congress’ determination that these few agencies’ other federal defenses (i. e., those aside from immunity) could be adjudicated in state courts. A crucial reason for treating federal officers differently remained: because of the manipulable complexities involved in determining their immunity, federal officers needed the protection of a federal forum. See Willingham v. Morgan, supra, at 407 (“[0]ne of the most important reasons for removal is to have the validity of the defense of official immunity tried in a federal court”); see also Arizona v. Manypenny, 451 U. S. 232, 242 (1981). Accordingly, we see no reason to discard our reading of the current removal statute, which excludes agencies from this power. IV Having concluded that NIH lacked authority to remove petitioners’ suit to federal court, we must determine whether the case should be remanded to state court. Section 1447(c) of Title 28 provides that, “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction [over a case removed from state court], the case shall be remanded.” Since the district court had no original jurisdiction over this case, see n. 4, supra, a finding that removal was improper deprives that court of subject matter jurisdiction and obliges a remand under the terms of § 1447(c). See, e. g., Brewer v. Department of Housing and Urban Development, 508 F. Supp. 72, 74 (SD Ohio 1980). Notwithstanding the clear requirements of § 1447(c), NIH asks us to affirm the Court of Appeals’ dismissal of this suit on the ground that a remand of petitioners’ claims to Louisiana court would be futile. NIH reasons that it is an indispensable party to the suit and thus that petitioners will be required, on remand, to retain NIH as a defendant (in which case the suit will have to be dismissed, since NIH cannot be sued in state court) or to substitute an NIH official as defendant (who presumably will then remove the case pursuant to § 1442(a)(1)). Alternatively, NIH argues that even if the suit can proceed without an NIH defendant, Tulane will be able to remove the case under § 1442(a)(1) since, in caring for the monkeys, Tulane is a “person acting under” an NIH officer. See Tr. of Oral Arg. 30, 33. Obviously, if any of these events is certain to occur, a remand would be futile. NIH finds authority for a futility exception to the rule of remand in Maine Assn. of Interdependent Neighborhoods v. Commissioner, Maine Dept. of Human Services, 876 F. 2d 1051 (CA1 1989) (hereinafter M. A. I. N.). See Tr. of Oral Arg. 39. We believe NIH’s reliance on M. A. I. N. is misplaced. In that case, the plaintiff in a suit that had been removed under § 1441(b) was found to lack Article III standing. The District Court invoked futility to justify dismissing rather than remanding the case, but the court was overruled by the First Circuit, which did remand the case to state court. Given the factual similarities between M. A. I. N. and the case now before us, we find that the result in M. A. I. N. supports our view that a remand is required here. The purported grounds for the futility of a remand in M. A. I. N. were (1) the plaintiff’s lack of standing, (2) the state Commissioner’s declared intent to remove the case (following remand) in his capacity as a “person acting under” the Secretary of Health and Human Services (HHS), and (3) the ability of the Secretary of HHS (a third-party defendant) also to effect removal, as an “officer of the United States.” The First Circuit concluded that none of these anticipated barriers to suit in state court was sufficiently certain to render a remand futile. To begin with, plaintiff’s lack of Article III standing would not necessarily defeat its standing in state court. Secondly, plaintiff’s suit challenged an action by the state Commissioner that was not necessarily an “act under color of [federal] office,” a prerequisite to the exercise of removal power under § 1442(a)(1). Finally, the First Circuit doubted whether the Secretary of HHS would be an indispensable party in state court. 876 F. 2d, at 1054-1055. Similar uncertainties in the case before us preclude a finding that a remand would be futile. Whether NIH is correct in arguing that either it or one of its officers will be deemed an indispensable party in state court turns on a question of Louisiana law, and we decline to speculate on the proper result. Similarly, whether Tulane will be able to remove the remanded case requires a determination whether it is a “person acting under” the Director of NIH within the meaning of § 1442(a)(1). This mixed question of law and fact should not be resolved in the first instance by this Court, least of all without an appropriate record. We also take note, as did the First Circuit, of “the literal words of § 1447(c), which, on their face, give ... no discretion to dismiss rather than remand an action.” Id., at 1054. The statute declares that, where subject matter jurisdiction is lacking, the removed case “shall be remanded.” 28 U. S. C. § 1447(c) (emphasis added). We therefore reverse the decision of the Court of Appeals and remand the case to the District Court with instructions that the case be remanded to the Civil District Court for the Parish of Orleans, Louisiana. It is so ordered. Justice Scalia took no part in the decision of this case. IBR conducted the original research on these monkeys, testing their ability to regain use of their limbs after certain nerves had been severed. This research was carried out with NIH funds at IBR’s facilities in Silver Spring, Maryland. In 1981, however, Maryland police seized the monkeys and arrested the scientist supervising the research on charges of cruelty to animals in violation of state law. While those charges were pending, a Maryland court gave NIH temporary custody of the monkeys. That arrangement continues to this day, although the State’s charges have been resolved in the scientist’s favor and the Maryland court’s custody order has expired. After the Maryland prosecution had terminated, NIH moved the monkeys to Louisiana. See 895 F. 2d 1056, 1057-1958, and n. 2 (CA5 1990). See Lowell Manufacturing v. Export-Import Bank of the United States, 843 F. 2d 725, 733 (CA3 1988) (only federal officers, not agencies, may remove cases under § 1442(a)(1)). The question whether the Court of Appeals erred in applying Article Ill’s standing requirements to these claims is not before us. See n. 4, infra. Nor does the Court of Appeals’ decision that petitioners lack Article III standing to protect the monkeys render the dispute surrounding NIH’s removal moot. If removal was improper, the case must be remanded to state court, where the requirements of Article III plainly will not apply. Our grant of certiorari did not extend to the Court of Appeals’ determination that petitioners lacked standing to protect the monkeys. We therefore leave open the question whether a federal court in a § 1442(a)(1) removal case may require plaintiffs to meet Article Ill’s standing requirements with respect to the state-law claims over which the federal court exercises pendent jurisdiction. See Mesa v. California, 489 U. S. 121, 136 (1989) (basis for removal jurisdiction under § 1442(a)(1) is the federal officer’s substantive defense that “arises under” federal law). See also Arizona v. Manypenny, 451 U. S. 232, 242 (1981) (“[Invocation of removal jurisdiction by a federal officer ... is a purely derivative form of jurisdiction, neither enlarging nor contracting the rights of the parties” (footnote omitted)); id., at 242, n. 17 (“This principle of derivative jurisdiction is instructive where, as here, relevant state-court jurisdiction is found to exist and the question is whether the federal court in effect loses such jurisdiction as a result of removal”). Section 1442(a) reads in pertinent part: “(a) A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: “(1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.” Agencies that could sue and be sued in state court included the Federal Crop Insurance Corporation, 52 Stat. 72, 73 (1938); the Farmers Home Corporation, 50 Stat. 522, 527 (1937); and the Reconstruction Finance Corporation, 47 Stat. 5, 6 (1932). We disregard NIH's other defense that petitioners lack Article III standing. That defense could not be raised in state court, and thus the removal statute is not concerned with its protection. Cf. Mesa v. California, 489 U. S. 121 (1989). See, e. g., FHA v. Burr, 309 U. S. 242, 245 (1940) (agencies authorized to “sue and be sued” are presumed to have fully waived immunity unless, as to particular types of suits, there is clearly a contrary legislative intent). Because the case in M. A. I. N. was removed to federal court pursuant to § 1441(b) (original jurisdiction removal) rather than § 1442(a)(1) (federal officer removal), the application of constitutional standing requirements was appropriate. Cf. n. 4, supra. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

I

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice White delivered the opinion of the Court. Petitioners Kenneth Felis and R. Foster Winans were convicted of violating § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U. S. C. §78j(b), and Rule 10b-5, 17 CFR §240.10b-5 (1987). United States v. Winans, 612 F. Supp. 827 (SDNY 1985). They were also found guilty of violating the federal mail and wire fraud statutes, 18 U. S. C. §§ 1341, 1343, and were convicted for conspiracy under 18 U. S. C. §371. Petitioner David Carpenter, Winans’ roommate, was convicted for aiding and abetting. With a minor exception, the Court of Appeals for the Second Circuit affirmed, 791 F. 2d 1024 (1986); we granted certiorari, 479 U. S. 1016 (1986). I In 1981, Winans became a reporter for the Wall Street Journal (the Journal) and in the summer of 1982 became one of the two writers of a daily column, “Heard on the Street.” That column discussed selected stocks or groups of stocks, giving positive and negative information about those stocks and taking “a point of view with respect to investment in the stocks that it reviews.” 612 F. Supp., at 830. Winans regularly interviewed corporate executives to put together interesting perspectives on the stocks that would be highlighted in upcoming columns, but, at least for the columns at issue here, none contained corporate inside information or any “hold for release” information. Id., at 830, n. 2. Because of the “Heard” column’s perceived quality and integrity, it had the potential of affecting the price of the stocks which it examined. The District Court concluded on the basis of testimony presented at trial that the “Heard” column “does have an impact on the market, difficult though it may be to quantify in any particular case.” Id., at 830. The official policy and practice at the Journal was that prior to publication, the contents of the column were the Journal’s confidential information. Despite the rule, with which Winans was familiar, he entered into a scheme in October 1983 with Peter Brant and petitioner Felis, both connected with the Kidder Peabody brokerage firm in New York City, to give them advance information as to the timing and contents of the “Heard” column. This permitted Brant and Felis and another conspirator, David Clark, a client of Brant, to buy or sell based on the probable impact of the column on the market. Profits were to be shared. The conspirators agreed that the scheme would not affect the journalistic purity of the “Heard” column, and the District Court did not find that the contents of any of the articles were altered to further the profit potential of petitioners’ stock-trading scheme. Id., at 832, 834-835. Over a 4-month period, the brokers made prepublication trades on the basis of information given them by Winans about the contents of some 27 “Heard” columns. The net profits from these trades were about $690,000. In November 1983, correlations between the “Heard” articles and trading in the Clark and Felis accounts were noted at Kidder Peabody and inquiries began. Brant and Felis denied knowing anyone at the Journal and took steps to conceal the trades. Later, the Securities and Exchange Commission began an investigation. Questions were met by denials both by the brokers at Kidder Peabody and by Winans at the Journal. As the investigation progressed, the conspirators quarreled, and on March 29, 1984, Winans and Carpenter went to the SEC and revealed the entire scheme. This indictment and a bench trial followed. Brant, who had pleaded guilty under a plea agreement, was a witness for the Government. The District Court found, and the Court of Appeals agreed, that Winans had knowingly breached a duty of confidentiality by misappropriating prepublication information regarding the timing and contents of the “Heard” column, information that had been gained in the course of his employment under the understanding that it would not be revealed in advance of publication and that if it were, he would report it to his employer. It was this appropriation of confidential information that underlay both the securities laws and mail and wire fraud counts. With respect to the § 10(b) charges, the courts below held that the deliberate breach of Winans’ duty of confidentiality and concealment of the scheme was a fraud and deceit on the Journal. Although the victim of the fraud, the Journal, was not a buyer or seller of the stocks traded in or otherwise a market participant, the fraud was nevertheless considered to be “in connection with” a purchase or sale of securities within the meaning of the statute and the rule. The courts reasoned that the scheme’s sole purpose was to buy and sell securities at a profit based on advance information of the column’s contents. The courts below rejected petitioners’ submission, which is one of the two questions presented here, that criminal liability could not be imposed on petitioners under Rule 10b-5 because “the newspaper is the only alleged victim of fraud and has no interest in the securities traded.” In affirming the mail and wire fraud convictions, the Court of Appeals ruled that Winans had fraudulently misappropriated “property” within the meaning of the mail and wire fraud statutes and that its revelation had harmed the Journal. It was held as well that the use of the mail and wire services had a sufficient nexus with the scheme to satisfy §§1341 and 1343. The petition for certiorari challenged these conclusions. The Court is evenly divided with respect to the convictions under the securities laws and for that reason affirms the judgment below on those counts. For the reasons that follow, we also affirm the judgment with respect to the mail and wire fraud convictions. II Petitioners assert that their activities were not a scheme to defraud the Journal within the meaning of the mail and wire fraud statutes; and that in any event, they did not obtain any “money or property” from the Journal, which is a necessary element of the crime under our decision last Term in McNally v. United States, 483 U. S. 350 (1987). We are unpersuaded by either submission and address the latter first. We held in McNally that the mail fraud statute does not reach “schemes to defraud citizens of their intangible rights to honest and impartial government,” id., at 355, and that the statute is “limited in scope to the protection of property rights.” Id., at 360. Petitioners argue that the Journal’s interest in prepublication confidentiality for the “Heard” columns is no more than an intangible consideration outside the reach of § 1341; nor does that law, it is urged, protect against mere injury to reputation. This is not a case like McNally, however. The Journal, as Winans’ employer, was defrauded of much more than its contractual right to his honest and faithful service, an interest too ethereal in itself to fall within the protection of the mail fraud statute, which “had its origin in the desire to protect individual property rights.” Mc-Nally, supra, at 359, n. 8. Here, the object of the scheme was to take the Journal’s confidential business information— the publication schedule and contents of the “Heard” column — and its intangible nature does not make it any less “property” protected by the mail and wire fraud statutes. McNally did not limit the scope of § 1341 to tangible as distinguished from intangible property rights. Both courts below expressly referred to the Journal’s interest in the confidentiality of the contents and timing of the “Heard” column as a property right, 791 F. 2d, at 1034-1035; 612 F. Supp., at 846, and we agree with that conclusion. Confidential business information has long been recognized as property. See Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1001-1004 (1984); Dirks v. SEC, 463 U. S. 646, 653, n. 10 (1983); Board of Trade of Chicago v. Christie Grain & Stock Co., 198 U. S. 236, 250-251 (1905); cf. 5 U. S. C. § 552(b)(4). “Confidential information acquired or compiled by a corporation in the course and conduct of its business is a species of property to which the corporation has the exclusive right and benefit, and which a court of equity will protect through the injunctive process or other appropriate remedy.” 3 W. Fletcher, Cyclopedia of Law of Private Corporations §857.1, p. 260 (rev. ed. 1986) (footnote omitted). The Journal had a property right in keeping confidential and making exclusive use, prior to publication, of the schedule and contents of the “Heard” column. Christie Grain, supra. As the Court has observed before: “[N]ews matter, however little susceptible of ownership or dominion in the absolute sense, is stock in trade, to be gathered at the cost of enterprise, organization, skill, labor, and money, and to be distributed and sold to those who will pay money for it, as for any other merchandise.” International News Service v. Associated Press, 248 U. S. 215, 236 (1918). Petitioners’ arguments that they did not interfere with the Journal’s use of the information or did not publicize it and deprive the Journal of the first public use of it, see Reply Brief for Petitioners 6, miss the point. The confidential information was generated from the business, and the business had a right to decide how to use it prior to disclosing it to the public. Petitioners cannot successfully contend based on Associated Press that a scheme to defraud requires a monetary loss, such as giving the information to a competitor; it is sufficient that the Journal has been deprived of its right to exclusive use of the information, for exclusivity is an important aspect of confidential business information and most private property for that matter. We cannot accept petitioners’ further argument that Winans’ conduct in revealing prepublication information was no more than a violation of workplace rules and did not amount to fraudulent activity that is proscribed by the mail fraud statute. Sections 1341 and 1343 reach any scheme to deprive another of money or property by means of false or fraudulent pretenses, representations, or promises. As we observed last Term in McNally, the words “to defraud” in the mail fraud statute have the “common understanding” of “ ‘wronging one in his property rights by dishonest methods or schemes,’ and ‘usually signify the deprivation of something of value by trick, deceit, chicane or overreaching.’” 483 U. S., at 358 (quoting Hammerschmidt v. United States, 265 U. S. 182, 188 (1924)). The concept of “fraud” includes the act of embezzlement, which is “ ‘the fraudulent appropriation to one’s own use of the money or goods entrusted to one’s care by another.’” Grin v. Shine, 187 U. S. 181, 189 (1902). The District Court found that Winans’ undertaking at the Journal was not to reveal prepublication information about his column, a promise that became a sham when in violation of his duty he passed along to his co-conspirators confidential information belonging to the Journal, pursuant to an ongoing scheme to share profits from trading in anticipation of the “Heard” column’s impact on the stock market. In Snepp v. United States, 444 U. S. 507, 515, n. 11 (1980) (per curiam), although a decision grounded in the provisions of a written trust agreement prohibiting the unapproved use of confidential Government information, we noted the similar prohibitions of the common law, that “even in the absence of a written contract, an employee has a fiduciary obligation to protect confidential information obtained during the course of his employment.” As the New York courts have recognized: “It is well established, as a general proposition, that a person who acquires special knowledge or information by virtue of a confidential or fiduciary relationship with another is not free to exploit that knowledge or information for his own personal benefit but must account to his principal for any profits derived therefrom.” Diamond v. Oreamuno, 24 N. Y. 2d 494, 497, 248 N. E. 2d 910, 912 (1969); see also Restatement (Second) of Agency §§388, Comment c, 396(c) (1958). We have little trouble in holding that the conspiracy here to trade on the Journal’s confidential information is not outside the reach of the mail and wire fraud statutes, provided the other elements of the offenses are satisfied. The Journal’s business information that it intended to be kept confidential was its property; the declaration to that effect in the employee manual merely removed any doubts on that score and made the finding of specific intent to defraud that much easier. Winans continued in the employ of the Journal, appropriating its confidential business information for his own use, all the while pretending to perform his duty of safeguarding it. In fact, he told his editors twice about leaks of confidential information not related to the stock-trading scheme, 612 F. Supp., at 831, demonstrating both his knowledge that the Journal viewed information concerning the “Heard” column as confidential and his deceit as he played the role of a loyal employee. Furthermore, the District Court’s conclusion that each of the petitioners acted with the required specific intent to defraud is strongly supported by the evidence. Id., at 847-850. Lastly, we reject the submission that using the wires and the mail to print and send the Journal to its customers did not satisfy the requirement that those mediums be used to execute the scheme at issue. The courts below were quite right in observing that circulation of the “Heard” column was not only anticipated but an essential part of the scheme. Had the column not been made available to Journal customers, there would have been no effect on stock prices and no likelihood of profiting from the information leaked by Winans. The judgment below is Affirmed. Section 10(b) provides: “It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange— “(b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [Securities and Exchange] Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.” Rule 10b-5 provides: “It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any national securities exchange, “(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, in the light of the circumstances under which they were 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.” Section 1341 provides: “Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.” Section 1343 provides: “Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $1,000 or imprisoned not more than five years, or both.” Section 371 provides: “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.” The mail and wire fraud statutes share the same language in relevant part, and accordingly we apply the same analysis to both sets of offenses here. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Per Curiam. The motions to affirm are granted and the judgment is affirmed. Mr. Justice Harlan, for reasons contained in his memorandum of March 4, 1968 (390 U. S. 932, sub nom. Branigin v. Grills), in which he acquiesced in the denial of stays of enforcement of the District Court’s judgment, also acquiesces in the Court’s affirmance of that judgment. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Ginsburg delivered the opinion of the Court. This case concerns the adjudicatory authority of tribal courts over personal injury actions against defendants who are not tribal members. Specifically, we confront this question: When an accident occurs on a portion of a public highway maintained by the State under a federally granted right-of-way over Indian reservation land, may tribal courts entertain a civil action against an allegedly negligent driver and the driver’s employer, neither of whom is a member of the tribe? Such cases, we hold, fall within state or federal regulatory and adjudicatory governance; tribal courts may not entertain claims against nonmembers arising out of accidents on state highways, absent a statute or treaty authorizing the tribe to govern the conduct of nonmembers on the highway in question. We express no view on the governing law or proper forum when an accident occurs on a tribal road within a reservation. I In November 1990, petitioner Gisela Fredericks and respondent Lyle Stockert were involved in a traffic accident on a portion of a North Dakota state highway running through the Fort Berthold Indian Reservation. The highway strip crossing the reservation is a 6.59-mile stretch of road, open to the public, affording access to a federal water resource project. North Dakota maintains the road under a right-of-way granted by the United States to the State’s Highway Department; the right-of-way lies on land held by the United States in trust for the Three Affiliated Tribes (Mandan, Hidatsa, and Arikara) and their members. The accident occurred when Fredericks’ automobile collided with a gravel truck driven by Stockert and owned by respondent A-l Contractors, Stockert’s employer. A-l Contractors, a non-Indian-owned enterprise with its principal place of business outside the reservation, was at the time under a subcontract with LCM Corporation, a corporation wholly owned by the Tribes, to do landscaping work related to the construction of a tribal community building. A-l Contractors performed all work under the subcontract within the boundaries of the reservation. The record does not show whether Stockert was engaged in subcontract work at the time of the accident. Neither Stockert nor Freder-icks is a member of the Three Affiliated Tribes or an Indian. Fredericks, however, is the widow of a deceased member of the Tribes and has five adult children who are tribal members. Fredericks sustained serious injuries in the accident and was hospitalized for 24 days. In May 1991, she sued respondents A-l Contractors and Stockert, as well as A-l Contractors’ insurer, in the Tribal Court for the Three Affiliated Tribes of the Fort Berthold Reservation. In the same lawsuit, Fredericks’ five adult children filed a loss-of-consortium claim. Together, Fredericks and her children sought damages exceeding $13 million. App. 8-10. Respondents and the insurer made a special appearance in the Tribal Court to contest that court’s personal and subject-matter jurisdiction. The Tribal Court ruled that it had authority to adjudicate Gisela Fredericks’ case, and therefore denied respondents’ motion to dismiss the action. Id., at 24-25. Respondents appealed the Tribal Court’s jurisdictional ruling to the Northern Plains Intertribal Court of Appeals, which affirmed. Id., at 36. Thereafter, pursuant to the parties’ stipulation, the Tribal Court dismissed the insurer from the suit. See id., at 38-40. Before Tribal Court proceedings resumed, respondents commenced this action in the United States District Court for the District of North Dakota. Naming as defendants Fredericks, her adult children, the Tribal Court, and Tribal Judge William Strate, respondents sought a declaratory judgment that, as a matter of federal law, the Tribal Court lacked jurisdiction to adjudicate Fredericks’ claims. The respondents also sought an injunction against further proceedings in the Tribal Court. See id., at 41-45. Relying particularly on this Court’s decisions in National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S. 845 (1985), and Iowa Mut. Ins. Co. v. LaPlante, 480 U. S. 9 (1987), the District Court determined that the Tribal Court had civil jurisdiction over Fredericks’ complaint against A-l Contractors and Stockert; accordingly, on cross-motions for summary judgment, the District Court dismissed the action. App. 54-67. On appeal, a divided panel of the United States Court of Appeals for.the Eighth Circuit affirmed. App. 68-90. The Eighth Circuit granted rehearing en banc and, in an 8-to-4 decision, reversed the District Court’s judgment. 76 F. 3d 930 (1996). The Court of Appeals concluded that our decision in Montana v. United States, 460 U. S. 544 (1981), was the controlling precedent, and that, under Montana, the Tribal Court lacked subject-matter jurisdiction over the dispute. We granted certiorari, 518 U. S. 1056 (1996), and now affirm. II Our case law establishes that, absent express authorization by federal statute or treaty, tribal jurisdiction over the conduct of nonmembers exists only in limited circumstances. In Oliphant v. Suquamish Tribe, 435 U. S. 191 (1978), the Court held that Indian tribes lack criminal jurisdiction over non-Indians. Montana v. United States, decided three years later, is the pathmarking case concerning tribal civil authority over nonmembers. Montana concerned the authority of the Crow Tribe to regulate hunting and fishing by non-Indians on lands within the Tribe’s reservation owned in fee simple by non-Indians. The Court said in Montana that the restriction on tribal criminal jurisdiction recognized in Oliphant rested on principles that support a more “general proposition.” 450 U. S., at 565. In the main, the Court explained, “the inherent sovereign powers of an Indian tribe” — those powers a tribe enjoys apart from express provision by treaty or statute — “do not extend to the activities of nonmembers of the tribe.” Ibid. The Montana opinion added, however, that in certain circumstances, even where Congress has not expressly authorized it, tribal civil jurisdiction may encompass nonmembers: “To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Id., at 565-566 (citations and footnote omitted). The term “non-Indian fee lands,” as used in this passage and throughout the Montana opinion, refers to reservation land acquired in fee simple by non-Indian owners. See id., at 548. Montana thus described a general rule that, absent a different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation, subject to two exceptions: The first exception relates to nonmembers who enter consensual relationships with the tribe or its members; the second concerns activity that directly affects the tribe’s political integrity, economic security, health, or welfare. The Montana Court recognized that the Crow Tribe retained power to limit or forbid hunting or fishing by nonmembers on land still owned by or held in trust for the Tribe. Id., at 557. The Court held, however, that-the Tribe lacked authority to regulate hunting and fishing by non-Indians on land within the Tribe’s reservation owned in fee simple by non-Indians. Id., at 564-567. Petitioners and the United States as amicus curiae urge that Montana does not control this case. They maintain that the guiding precedents are National Farmers and Iowa Mutual, and that those decisions establish a rule converse to Montana’s. Whatever Montana may instruct regarding regulatory authority, they insist, tribal courts retain adjudicatory authority in disputes over occurrences inside a reservation, even when the episode-in-suit involves nonmembers, unless a treaty or federal statute directs otherwise. Petitioners, further supported by the United States, argue, alternately, that Montana does not cover lands owned by, or held in trust for, a tribe or its members. Montana holds sway, petitioners say, only with respect to alienated reservation land owned in fee simple by non-Indians. We address these arguments in turn. A We begin with petitioners’ contention that National Farmers and Iowa Mutual broadly confirm tribal-court civil jurisdiction over claims against nonmembers arising from occurrences on any land within a reservation. We read our precedent differently. National Farmers and Iowa Mutual, we conclude, are not at odds with, and do not displace, Montana. Both decisions describe an exhaustion rule allowing tribal courts initially to respond to an invocation of their jurisdiction; neither establishes tribal-court adjudicatory authority, even over the lawsuits involved in those cases. Accord, Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408, 427, n. 10 (1989) (opinion of White, J.). National Farmers involved a federal-court challenge to a tribal court’s jurisdiction over a personal injury action initiated on behalf of a Crow Indian minor against a Montana school district. The accident-in-suit occurred when the minor was struck by a motorcycle in an elementary school parking lot. The school occupied land owned by the State within the Crow Indian Reservation. See 471 U. S., at 847. The school district and its insurer sought a federal-court injunction to stop proceedings in the Crow Tribal Court. See id., at 848. The District Court granted the injunction, but the Court of Appeals reversed, concluding that federal courts lacked subject-matter jurisdiction to entertain such a case. See id., at 848-849. We reversed the Court of Appeals’ judgment and held that federal courts have authority to determine, as a matter “arising under” federal law, see 28 U. S. C.. § 1331, whether a tribal court has exceeded the limits of its jurisdiction. See 471 U. S., at 852-853. We further held, however, that the federal suit was premature. Ordinarily, we explained, a federal court should stay its hand “until after the Tribal Court has had a full opportunity to determine its own jurisdiction.” Id., at 857. Finding no cause for immediate federal-court intervention, we remanded the case, leaving initially to the District Court the question “[w]hether the federal action should be dismissed, or merely held in abeyance pending... further Tribal Court proceedings.” Ibid. Petitioners underscore the principal reason we gave in National Farmers for the exhaustion requirement there stated. Tribal-court jurisdiction over non-Indians in criminal cases is categorically restricted under Oliphant, we observed, while in civil matters “the existence and extent of a tribal court’s jurisdiction will require a careful examination of tribal sovereignty, the extent to which that sovereignty has been altered, divested, or diminished, as well as a detailed study of relevant statutes, Executive Branch policy as embodied in treaties and elsewhere, and administrative or judicial decisions.” 471 U. S., at 855-856 (footnote omitted). The Court’s recognition in National Farmers that tribal courts have more extensive jurisdiction in civil cases than in criminal proceedings, and of the need to inspect relevant statutes, treaties, and other materials, does not limit Montana’s instruction. As the Court made plain in Montana, the general rule and exceptions there announced govern only in the absence of a delegation of tribal authority by treaty or statute. In Montana itself, the Court examined the treaties and legislation relied upon by the Tribe and explained why those measures did not aid the Tribe’s case. See 450 U. S., at 557-563. Only after and in light of that examination did the Court address the Tribe’s assertion of “inherent sovereignty,” and formulate, in response to that assertion, Montana’s general rule and exceptions to it. In sum, we do not extract from National Farmers anything more than a prudential exhaustion rule, in deference to the capacity of tribal courts “to explain to the parties the precise basis for accepting [or rejecting] jurisdiction.” 471 U. S., at 857. Iowa Mutual involved an accident in which a member of the Blackfeet Indian Tribe was injured while driving a cattle truck within the boundaries of the reservation. 480 U. S., at 11. The injured member was employed by a Montana corporation that operated a ranch on reservation land owned by Blackfeet Indians residing on the reservation. See ibid. The driver and his wife, also a Tribe member, sued in the Blackfeet Tribal Court, naming several defendants: the Montana corporation that employed the driver; the individual owners of the ranch; the insurer of the ranch; and an independent insurance adjuster representing the insurer. See ibid. Over the objection of the insurer and the insurance adjuster — both companies not owned by members of the Tribe — the Tribal Court determined that it had jurisdiction to adjudicate the case. See id., at 12. Thereafter, the insurer commenced a federal-court action against the driver, his wife, the Montana corporation, and the ranch owners. See ibid. Invoking federal jurisdiction based on the parties’ diverse citizenship, see 28 U. S. C. § 1332, the insurer alleged that it had no duty to defend or indemnify the Montana corporation or the ranch owners because the injuries asserted by the driver and his wife fell outside the coverage of the applicable insurance policies. See 480 U. S., at 12-13. The Federal District Court dismissed the insurer’s action for lack of subject-matter jurisdiction, and the Court of Appeals affirmed. See id., at 13-14. We reversed. Holding that the District Court had diversity-of-citizenship jurisdiction over the insurer’s complaint, we remanded, as in National Farmers, for a determination whether “the federal action should be stayed pending further Tribal Court proceedings or dismissed.” 480 U. S., at 20, n. 14. The Court recognized in Iowa Mutual that the exhaustion rule stated in National Farmers was “prudential,” not jurisdictional. 480 U. S., at 20, n. 14; see also id., at 16, n. 8 (stating that “[exhaustion is required as a matter of comity, not as a jurisdictional prerequisite”). Respect for tribal self-government made it appropriate “to give the tribal court a ‘full opportunity to determine its own jurisdiction.’” Id., at 16 (quoting National Farmers, 471 U. S., at 857). That respect, the Court reasoned, was equally in order whether federal-court jurisdiction rested on §1331 (federal question) or on § 1332 (diversity of citizenship). 480 U. S., at 17-18. Elaborating on the point, the Court stated: “Tribal authority over the activities of non-Indians on reservation lands is an important part of tribal sovereignty. See Montana v. United States, 450 U. S. 544, 565-566 (1981); Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134, 152-153 (1980); Fisher v. District Court [of Sixteenth Judicial Dist. of Mont.], 424 U. S. [382,] 387-389 [(1976)]. Civil jurisdiction over such activities presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute.... In the absence of any indication that Congress intended the diversity statute to limit the jurisdiction of the tribal courts, we decline petitioner’s invitation to hold that tribal sovereignty can be impaired in this fashion.” Id., at 18. Petitioners and the United States fasten upon the Court’s statement that “[c]ivil jurisdiction over such activities presumptively lies in the tribal courts.” Read in context, however, this language scarcely supports the view that the Montana rule does not bear on tribal-court adjudicatory authority in cases involving nonmember defendants. The statement stressed by petitioners and the United States was made in refutation of the argument that “Congress intended the diversity statute to limit the jurisdiction of the tribal courts.” 480 U. S., at 18. The statement is preceded by three informative citations. The first citation points to the passage in Montana in which the Court advanced “the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe,” 450 U. S., at 565, with two prime exceptions, id., at 565-566. The case cited second is Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134 (1980), a decision the Montana Court listed as illustrative of the first Montana exception, applicable to “nonmembers who enter consensual relationships with the tribe or its members,” 450 U. S., at 565-566; the Court in Colville acknowledged inherent tribal authority to tax “non-Indians entering the reservation to engage in economic activity,” 447 U. S., at 153. The third case noted in conjunction with the Iowa Mutual statement is Fisher v. District Court of Sixteenth Judicial Dist. of Mont., 424 U. S. 382 (1976) (per curiam), a decision the Montana Court cited in support of the second Montana exception, covering on-reservation activity of nonmembers bearing directly “on the political integrity, the economic security, or the health or welfare of the tribe.” 450 U. S., at 566. The Court held in Fisher that a tribal court had exclusive jurisdiction over an adoption proceeding when all parties were members of the tribe and resided on its reservation. See 424 U. S., at 383, 389. State-court jurisdiction over such matters, the Court said, “plainly would interfere with the powers of self-government conferred upon the... Tribe and exercised through the Tribal Court.” Id., at 387. The Court observed in Fisher that state courts may not exercise jurisdiction over disputes arising out of on-reservation conduct — even over matters involving non-Indians — if doing so would “ ‘infring[e] on the right of reservation Indians to make their own laws and be ruled by them.’ ” Id., at 386 (citation omitted). In light of the citation of Montana, Colville, and Fisher, the Iowa Mutual statement emphasized by petitioners does not limit the Montana rule. In keeping with the precedent to which Iowa Mutual refers, the statement stands for nothing more than the unremarkable proposition that, where tribes possess authority to regulate the activities of nonmembers, “[civil jurisdiction over [disputes arising out of] such activities presumptively lies in the tribal courts.” 480 U. S., at 18. Recognizing that our precedent has been variously interpreted, we reiterate that National Farmers and Iowa Mutual enunciate only an exhaustion requirement, a “prudential rule,” see Iowa Mutual, 480 U. S., at 20, n. 14, based on comity, see id., at 16, n. 8. These decisions do not expand or stand apart from Montana’s instruction on “the inherent sovereign powers of an Indian tribe.” 450 U. S., at 565. While Montana immediately involved regulatory authority, the Court broadly addressed the concept of “inherent sovereignty.” Id., at 563. Regarding activity on non-Indian fee land within a reservation, Montana delineated — in a main rule and exceptions — the bounds of the power tribes retain to exercise “forms of civil jurisdiction over non-Indians.” Id., at 565. As to nonmembers, we hold, a tribe’s adjudicative jurisdiction does not exceed its legislative jurisdiction. Absent congressional direction enlarging tribal-court jurisdiction, we adhere to that understanding. Subject to controlling provisions in treaties and statutes, and the two exceptions identified in Montana, the civil authority of Indian tribes and their courts with respect to non-Indian fee lands generally “do[es] not extend to the activities of nonmembers of the tribe.” Ibid. B We consider next the argument that Montana does not govern this case because the land underlying the scene of the accident is held in trust for the Three Affiliated Tribes and their members. Petitioners and the United States point out that in Montana, as in later eases following Montana’s instruction — Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408 (1989), and South Dakota v. Bourland, 508 U. S. 679 (1993), described supra, at 447, n. 6—the challenged tribal authority related to nonmember activity on alienated, non-Indian reservation land. We “can readily agree,” in accord with Montana, 450 U. S., at 557, that tribes retain considerable control over nonmember conduct on tribal land. On the particular matter before us, however, we agree with respondents: The right-of-way North Dakota acquired for the State’s highway renders the 6.59-mile stretch equivalent, for nonmember governance purposes, to alienated, non-Indian land. Congress authorized grants of rights-of-way over Indian lands in 1948 legislation. Act of Feb. 5, 1948, ch. 45, 62 Stat. 17, 25 U. S. C. §§ 323-328. A grant over land belonging to a tribe requires “consent of the proper tribal officials,” §324, and the payment of just compensation, §325. The grant involved in this case was made, pursuant to the federal statute, in 1970. Its purpose was to facilitate public access to Lake Sakakawea, a federal water resource project under the control of the Army Corps of Engineers. In the granting instrument, the United States conveyed to North Dakota “an easement for a right-of-way for the realignment and improvement of North Dakota State Highway No. 8 over, across and upon [specified] lands.” App. to Brief for Respondents 1. The grant provides that the State’s “easement is subject to any valid existing right or adverse claim and is without limitation as to tenure, so long as said easement shall be actually used for the purpose... specified.” Id., at 3. The granting instrument details only one specific reservation to Indian landowners: “The right is reserved to the Indian land owners, their lessees, successors, and assigns to construct crossings of the right-of-way at all points reasonably necessary to the undisturbed use and occupan[cy] of the premises affected by the right-of-way; such crossings to be constructed and maintained by the owners or lawful occupants and users of said lands at their own risk and said occupants and users to assume full responsibility for avoiding, or repairing any damage to the right-of-way, which may be occasioned by such crossings.” Id., at 3-4. Apart from this specification, the Three Affiliated Tribes expressly reserved no right to exercise dominion or control over the right-of-way. Forming part of the State’s highway, the right-of-way is open to the public, and traffic on it is subject to the State’s control. The Tribes have consented to, and received payment for, the State’s use of the 6.59-mile stretch for a public highway. They have retained no gatekeeping right. So long as the stretch is maintained as part of the State’s highway, the Tribes cannot assert a landowner’s right to occupy and exclude. Cf. Bourland, 508 U. S., at 689 (regarding reservation land acquired by the United States for operation of a dam and a reservoir, Tribe’s loss of “right of absolute and exclusive use and occupation... implies the loss of regulatory jurisdiction over the use of the land by others”). We therefore align the right-of-way, for the purpose at hand, with land alienated to non-Indians. Our decision in Montana, accordingly, governs this case. III Petitioners and the United States refer to no treaty or statute authorizing the Three Affiliated Tribes to entertain highway-accident tort suits of the kind Fredericks commenced against A-l Contractors and Stockert. Rather, petitioners and the United States ground their defense of tribal-court jurisdiction exclusively on the concept of retained or inherent sovereignty. Montana, we have explained, is the controlling decision for this case. To prevail here, petitioners must show that Fredericks’ tribal-court action against nonmembers qualifies under one of Montana’s two exceptions. The first exception to the Montana rule covers “activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” 450 U. S., at 565. The tortious conduct alleged in Fredericks’ complaint does not fit that description. The dispute, as the Court of Appeals said, is “distinctly non-tribal in nature.” 76 F. 3d, at 940. It “arose between two non-Indians involved in' [a] run-of-the-mill [highway] accident.” Ibid. Although A-l was engaged in subcontract work on the Fort Berthold Reservation, and therefore had a “consensual relationship” with the Tribes, “Gisela Fredericks was not a party to the subcontract, and the [TJribes were strangers to the accident.” Ibid. Montana’s list of cases fitting within the first exception, see 450 U. S., at 565-566, indicates the type of activities the Court had in mind: Williams v. Lee, 358 U. S. 217, 223 (1959) (declaring tribal jurisdiction exclusive over lawsuit arising out of on-reservation sales transaction between nonmember plaintiff and member defendants); Morris v. Hitchcock, 194 U. S. 384 (1904) (upholding tribal permit tax on nonmember-owned livestock within boundaries of the Chickasaw Nation); Buster v. Wright, 135 F. 947, 950 (CA8 1905) (upholding Tribe’s permit tax on nonmembers for the privilege of conducting business within Tribe’s borders; court characterized as “inherent” the Tribe’s “authority... to prescribe the terms upon which noncitizens may transact business within its borders”); Colville, 447 U. S., at 152-154 (tribal authority to tax on-reservation cigarette sales to nonmembers “is a fundamental attribute of sovereignty which the tribes retain unless divested of it by federal law or necessary implication of their dependent status”). Measured against these cases, the Fredericks-Stockert highway accident presents no “consensual relationship” of the qualifying kind. The second exception to Montana’s general rule concerns conduct that “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” 450 U. S., at 566. Undoubtedly, those who drive carelessly on a public highway running through a reservation endanger all in the vicinity, and surely jeopardize the safety of tribal members. But if Montana’s second exception requires no more, the exception would severely shrink the rule. Again, cases cited in Montana indicate the character of the tribal interest the Court envisioned. The Court’s statement of Montana’s second exceptional category is followed by citation of four cases, ibid.; each of those cases raised the question whether a State’s (or Territory’s) exercise of authority would trench unduly on tribal self-government. In two of the cases, the Court held that a State’s exercise of authority would so intrude, and in two, the Court saw no impermissible intrusion. The Court referred first to the decision recognizing the exclusive competence of a tribal court over an adoption proceeding when all parties belonged to the Tribe and resided on its reservation. See Fisher, 424 U. S., at 386; supra, at 452-453. Next, the Court listed a decision holding a tribal court exclusively competent to adjudicate a claim by a non-Indian merchant seeking payment from tribe members for goods bought on credit at an on-reservation store. See Williams, 358 U. S., at 220 (“[A]bsent governing Acts of Congress, the question [of state-court jurisdiction over on-reservation conduct] has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.”). Thereafter, the Court referred to two decisions dealing with objections to a county or territorial government’s imposition of a property tax on non-Indian-owned livestock that grazed on reservation land; in neither case did the Court find a significant tribal interest at stake. See Montana Catholic Missions v. Missoula County, 200 U. S. 118, 128-129 (1906) (“the Indians’ interest in this kind of property [livestock], situated on their reservations, was not sufficient to exempt such property, when owned by private individuals, from [state or territorial] taxation”); Thomas v. Gay, 169 U. S. 264, 273 (1898) (“[territorial] tax put upon the cattle of [non-Indian] lessees is too remote and indirect to be deemed a tax upon the lands or privileges of the Indians”). Read in isolation, the Montana rule’s second exception can be misperceived. Key to its proper application, however, is the Court’s preface: “Indian tribes retain their inherent power [to punish tribal offenders,] to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members.... But [a tribe’s inherent power does not reach] beyond what is necessary to protect tribal self-government or to control internal relations.” 450 U. S., at 564. Neither regulatory nor adjudicatory authority over the state highway accident at issue is needed to preserve “the right of reservation Indians to make their own laws and be ruled by them.” Williams, 358 U. S., at 220. The Montana rule, therefore, and not its exceptions, applies to this case. Gisela Fredericks may pursue her case against A-l Contractors and Stockert in the state forum open to all who sustain injuries on North Dakota’s highway. Opening the Tribal Court for her optional use is not necessary to protect tribal self-government; and requiring A-l and Stockert to defend against this commonplace state highway accident claim in an unfamiliar court is not crucial to “the political integrity, the economic security, or the health or welfare of the [Three Affiliated Tribes].” Montana, 450 U. S., at 566. * * * For the reasons stated, the judgment of the Court of Appeals for the Eighth Circuit is Affirmed. Respondents state that the subcontract had forum-selection and choice-of-law provisions selecting Utah state courts and Utah law for dispute resolution. See Brief for Respondents 2. Petitioners do not contest this point, but the subcontract is not part of the record in this ease. The Court of Appeals for the Eighth Circuit stated that petitioner Fredericks resides on the reservation. See 76 F. 3d 930, 932 (1996) (en banc). Respondents assert, however, that there is an unresolved factual dispute regarding Fredericks’ residence at the time of the accident. See Brief for Respondents 1-2, n. 2; Brief in Opposition 3, n. 4. Under our disposition of the case, Fredericks’ residence at the time of the accident is immaterial. Satisfied that it could adjudicate Gisela Fredericks’ claims, the Tribal Court declined to address her adult children’s consortium claim, App. 25; thus, no ruling on that claim is here at issue. Petitioner Fredericks has commenced a similar lawsuit in a North Dakota state court “to protect her rights against the running of the State’s six-year statute of limitations.” Reply Brief 6, n. 2. Respondents assert that they have answered the complaint and “are prepared to proceed in that forum.” Brief for Respondents 8, n. 6. Respondents also note, without contradiction, that the state forum “is physically much closer by road to the accident scene... than [is] the tribal courthouse.” Ibid. In Duro v. Reina, 495 U. S. 676, 684-685 (1990), we held that Indian tribes also lack criminal jurisdiction over nonmember Indians. Shortly after our decision in Duro, Congress provided for tribal criminal jurisdiction over nonmember Indians. See 25 U. S. C. § 1301(2). Montana’s statement of the governing law figured prominently in Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408 (1989), and in South Dakota v. Bourland, 508 U. S. 679 (1993). The Court held in Brendale, 6 to 3, that the Yakima Indian Nation lacked authority to zone nonmembers’ land within an area of the Tribe’s reservation open to the general public; almost half the land in the area was owned in fee by nonmembers. The Court also held, 5 to 4, that the Tribe retained authority to zone fee land in an area of the reservation closed to the general public. No opinion garnered a majority. Justice White, writing for four Members of the Court, concluded that, under Montana, the Tribe lacked authority to zone fee land in both the open and closed areas of the reservation. 492 U. S., at 422-432. Justice Stevens, writing for two Justices, concluded that the Tribe retained zoning authority over nonmember land only in the closed area. Id., at 443-444. Justice Blackmun, writing for three Justices, concluded that, under Montana’s second exception, the Tribe retained authority to zone fee land in both the open and the closed areas. Id., at 456-459. In Bourland, the Court considered whether the Cheyenne River Sioux Tribe could regulate hunting and fishing by non-Indians in an area within the Tribe’s reservation, but acquired by the United States for the operation of a dam and a reservoir. We determined, dominantly, that no treaty or statute reserved to the Tribe regulatory authority over the area, see 508 U. S., at 697, and we left for resolution on remand the question whether either Montana exception applied, see 508 U. S., at 695-696; see also 39 F. 3d 868, 869-870 (CA8 1994) (decision of divided panel on remand that neither Montana exception justified regulation by the Tribe). The Court indicated in National Farmers that exhaustion is not an unyielding requirement: “We do not suggest that exhaustion would be required where an assertion of tribal jurisdiction ‘is motivated by a desire to harass or is conducted in bad faith,’ or where the action is patently violative of express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court’s jurisdiction.” 471 U. S., at 856, n. 21 (citation omitted). Petitioners note in this regard the Court’s unqualified recognition in Montana that “the Tribe may prohibit nonmembers from hunting or fishing on land belonging to the Tribe or held by the United States in trust for the Tribe.” 450 U. S., at 557. The question addressed was “the power of the Tribe to regulate non-Indian fishing and hunting on reservation land owned in fee by nonmembers of the Tribe.” Ibid,.; see Brief for Petitioners 15-16. For contextual treatment of rights-of-way over Indian land, compare 18 U. S. C. § 1151 (defining “Indian country” in criminal law chapter generally to include “rights-of-way running through [a] reservation”) with §§ 1154(e) and 1156 (term “Indian country,” as used in sections on dispensation and possession of intoxicants, “does not include... rights-of-way through Indian reservations”). Rights-of-way granted over lands of individual Indians also require payment of compensation, 25 U. S. C Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice SOTOMAYOR delivered the opinion of the Court. A 5-year statute of limitations applies to any "action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise." 28 U.S.C. § 2462. This case presents the question whether § 2462 applies to claims for disgorgement imposed as a sanction for violating a federal securities law. The Court holds that it does. Disgorgement in the securities-enforcement context is a "penalty" within the meaning of § 2462, and so disgorgement actions must be commenced within five years of the date the claim accrues. I A After rampant abuses in the securities industry led to the 1929 stock market crash and the Great Depression, Congress enacted a series of laws to ensure that "the highest ethical standards prevail in every facet of the securities industry." SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 186-187, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963) (internal quotation marks omitted). The second in the series-the Securities Exchange Act of 1934-established the Securities and Exchange Commission (SEC or Commission) to enforce federal securities laws. Congress granted the Commission power to prescribe " 'rules and regulations ... as necessary or appropriate in the public interest or for the protection of investors.' " Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 728, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975). In addition to rulemaking, Congress vested the Commission with "broad authority to conduct investigations into possible violations of the federal securities laws." SEC v. Jerry T. O'Brien, Inc., 467 U.S. 735, 741, 104 S.Ct. 2720, 81 L.Ed.2d 615 (1984). If an investigation uncovers evidence of wrongdoing, the Commission may initiate enforcement actions in federal district court. Initially, the only statutory remedy available to the SEC in an enforcement action was an injunction barring future violations of securities laws. See 1 T. Hazen, Law of Securities Regulation § 1:37 (7th ed., rev. 2016). In the absence of statutory authorization for monetary remedies, the Commission urged courts to order disgorgement as an exercise of their "inherent equity power to grant relief ancillary to an injunction." SEC v. Texas Gulf Sulphur Co., 312 F.Supp. 77, 91 (S.D.N.Y.1970), aff'd in part and rev'd in part, 446 F.2d 1301 (C.A.2 1971). Generally, disgorgement is a form of "[r]estitution measured by the defendant's wrongful gain." Restatement (Third) of Restitution and Unjust Enrichment § 51, Comment a, p. 204 (2010) (Restatement (Third)). Disgorgement requires that the defendant give up "those gains ... properly attributable to the defendant's interference with the claimant's legally protected rights." Ibid . Beginning in the 1970's, courts ordered disgorgement in SEC enforcement proceedings in order to "deprive ... defendants of their profits in order to remove any monetary reward for violating" securities laws and to "protect the investing public by providing an effective deterrent to future violations." Texas Gulf, 312 F.Supp., at 92. In 1990, as part of the Securities Enforcement Remedies and Penny Stock Reform Act, Congress authorized the Commission to seek monetary civil penalties. 104 Stat. 932, codified at 15 U.S.C. § 77t(d). The Act left the Commission with a full panoply of enforcement tools: It may promulgate rules, investigate violations of those rules and the securities laws generally, and seek monetary penalties and injunctive relief for those violations. In the years since the Act, however, the Commission has continued its practice of seeking disgorgement in enforcement proceedings. This Court has already held that the 5-year statute of limitations set forth in 28 U.S.C. § 2462 applies when the Commission seeks statutory monetary penalties. See Gabelli v. SEC, 568 U.S. 442, 454, 133 S.Ct. 1216, 185 L.Ed.2d 297 (2013). The question here is whether § 2462, which applies to any "action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise," also applies when the SEC seeks disgorgement. B Charles Kokesh owned two investment-adviser firms that provided investment advice to business-development companies. In late 2009, the Commission commenced an enforcement action in Federal District Court alleging that between 1995 and 2009, Kokesh, through his firms, misappropriated $34.9 million from four of those development companies. The Commission further alleged that, in order to conceal the misappropriation, Kokesh caused the filing of false and misleading SEC reports and proxy statements. The Commission sought civil monetary penalties, disgorgement, and an injunction barring Kokesh from violating securities laws in the future. After a 5-day trial, a jury found that Kokesh's actions violated the Investment Company Act of 1940, 15 U.S.C. § 80a-36 ; the Investment Advisers Act of 1940, 15 U.S.C. §§ 80b-5, 80b-6 ; and the Securities Exchange Act of 1934, 15 U.S.C. §§ 78m, 78n. The District Court then turned to the task of imposing penalties sought by the Commission. As to the civil monetary penalties, the District Court determined that § 2462's 5-year limitations period precluded any penalties for misappropriation occurring prior to October 27, 2004-that is, five years prior to the date the Commission filed the complaint. App. to Pet. for Cert. 26a. The court ordered Kokesh to pay a civil penalty of $2,354,593, which represented "the amount of funds that [Kokesh] himself received during the limitations period." Id., at 31a-32a. Regarding the Commission's request for a $34.9 million disgorgement judgment-$29.9 million of which resulted from violations outside the limitations period-the court agreed with the Commission that because disgorgement is not a "penalty" within the meaning of § 2462, no limitations period applied. The court therefore entered a disgorgement judgment in the amount of $34.9 million and ordered Kokesh to pay an additional $18.1 million in prejudgment interest. The Court of Appeals for the Tenth Circuit affirmed. 834 F.3d 1158 (2016). It agreed with the District Court that disgorgement is not a penalty, and further found that disgorgement is not a forfeiture. Id ., at 1164-1167. The court thus concluded that the statute of limitations in § 2462 does not apply to SEC disgorgement claims. This Court granted certiorari, 580 U.S. ----, 137 S.Ct. 810, 196 L.Ed.2d 596 (2017), to resolve disagreement among the Circuits over whether disgorgement claims in SEC proceedings are subject to the 5-year limitations period of § 2462. II Statutes of limitations "se[t] a fixed date when exposure to the specified Government enforcement efforts en[d]." Gabelli, 568 U.S., at 448, 133 S.Ct. 1216. Such limits are " 'vital to the welfare of society' " and rest on the principle that " 'even wrongdoers are entitled to assume that their sins may be forgotten.' " Id., at 449, 133 S.Ct. 1216. The statute of limitations at issue here- 28 U.S.C. § 2462 -finds its roots in a law enacted nearly two centuries ago. 568 U.S., at 445, 133 S.Ct. 1216. In its current form, § 2462 establishes a 5-year limitations period for "an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture." This limitations period applies here if SEC disgorgement qualifies as either a fine, penalty, or forfeiture. We hold that SEC disgorgement constitutes a penalty. A A "penalty" is a "punishment, whether corporal or pecuniary, imposed and enforced by the State, for a crime or offen[s]e against its laws." Huntington v. Attrill, 146 U.S. 657, 667, 13 S.Ct. 224, 36 L.Ed. 1123 (1892). This definition gives rise to two principles. First, whether a sanction represents a penalty turns in part on "whether the wrong sought to be redressed is a wrong to the public, or a wrong to the individual." Id ., at 668, 13 S.Ct. 224. Although statutes creating private causes of action against wrongdoers may appear-or even be labeled-penal, in many cases "neither the liability imposed nor the remedy given is strictly penal." Id ., at 667, 13 S.Ct. 224. This is because "[p]enal laws, strictly and properly, are those imposing punishment for an offense committed against the State." Ibid. Second, a pecuniary sanction operates as a penalty only if it is sought "for the purpose of punishment, and to deter others from offending in like manner"-as opposed to compensating a victim for his loss. Id ., at 668, 13 S.Ct. 224. The Court has applied these principles in construing the term "penalty." In Brady v. Daly, 175 U.S. 148, 20 S.Ct. 62, 44 L.Ed. 109 (1899), for example, a playwright sued a defendant in Federal Circuit Court under a statute providing that copyright infringers " 'shall be liable for damages ... not less than one hundred dollars for the first [act of infringement], and fifty dollars for every subsequent performance, as to the court shall appear to be just.' " Id., at 153, 20 S.Ct. 62. The defendant argued that the Circuit Court lacked jurisdiction on the ground that a separate statute vested district courts with exclusive jurisdiction over actions "to recover a penalty." Id ., at 152, 20 S.Ct. 62. To determine whether the statutory damages represented a penalty, this Court noted first that the statute provided "for a recovery of damages for an act which violates the rights of the plaintiff, and gives the right of action solely to him" rather than the public generally, and second, that "the whole recovery is given to the proprietor, and the statute does not provide for a recovery by any other person." Id ., at 154, 156, 20 S.Ct. 62. By providing a compensatory remedy for a private wrong, the Court held, the statute did not impose a "penalty." Id., at 154, 20 S.Ct. 62. Similarly, in construing the statutory ancestor of § 2462, the Court utilized the same principles. In Meeker v. Lehigh Valley R. Co., 236 U.S. 412, 421-422, 35 S.Ct. 328, 59 L.Ed. 644 (1915), the Interstate Commerce Commission, a now-defunct federal agency charged with regulating railroads, ordered a railroad company to refund and pay damages to a shipping company for excessive shipping rates. The railroad company argued that the action was barred by Rev. Stat. § 1047, Comp. Stat. 1913, § 1712 (now 28 U.S.C. § 2462 ), which imposed a 5-year limitations period upon any " 'suit or prosecution for a penalty or forfeiture, pecuniary or otherwise, accruing under the laws of the United States.' " 236 U.S., at 423, 35 S.Ct. 328. The Court rejected that argument, reasoning that "the words 'penalty or forfeiture' in [the statute] refer to something imposed in a punitive way for an infraction of a public law." Ibid . A penalty, the Court held, does "not include a liability imposed [solely] for the purpose of redressing a private injury." Ibid . Because the liability imposed was compensatory and paid entirely to a private plaintiff, it was not a "penalty" within the meaning of the statute of limitations. Ibid. ; see also Gabelli, 568 U.S., at 451-452, 133 S.Ct. 1216 ("[P]enalties" in the context of § 2462"go beyond compensation, are intended to punish, and label defendants wrongdoers"). B Application of the foregoing principles readily demonstrates that SEC disgorgement constitutes a penalty within the meaning of § 2462. First, SEC disgorgement is imposed by the courts as a consequence for violating what we described in Meeker as public laws. The violation for which the remedy is sought is committed against the United States rather than an aggrieved individual-this is why, for example, a securities-enforcement action may proceed even if victims do not support or are not parties to the prosecution. As the Government concedes, "[w]hen the SEC seeks disgorgement, it acts in the public interest, to remedy harm to the public at large, rather than standing in the shoes of particular injured parties." Brief for United States 22. Courts agree. See, e.g., SEC v. Rind, 991 F.2d 1486, 1491 (C.A.9 1993) ("[D]isgorgement actions further the Commission's public policy mission of protecting investors and safeguarding the integrity of the markets"); SEC v. Teo, 746 F.3d 90, 102 (C.A.3 2014) ("[T]he SEC pursues [disgorgement] 'independent of the claims of individual investors' " in order to " 'promot[e] economic and social policies' "). Second, SEC disgorgement is imposed for punitive purposes. In Texas Gulf -one of the first cases requiring disgorgement in SEC proceedings-the court emphasized the need "to deprive the defendants of their profits in order to ... protect the investing public by providing an effective deterrent to future violations." 312 F.Supp., at 92. In the years since, it has become clear that deterrence is not simply an incidental effect of disgorgement. Rather, courts have consistently held that "[t]he primary purpose of disgorgement orders is to deter violations of the securities laws by depriving violators of their ill-gotten gains." SEC v. Fischbach Corp ., 133 F.3d 170, 175 (C.A.2 1997) ; see also SEC v. First Jersey Securities, Inc., 101 F.3d 1450, 1474 (C.A.2 1996) ("The primary purpose of disgorgement as a remedy for violation of the securities laws is to deprive violators of their ill-gotten gains, thereby effectuating the deterrence objectives of those laws"); Rind, 991 F.2d, at 1491 (" 'The deterrent effect of [an SEC] enforcement action would be greatly undermined if securities law violators were not required to disgorge illicit profits' "). Sanctions imposed for the purpose of deterring infractions of public laws are inherently punitive because "deterrence [is] not [a] legitimate nonpunitive governmental objectiv[e]." Bell v. Wolfish, 441 U.S. 520, 539, n. 20, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) ; see also United States v. Bajakajian, 524 U.S. 321, 329, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998) ("Deterrence ... has traditionally been viewed as a goal of punishment"). Finally, in many cases, SEC disgorgement is not compensatory. As courts and the Government have employed the remedy, disgorged profits are paid to the district court, and it is "within the court's discretion to determine how and to whom the money will be distributed." Fischbach Corp ., 133 F.3d, at 175. Courts have required disgorgement "regardless of whether the disgorged funds will be paid to such investors as restitution." Id ., at 176 ; see id ., at 175 ("Although disgorged funds may often go to compensate securities fraud victims for their losses, such compensation is a distinctly secondary goal"). Some disgorged funds are paid to victims; other funds are dispersed to the United States Treasury. See, e.g., id., at 171 (affirming distribution of disgorged funds to Treasury where "no party before the court was entitled to the funds and ... the persons who might have equitable claims were too dispersed for feasible identification and payment"); SEC v. Lund, 570 F.Supp. 1397, 1404-1405 (C.D.Cal.1983) (ordering disgorgement and directing trustee to disperse funds to victims if "feasible" and to disperse any remaining money to the Treasury). Even though district courts may distribute the funds to the victims, they have not identified any statutory command that they do so. When an individual is made to pay a noncompensatory sanction to the Government as a consequence of a legal violation, the payment operates as a penalty. See Porter v. Warner Holding Co., 328 U.S. 395, 402, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946) (distinguishing between restitution paid to an aggrieved party and penalties paid to the Government). SEC disgorgement thus bears all the hallmarks of a penalty: It is imposed as a consequence of violating a public law and it is intended to deter, not to compensate. The 5-year statute of limitations in § 2462 therefore applies when the SEC seeks disgorgement. C The Government's primary response to all of this is that SEC disgorgement is not punitive but "remedial" in that it "lessen[s] the effects of a violation" by " 'restor[ing] the status quo.' " Brief for Respondent 17. As an initial matter, it is not clear that disgorgement, as courts have applied it in the SEC enforcement context, simply returns the defendant to the place he would have occupied had he not broken the law. SEC disgorgement sometimes exceeds the profits gained as a result of the violation. Thus, for example, "an insider trader may be ordered to disgorge not only the unlawful gains that accrue to the wrongdoer directly, but also the benefit that accrues to third parties whose gains can be attributed to the wrongdoer's conduct." SEC v. Contorinis, 743 F.3d 296, 302 (C.A.2 2014). Individuals who illegally provide confidential trading information have been forced to disgorge profits gained by individuals who received and traded based on that information-even though they never received any profits. Ibid .; see also SEC v. Warde, 151 F.3d 42, 49 (C.A.2 1998) ("A tippee's gains are attributable to the tipper, regardless whether benefit accrues to the tipper"); SEC v. Clark, 915 F.2d 439, 454 (C.A.9 1990) ("[I]t is well settled that a tipper can be required to disgorge his tippees' profits"). And, as demonstrated by this case, SEC disgorgement sometimes is ordered without consideration of a defendant's expenses that reduced the amount of illegal profit. App. to Pet. for Cert. 43a; see Restatement (Third) § 51, Comment h, at 216 ("As a general rule, the defendant is entitled to a deduction for all marginal costs incurred in producing the revenues that are subject to disgorgement. Denial of an otherwise appropriate deduction, by making the defendant liable in excess of net gains, results in a punitive sanction that the law of restitution normally attempts to avoid"). In such cases, disgorgement does not simply restore the status quo; it leaves the defendant worse off. The justification for this practice given by the court below demonstrates that disgorgement in this context is a punitive, rather than a remedial, sanction: Disgorgement, that court explained, is intended not only to "prevent the wrongdoer's unjust enrichment" but also "to deter others' violations of the securities laws." App. to Pet. for Cert. 43a. True, disgorgement serves compensatory goals in some cases; however, we have emphasized "the fact that sanctions frequently serve more than one purpose." Austin v. United States, 509 U.S. 602, 610, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). " 'A civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.' " Id., at 621, 113 S.Ct. 2801 ; cf. Bajakajian, 524 U.S., at 331, n. 6, 118 S.Ct. 2028 ("[A] modern statutory forfeiture is a 'fine' for Eighth Amendment purposes if it constitutes punishment even in part"). Because disgorgement orders "go beyond compensation, are intended to punish, and label defendants wrongdoers" as a consequence of violating public laws, Gabelli, 568 U.S., at 451-452, 133 S.Ct. 1216 they represent a penalty and thus fall within the 5-year statute of limitations of § 2462. III Disgorgement, as it is applied in SEC enforcement proceedings, operates as a penalty under § 2462. Accordingly, any claim for disgorgement in an SEC enforcement action must be commenced within five years of the date the claim accrued. The judgment of the Court of Appeals for the Tenth Circuit is reversed. It is so ordered. Each of these statutes-the Securities Act of 1933, 15 U.S.C. § 77a et seq. ; the Securities Exchange Act of 1934,15 U.S.C. § 78a et seq. ; the Public Utility Holding Company Act of 1935, 15 U.S.C. § 79 et seq. ; the Trust Indenture Act of 1939, 15 U.S.C. § 77aaa et seq. ; the Investment Company Act of 1940, 15 U.S.C. § 80a-1 et seq. ; and the Investment Advisers Act of 1940, 15 U.S.C. § 80b-1 et seq. -serves the "fundamental purpose" of "substitut[ing] a philosophy of full disclosure for the philosophy of caveat emptor and thus ... achiev[ing] a high standard of business ethics in the securities industry." SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 186, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963). Compare SEC v. Graham, 823 F.3d 1357, 1363 (C.A.11 2016) (holding that § 2462 applies to SEC disgorgement claims), with Riordan v. SEC, 627 F.3d 1230, 1234 (C.A.D.C.2010) (holding that § 2462 does not apply to SEC disgorgement claims). Nothing in this opinion should be interpreted as an opinion on whether courts possess authority to order disgorgement in SEC enforcement proceedings or on whether courts have properly applied disgorgement principles in this context The sole question presented in this case is whether disgorgement, as applied in SEC enforcement actions, is subject to § 2462's limitations period. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Blackmun delivered the opinion of the Court. A regular or reserve commissioned officer of the United States Army who retires after 20 years of service is entitled to retired pay. 10 U. S. C. §§ 3911 and 3929. The question presented by this case is whether, upon the dissolution of a marriage, federal law precludes a state court from dividing military nondisability retired pay pursuant to state community property laws. I Although disability pensions have been provided to military veterans from the Revolutionary War period to the present, it was not until the War Between the States that Congress enacted the first comprehensive nondisability military retirement legislation. See Preliminary Review of Military Retirement Systems: Hearings before the Military Compensation Subcommittee of the House Committee on Armed Services, 95th Cong., 1st and 2d Sess., 5 (1977-1978) (Military Retirement Hearings) (statement of Col. Leon S. Hirsh, Jr., USAF, Director of Compensation, Office of the Assistant Secretary of Defense for Manpower, Reserve Affairs, and Logistics); Subcommittee on Retirement Income and Employment, House Select Committee on Aging, Women and Retirement Income Programs: Current Issues of Equity and Adequacy, 96th Cong., 1st Sess., 15 (Comm. Print 1979) (Women and Retirement). Sections 15 and 21 of the Act of Aug. 3, 1861, 12 Stat. 289, 290, provided that any Army, Navy, or Marine Corps officer with 40 years of service could apply to the President to be retired with pay; in addition, §§16 and 22'of that Act authorized the involuntary retirement with pay of any officer “incapable of performing the duties of his office.” 12 Stat. 289, 290. The impetus for this legislation was the need to encourage or force the retirement of officers who were not fit for wartime duty. Women and Retirement, at 15. Thus, from its inception, the military nondisability retirement system has been “as much a personnel management tool as an income maintenance method,” id., at 16; the system was and is designed not only to provide for retired officers, but also to ensure a “young and vigorous” military force, to create an orderly pattern of promotion, and to serve as a recruiting and re-enlistment inducement. Military Retirement Hearings, at 4-6, 13 (statement of Col. Hirsh). Under current law, there are three basic forms of military retirement: nondisability retirement; disability retirement; and reserve retirement. See id., at 4. For our present purposes, only the first of these three forms is relevant. Since each of the military services has substantially the same non-disability retirement system, see id., at 5, the Army’s system may be taken as typical. An Army officer who has 20 years of service, at least 10 of which have been active service as a commissioned officer, may request that the Secretary of the Army retire him. 10 U. S. C. § 3911. An officer who requests such retirement is entitled to “retired pay.” This is calculated on the basis of the number of years served and rank achieved. §§ 3929 and 3991. An officer who serves for less than 20 years is not entitled to retired pay. The nondisability retirement system is noncontributory in that neither the service member nor the Federal Government makes periodic contributions to any fund during the period of active service; instead, retired pay is funded by annual appropriations. Military Retirement Hearings, at 5. In contrast, since 1957, military personnel have been required to contribute to the Social Security System. Pub. L. 84-881, 70 Stat. 870. See 42 U. S. C. §§ 410 (i) and (m). Upon satisfying the necessary age requirements, the Army retiree, the spouse, an ex-spouse who was married to the retiree for at least 10 years, and any dependent children are entitled to Social Security benefits. See 42 U. S. C. §§ 402 (a) to (f) (1976 ed. and Supp. IV). Military retired pay terminates with the retired service member’s death, and does not pass to the member’s heirs. The member, however, may designate a beneficiary to receive any arrearages that remain unpaid at death. 10 U. S. C. § 2771. In addition, there are statutory schemes that allow a service member to set aside a portion of the member’s retired pay for his or her survivors. The first such scheme, now known as the Retired Serviceman’s Family Protection Plan (RSFPP), was established in 1953. Act of Aug. 8, 1953, 67 Stat. 501, current version at 10 U. S. C. §§ 1431-1446 (1976 ed. and Supp. IV). Under the RSFPP, the military member could elect to reduce his or her retired pay in order to provide, at death, an annuity for a surviving spouse or child. Participation in the RSFPP was voluntary, and the participating member, prior to receiving retired pay, could revoke the election in order “to reflect a change in the marital or dependency status of the member or his family that is caused by death, divorce, annulment, remarriage, or acquisition of a child....” § 1431 (c). Further, deductions from retired pay automatically cease upon the death or divorce of the service member’s spouse. § 1434 (c). Because the RSFPP was self-financing, it required the deduction of a substantial portion of the service member’s retired pay; consequently, only about 15% of eligible military retirees participated in the plan. See H. R. Rep. No. 92-481, pp. 4-5 (1971); S. Rep. No. 92-1089, p. 11 (1972). In order to remedy this situation, Congress enacted the Survivor Benefit Plan (SBP) in 1972. Pub. L. 92-425, 86 Stat. 706, codified, as amended, at 10 U. S. C. §§ 1447-1455 (1976 ed. and Supp. IV). Participation in this plan is automatic unless the service member chooses to opt out. § 1448 (a). The SBP is not entirely self-financing; instead, the Government contributes to the plan, thereby rendering participation in the SBP less expensive for the service member than participation in the RSFPP. Participants in the RSFPP were given the option of continuing under that plan or of enrolling in the SBP. Pub. L. 92-425, § 3, 86 Stat. 711, as amended by Pub. L. 93-155, § 804, 87 Stat. 615. II Appellant Richard John McCarty and appellee Patricia Ann McCarty were married in Portland, Ore., on March 23, 1957, while appellant was in his second year in medical school at the University of Oregon. During his fourth year in medical school, appellant commenced active duty in the United States Army. Upon graduation, he was assigned to successive tours of duty in Pennsylvania, Hawaii, Washington, D. C., California, and Texas. After completing his duty in Texas, appellant was assigned to Letterman Hospital on the Presidio Military Reservation in San Francisco, where he became Chief of Cardiology. At the time this suit was instituted in 1976, appellant held the rank of Colonel and had served approximately 18 of the 20 years required under 10 U. S. C. § 3911 for retirement with pay. Appellant and appellee separated on October 31, 1976. On December 1 of that year, appellant filed a petition in the Superior Court of California in and for the City and County of San Francisco requesting dissolution of the marriage. Under California law, a court granting dissolution of a marriage must divide “the community property and the quasi-community property of the parties.” Cal. Civ. Code Ann. § 4800 (a) (West Supp. 1981). Like seven other States, California treats all property earned by either spouse during the marriage as community property; each spouse is deemed to make an equal contribution to the marital enterprise, and therefore each is entitled to share equally in its assets. See Hisquierdo v. Hisquierdo, 439 U. S. 572, 577-578 (1979). “Quasi-community property” is defined as “all real or personal property, wherever situated heretofore or hereafter acquired... [b]y either spouse while domiciled elsewhere which would have been community property if the spouse who acquired the property had been domiciled in [California] at the time of its acquisition.” Cal. Civ. Code Ann. §4803 (West Supp. 1981). Upon dissolution of a marriage, each spouse has an equal and absolute right to a half interest in all community and quasi-community property; in contrast, each spouse retains his or her separate property, which includes assets the spouse owned before marriage or acquired separately during marriage through gift. See Hisquierdo, 439 U. S., at 578. In his dissolution petition, appellant requested that all listed assets, including “[a] 11 military retirement benefits,” be confirmed to him as his separate property. App. 2. In her response, appellee also requested dissolution of the marriage, but contended that appellant had no separate property and that therefore his military retirement benefits were “subject to disposition by the court in this proceeding.” Id., at 8-9. On November 23, 1977, the Superior Court entered findings of fact and conclusions of law holding that appellant was entitled to an interlocutory judgment dissolving the marriage. Id., at 39, 44. Appellant was awarded custody of the couple’s three minor children; appellee was awarded spousal support. The court found that the community property of the parties consisted of two automobiles, cash, the cash value of life insurance policies, and an uncollected debt. Id., at 42. It allocated this property between the parties. Id., at 45. In addition, the court held that appellant’s “military pension and retirement rights” were subject to division as quasi-community property. Ibid. Accordingly, the court ordered appellant to pay to appellee, so long as she lives, “that portion of his total monthly pension or retirement payment which equals one-half (½) of the ratio of the total time between marriage and separation during which [appellant] was in the United States Army to the total number of years he has served with the... Army at the time of retirement.” Id., at 43-44. The court retained jurisdiction “to make such determination at that time and to supervise distribution....” Ibid. On September 30, 1978, appellant retired from the Army after 20 years of active duty and began receiving retired pay; under the decree of dissolution, appellee was entitled to approximately 45% of that retired pay. Appellant sought review of the portion of the Superior Court’s decree that awarded appellee an interest in the retired pay. The California Court of Appeal, First Appellate District, however, affirmed the award. App. to Juris. Statement 32. In so ruling, the court declined to accept appellant’s contention that because the federal scheme of military retirement benefits pre-empts state community property laws, the Supremacy Clause, U. S. Const., Art. VI, cl. 2, precluded the trial court from awarding appellee a portion of his retired pay. The court noted that this precise contention had been rejected in In re Fithian, 10 Cal. 3d 592, 517 P. 2d 449, cert, denied, 419 U. S. 825 (1974). Furthermore, the court concluded that the result in Fithian had not been called into question by this Court’s subsequent decision in Hisquierdo v. Hisquierdo, supra, where it was held that benefits payable under the federal Railroad Retirement Act of 1974 could not be divided under state community property law. See also Gorman v. Gorman, 90 Cal. App. 3d 454, 153 Cal. Rptr. 479 (1979). The California Supreme Court denied appellant’s petition for hearing. App. to Juris. Statement 83. We postponed jurisdiction. 449 U. S. 917 (1980). We have now concluded that this case properly falls within our appellate jurisdiction, and we therefore proceed to the merits. Ill This Court repeatedly has recognized that '"[t]he whole subject of the domestic relations of husband and wife... belongs to the laws of the States and not to the laws of the United States.’ ” Hisquierdo, 439 U. S., at 581, quoting In re Burrus, 136 U. S. 586, 593-594 (1890). Thus, “[s]tate family and family-property law must do'major damage’ to 'clear and substantial’ federal interests before the Supremacy Clause will demand that state law be overridden.” Hisquierdo, 439 U. S., at 581, with references to United States v. Yazell, 382 U. S. 341, 352 (1966). See also Alessi v. Raybestos-Manhattan, Inc., 451 U. S. 504, 522 (1981). In Hisquierdo, we concluded that California’s application of community property principles to Railroad Retirement Act benefits worked such an injury to federal interests. The “critical terms” of the federal statute relied upon in reaching that conclusion included provisions establishing “a specified beneficiary protected by a flat prohibition against attachment and anticipation,” see 45 U. S. C. § 231m, and a limited community property concept that terminated upon divorce, see 45 U. S. C. § 231d. 439 U. S., at 582-585. Appellee argues that no such provisions are to be found in the statute presently under consideration, and that therefore Hisquierdo is inapposite. But Hisquierdo did not hold that only the particular statutory terms there considered would justify a finding of pre-emption; rather, it held that “[t]he pertinent questions are whether the right as asserted conflicts with the express terms of federal law and whether its consequences sufficiently injure the objectives of the federal program to require nonrecognition.” Id., at 583. It is to that twofold inquiry that we now turn. A Appellant argues that California’s application of community property concepts to military retired pay conflicts with federal law in two distinct ways. He contends, first, that the California court’s conclusion that retired pay is “awarded in return for services previously rendered,” see Fithian, 10 Cal. 3d, at 604, 517 P. 2d, at 457, ignores clear federal law to the contrary. The community property division of military retired pay rests on the premise that that pay, like a typical pension, represents deferred compensation for services performed during the marriage. Id., at 596, 517 P. 2d, at 451. But, appellant asserts, military retired pay in fact is current compensation for reduced, but currently rendered, services; accordingly, even under California law, that pay may not be treated as community property to the extent that it is earned after the dissolution of the marital community, since the earnings of a spouse while living “separate and apart” are separate property. Cal. Civ. Code Ann. §§ 5118, 5119 (West 1970 and Supp. 1981). Appellant correctly notes that military retired pay differs in some significant respects from a typical pension or retirement plan. The retired officer remains a member of the Army, see United States v. Tyler, 105 U. S. 244 (1882), and continues to be subject to the Uniform Code of Military-Justice, see 10 U. S. C. § 802 (4). See also Hooper v. United States, 164 Ct. Cl. 151, 326 F. 2d 982, cert, denied, 377 U. S. 977 (1964). In addition, he may forfeit all or part of his retired pay if he engages in certain activities. Finally, the retired officer remains subject to recall to active duty by the Secretary of the Army “at any time.” Pub. L. 96-513, § 106, 94 Stat. 2868. These factors have led several courts, including this one, to conclude that military retired pay is reduced compensation for reduced current services. In United States v. Tyler, 105 U. S., at 245, the Court stated that retired pay is “compensation... continued at a reduced rate, and the connection is continued, with a retirement from active service only.” Having said all this, we need not decide today whether federal law prohibits a State from characterizing retired pay as deferred compensation, since we agree with appellant’s alternative argument that the application of community property law conflicts with the federal military retirement scheme regardless of whether retired pay is defined as current or as deferred compensation. The statutory language is straightforward: “A member of the Army retired under this chapter is entitled to retired pay... 10 U. S. C. § 3929. In His-quierdo, 439 U. S., at 584, we emphasized that under the Railroad Retirement Act a spouse of a retired railroad worker was entitled to a separate annuity that terminated upon divorce, see 45 U. S. C. § 231d (c) (3); in contrast, the military retirement system confers no entitlement to retired pay upon the retired service member’s spouse. Thus, unlike the Railroad Retirement Act, the military retirement system does not embody even a limited “community property concept.” Indeed, Congress has explicitly stated: “Historically, military retired pay has been a personal entitlement payable to the retired member himself as long as he lives.” S. Rep. No. 1480, 90th Cong., 2d Sess., 6 (1968) (emphasis added). Appellee argues that Congress’ use of the term “personal entitlement” in this context signifies only that retired pay ceases upon the death of the service member. But several features of the statutory schemes governing military pay demonstrate that Congress did not use the term in so limited a fashion. First, the service member may designate a beneficiary to receive any unpaid arrearages in retired pay upon his death. 10 U. S. C. § 2771. The service member is free to designate someone other than his spouse or ex-spouse as the beneficiary; further, the statute expressly provides that “[a] payment uñder this section bars recovery by any other person of the amount paid.” § 2771 (d). In Wissner v. Wissner, 338 U. S. 655 (1950), this Court considered an analogous statutory scheme. Under the National Service Life Insurance Act, an insured service member had the right to designate the beneficiary of his policy. Id., at 658. Wissner held that California could not award a service member’s widow half the proceeds of a life insurance policy, even though the source of the premiums — the member’s Army pay — was characterized as community property under California law. The Court reserved the question whether California is “entitled to call army pay community property,” id., at 657, n. 2, since it found that Congress had “spoken with force and clarity in directing that the proceeds belong to the named beneficiary and no other.” Id., at 658. In the present context, Congress has stated with “force and clarity” that a beneficiary under § 2771 claims an interest in the retired pay itself, not simply in proceeds from a policy purchased with that pay. One commentator has noted: “If retired pay were community property, the retiree could not thus summarily deprive his wife of her interest in the arrear-age.” Goldberg, Is Armed Services Retired Pay Really Community Property?, 48 Cal. Bar J. 12, 17 (1973). Second, the language, structure, and legislative history of the RSFPP and the SBP also demonstrate that retired pay is a “personal entitlement.” While retired pay ceases upon the death of the service member, the RSFPP and the SBP allow the service member to reduce his or her retired pay in order to provide an annuity for the surviving spouse or children. Under both plans, however, the service member is free to elect to provide no annuity at all, or to provide an annuity payable only to the surviving children, and not to the spouse. See 10 U. S. C. § 1434 (1976 ed. and Supp. IV) (RSFPP); § 1450 (1976 ed. and Supp. IV) (SBP). Here again, it is clear that if retired pay were community property, the service member could not so deprive the spouse of his or her interest in the property. But we need not rely on this implicit conflict alone, for both the language of the statutes and their legislative history make it clear that the decision whether to leave an annuity is the service member’s decision alone because retired pay is his or her personal entitlement. It has been stated in Congress that “[t]he rights in retirement pay accrue to the retiree and, ultimately, the decision is his as to whether or not to leave part of that retirement pay as an annuity to his survivors.” H. R. Rep. No. 92-481, p. 9 (1971). California’s community property division of retired pay is simply inconsistent with this explicit expression of congressional intent that retired pay accrue to the retiree. Moreover, such a division would have the anomalous effect of placing an ex-spouse in a better position than that of a widower or a widow under the RSPPP and the SBP. Ap-pellee argues that “Congress’ concern for the welfare of soldiers’ widows sheds little light on Congress’ attitude toward the community treatment of retirement benefits,” quoting Fithian, 10 Cal. 3d, at 600, 517 P. 2d, at 454. But this argument fails to recognize that Congress deliberately has chosen to favor the widower or widow over the exspouse. An ex-spouse is not an eligible beneficiary of an annuity under either plan. 10 U. S. C. § 1434 (a) (RSFPP); §§ 1447 (3) and 1450 (a) (SBP). In addition, under the RSFPP, deductions from retired pay for a spouse’s annuity automatically cease upon divorce, § 1434 (c), so as “[t]o safeguard the participants’ future retired pay when... divorce occurs....” S. Rep. No. 1480, 90th Cong., 2d Sess., 13 (1968). While the SBP does not expressly provide that annuity deductions cease upon divorce, the legislative history indicates that Congress’ policy remained unchanged. The SBP, which was referred to as the “widow’s equity bill,” 118 Cong. Rec. 29811 (1972) (statement of Sen. Beall), was enacted because of Congress’ concern over the number of widows left without support through low participation in the RSFPP, not out of concern for exspouses. See H. R. Rep. No. 92-481, pp. 4-5 (1971); S. Rep. No. 92-1089, p. 11 (1972). Third, and finally, it is clear that Congress intended that military retired pay “actually reach the beneficiary.” See Hisquierdo, 439 U. S., at 584. Retired pay cannot be attached to satisfy a property settlement incident to the dissolution of a marriage. In enacting the SBP, Congress rejected a provision in the House bill, H. R. 10670, that would have allowed attachment of up to 50% of military retired pay to comply with a court order in favor of a spouse, former spouse, or child. See H. R. Rep. No. 92-481, at 1; S. Rep. No. 92-1089, at 25. The House Report accompanying H. R. 10670 noted that under Buchanan v. Alexander, 4 How. 20 (1845), and Applegate v. Applegate, 39 F. Supp. 887 (ED Va. 1941), military pay could not be attached so long as it was in the Government’s hands; thus, this clause of H. R. 10670 represented a “drastic departure” from current law, but one that the House Committee on Armed Services believed to be necessitated by the difficulty of enforcing support orders. H. R. Rep. No. 92-481, at 17-18. Although this provision passed the House, it was not included in the Senate version of the bill. See S. Rep. No. 92-1089, at 25. Thereafter, the House acceded to the Senate’s view that the attachment provision would unfairly “single out military retirees for a form of enforcement of court orders imposed on no other employees or retired employees of the Federal Government.” 118 Cong. Rec. 30151 (1972) (remarks of Rep. Pike); S. Rep. No. 92-1089, at 25. Instead, Congress determined that the problem of the attachment of military retired pay should be considered in the context of “legislation that might require all Federal pays to be subject to attachment.” Ibid.; 118 Cong. Rec. 30151 (1972) (remarks of Rep. Pike). Subsequently, comprehensive legislation was enacted. In 1975, Congress amended the Social Security Act to provide that all federal benefits, including those payable to members of the Armed Services, may be subject to legal process to enforce child support or alimony obligations. Pub. L. 93-647, § 101 (a), 88 Stat. 2357, 42 IT. S. C. § 659. In 1977, however, Congress added a new definitional section (§ 462 (c)) providing that the term “alimony” in § 659 (a) “does not include any payment or transfer of property... in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses.” Pub. L. 95-30, § 501 (d), 91 Stat. 159, 42 U. S. C. § 662 (c) (1976 ed., Supp. IV). As we noted in Hisquierdo, it is “logical to conclude that Congress, in adopting § 462 (c), thought that a family’s need for support could justify garnishment, even though it deflected other federal benefits from their intended goals, but that community property claims, which are not based on need, could not do so.” 439 U. S., at 587. Hisquierdo also pointed out that Congress might conclude that this distinction between support and community property claims is “undesirable.” Id., at 590. Indeed, Congress recently enacted legislation that requires that Civil Service retirement benefits be paid to an ex-spouse to the extent provided for in “the terms of any court order or court-approved property settlement agreement incident to any court decree of divorce, annulment, or legal separation.” Pub. L. 95-366, § 1 (a), 92 Stat. 600, 5 U. S. C. § 8345 (j) (1) (1976 ed., Supp. IV). In an even more extreme recent step, Congress amended the Foreign Service retirement legislation to provide that, as a matter of federal law, an ex-spouse is entitled to a pro rata share of Foreign Service retirement benefits. Thus, the Civil Service amendments require the United States to recognize the community property division of Civil Service retirement benefits by a state court, while the Foreign Service amendments establish a limited federal community property concept. Significantly, however, while similar legislation affecting military retired pay was introduced in the 96th Congress, none of those bills was reported out of committee. Thus, in striking contrast to its amendment of the Foreign Service and Civil Service retirement systems, Congress has neither authorized nor required the community property division of military retired pay. On the contrary, that pay continues to be the personal entitlement of the retiree. B We conclude, therefore, that there is a conflict between the terms of the federal retirement statutes and the community property right asserted by appellee here. But “[a] mere conflict in words is not sufficient”; the question remains whether the “consequences [of that community property right] sufficiently injure the objectives of the federal program to require nonrecognition.” Hisquierdo, 439 U. S., at 581-583. This inquiry, however, need be only a brief one, for it is manifest that the application of community property principles to military retired pay threatens grave harm to “clear and substantial” federal interests. See United States v. Yazell, 382 U. S., at 352. Under the Constitution, Congress has the power “[t]o raise and support Armies,” “[t]o provide and maintain a Navy,” and “[t]o makes Buies for the Government and Regulation of the land and naval Forces.” U. S. Const., Art. I, § 8, cls. 12, 13, and 14. See generally Rostker v. Goldberg, ante, at 59. Pursuant to this grant of authority, Congress has enacted a military retirement system designed to accomplish two major goals: to provide for the retired service member, and to meet the personnel management needs of the active military forces. The community property division of retired pay has the potential to frustrate each of these objectives. In the first place, the community property interest appel-lee seeks “promises to diminish that portion of the benefit Congress has said should go to the retired [service member] alone.” See Hisquierdo, 439 U. S., at 590. State courts are not free to reduce the amounts that Congress has determined are necessary for the retired member. Furthermore, the community property division of retired pay may disrupt the carefully balanced scheme Congress has devised to encourage a service member to set aside a portion of his or her retired pay as an annuity for a surviving spouse or dependent children. By diminishing the amount available to the retiree, a community property division makes it less likely that the retired service member will choose to reduce his or her retired pay still further by purchasing an annuity for the surviving spouse, if any, or children. In McCune v. Essig, 199 U. S. 382 (1905), the Court held that federal law, which permitted a widow to patent federal land entered by her husband, prevailed over the interest in the patent asserted by the daughter under state inheritance law; the Court noted that the daughter’s contention “reverses the order of the statute and gives the children an interest paramount to that of the widow through the laws of the State.” Id., at 389. So here, the right appellee asserts “reverses the order of the statute” by giving the ex-spouse an interest paramount to that of the surviving spouse and children of the service member; indeed, at least one court (in a noncommunity property State) has gone so far as to hold that the heirs of the ex-spouse may even inherit her interest in military retired pay. See In re Miller,-Mont.-, 609 P. 2d 1185 (1980), cert. pending sub nom. Miller v. Miller, No. 80-291. Clearly, “[t]he law of the State is not competent to do this.” McCune v. Essig, 199 U. S., at 389. The potential for disruption of military personnel management is equally clear. As has been noted above, the military retirement system is designed to serve as an inducement for enlistment and re-enlistment, to create an orderly career path, and to ensure “youthful and vigorous” military forces. While conceding that there is a substantial interest in attracting and retaining personnel for the military forces, appellee argues that this interest will not be impaired by allowing a State to apply its community property laws to retired military personnel in the same manner that it applies those laws to civilians. Yet this argument ignores two essential characteristics of military service: the military forces are national in operation; and their members, unlike civilian employees, cf. Hisquierdo, are not free to choose their place of residence. Appellant, for instance, served tours of duty in four States and the District of Columbia. The value of retired pay as an inducement for enlistment or re-enlistment is obviously diminished to the extent that the service member recognizes that he or she may be involuntarily transferred to a State that will divide that pay upon divorce. In Free v. Bland, 369 U. S. 663 (1962), the Court held that state community property law could not override the survivorship provision of a federal savings bond, since it was “[o]ne of the inducements selected,” id., at 669, to make purchase of such bonds attractive; similarly, retired pay is one of the inducements selected to make military service attractive, and the application of state community property law thus “interferefs] directly with a legitimate exercise of the power of the Federal Government.” Ibid. The interference with the goals of encouraging orderly promotion and a youthful military is no less direct. Here, as in the Railroad Retirement Act context, “Congress has fixed an amount thought appropriate to support an employee’s old age and to encourage the employee to retire.” See Hisquierdo, 439 U. S., at 685. But the reduction of retired pay by a community property award not only discourages retirement by reducing the retired pay available to the service member, but gives him a positive incentive to keep working, since current income after divorce is not divisible as community property. See Cal. Civ. Code Ann. §§ 5118, 5119 (West 1970 and Supp. 1981). Congress has determined that a youthful military is essential to the national defense; it is not for States to interfere with that goal by lessening the incentive to retire created by the military retirement system. IV We recognize that the plight of an ex-spouse of a retired service member is often a serious one. See Hearing on H. R. 2817, H. R. 3677, and H. R. 6270 before the Military Compensation Subcommittee of the House Committee on Armed Services, 96th Cong., 2d Sess. (1980). That plight may be mitigated to some extent bv the ex-spouse’s right to claim Social Security benefits, cf. Hisquierdo, 439 U. S., at 590, and to garnish military retired pay for the purposes of support. Nonetheless, Congress may well decide, as it has in the Civil Service and Foreign Service contexts, that more protection should be afforded a former spouse of a retired service member. This decision, however, is for Congress alone. We very recently have re-emphasized that in no area has the Court accorded Congress greater deference than in the conduct and control of military affairs. See Rostker v. Goldberg, ante, at 64-65. Thus, the conclusion that we reached in Hisquierdo follows a fortiori here: Congress has weighed the matter, and “[i]t is not the province of state courts to strike a balance different from the one Congress has struck.” 439 U. S., at 590. The judgment of the California Court of Appeal is reversed, and the case is Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

J

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. 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"Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice SOTOMAYOR delivered the opinion of the Court. In 2004, the M/T Athos I, a 748-foot oil tanker, allided with a nine-ton anchor abandoned on the bed of the Delaware River. The anchor punctured the tanker's hull, causing 264,000 gallons of heavy crude oil to spill into the river. As required by federal statute, respondents Frescati Shipping Company-the Athos I's owner-and the United States covered the costs of cleanup. They then sought to reclaim those costs from petitioners CITGO Asphalt Refining Company and others (collectively CARCO), which had chartered the Athos I for the voyage that occasioned the oil spill. According to Frescati and the United States, CARCO had breached a contractual "safe-berth clause" obligating CARCO to select a "safe" berth that would allow the Athos I to come and go "always safely afloat." The question before us is whether the safe-berth clause is a warranty of safety, imposing liability for an unsafe berth regardless of CARCO's diligence in selecting the berth. We hold that it is. I A During the relevant period, the Athos I was the subject of a series of contracts involving three parties: Frescati, Star Tankers, and CARCO. Frescati owned the Athos I. Star Tankers, an operator of tanker vessels, contracted with Frescati to charter the Athos I for a period of time. CARCO then contracted with Star Tankers to subcharter the Athos I for the inauspicious voyage resulting in the oil spill. Pertinent here is the subcharter agreement between Star Tankers and CARCO. In admiralty, such contracts to charter a vessel are termed "charter parties." Like many modern charter parties, the agreement between Star Tankers and CARCO was based on a standard industry form contract. It drew essentially verbatim from a widely used template known as the ASBATANKVOY form, named after the Association of Ship Brokers & Agents (USA) Inc. (ASBA) trade association that publishes it. At the core of the parties' dispute is a clause in the charter party requiring the charterer, CARCO, to designate a safe berth at which the vessel may load and discharge cargo. This provision, a standard feature of many charter parties, is customarily known as a safe-berth clause. The safe-berth clause here provides, as relevant, that "[t]he vessel shall load and discharge at any safe place or wharf,... which shall be designated and procured by the Charterer, provided the Vessel can proceed thereto, lie at, and depart therefrom always safely afloat, any lighterage being at the expense, risk and peril of the Charterer." Addendum to Brief for Petitioners 8a. The charter party separately requires CARCO to direct the Athos I to a "safe por[t]" along the Atlantic seaboard of the United States. Id., at 24a. Pursuant to the charter party, CARCO designated as the berth of discharge its asphalt refinery in Paulsboro, New Jersey, on the shore of the Delaware River. In November 2004, the Athos I set out on a 1,900-mile journey from Puerto Miranda, Venezuela, to Paulsboro, New Jersey, carrying a load of heavy crude oil. The vessel was in the final 900-foot stretch of its journey when an abandoned ship anchor in the Delaware River pierced two holes in the vessel's hull. Much of the Athos I's freight drained into the river. B After the Exxon-Valdez oil spill in 1989, Congress passed the Oil Pollution Act of 1990 (OPA), 104 Stat. 484, 33 U.S.C. § 2701 et seq., to promote the prompt cleanup of oil spills. To that end, OPA deems certain entities responsible for the costs of oil-spill cleanups, regardless of fault. § 2702(a). It then limits the liability of such "responsible part[ies]" if they (among other things) timely assist with cleanup efforts. § 2704. Responsible parties that comply with the statutory conditions receive a reimbursement from the Oil Spill Liability Trust Fund (Fund), operated by the Federal Government, for any cleanup costs exceeding a statutory limit. § 2708; see also § 2704. Although a statutorily responsible party must pay cleanup costs without regard to fault, it may pursue legal claims against any entity allegedly at fault for an oil spill. §§ 2710, 2751(e). So may the Fund: By reimbursing a responsible party, the Fund becomes subrogated to the responsible party's rights (up to the amount reimbursed to the responsible party) against any third party allegedly at fault for the incident. §§ 2712(f), 2715(a). As owner of the Athos I, Frescati was deemed a "responsible party" for the oil spill under OPA. Frescati worked with the U.S. Coast Guard in cleanup efforts and covered the costs of the cleanup. As a result, Frescati's liability was statutorily limited to $45 million, and the Fund reimbursed Frescati for an additional $88 million that Frescati paid in cleanup costs. C Following the cleanup, Frescati and the United States each sought recovery against CARCO: Frescati sought to recover the cleanup costs not reimbursed by the Fund, while the United States sought to recover the amount disbursed by the Fund. As relevant here, both Frescati and the United States claimed that CARCO had breached the safe-berth clause by failing to designate a safe berth, and thus was at fault for the spill. After a complicated series of proceedings-including a 41-day trial, a subsequent 31-day evidentiary hearing, and two appeals-the Court of Appeals for the Third Circuit found for Frescati and the United States. The court first concluded that Frescati was an implied third-party beneficiary of the safe-berth clause in the charter party between CARCO and Star Tankers, thereby allowing the breach-of-contract claims by Frescati and the United States to proceed against CARCO. In re Frescati Shipping Co., 718 F.3d 184, 200 (2013). The court then held that the safe-berth clause embodied an express warranty of safety "made without regard to the amount of diligence taken by the charterer," and that CARCO was liable to Frescati and the United States for breaching that warranty. Id., at 203 ; In re Frescati Shipping Co., 886 F.3d 291, 300, 315 (2018) (case below). We granted certiorari, 587 U.S. ----, 139 S.Ct. 1599, 203 L.Ed.2d 754 (2019), to resolve whether the safe-berth clause at issue here merely imposes a duty of diligence, as the Fifth Circuit has held in a similar case, or establishes a warranty of safety, as the Second Circuit has held in other analogous cases. Compare Orduna S. A. v. Zen-Noh Grain Corp., 913 F.2d 1149 (CA5 1990), with, e.g., Paragon Oil Co. v. Republic Tankers, S. A., 310 F.2d 169 (CA2 1962). The former interpretation allows a charterer to avoid liability by exercising due diligence in selecting a berth; the latter imposes liability for an unsafe berth without regard to the care taken by the charterer. Because we find it plain from the language of the safe-berth clause that CARCO warranted the safety of the berth it designated, we affirm the judgment of the Third Circuit. II Maritime contracts "must be construed like any other contracts: by their terms and consistent with the intent of the parties." Norfolk Southern R. Co. v. James N. Kirby, Pty Ltd., 543 U.S. 14, 31, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004) ; see also 2 T. Schoenbaum, Admiralty & Maritime Law § 11:2, p. 7 (6th ed. 2018) ("[F]ederal maritime law includes general principles of contract law"). " 'Where the words of a contract in writing are clear and unambiguous, its meaning is to be ascertained in accordance with its plainly expressed intent.' " M&G Polymers USA, LLC v. Tackett, 574 U.S. 427, 435, 135 S.Ct. 926, 190 L.Ed.2d 809 (2015) (quoting 11 R. Lord, Williston on Contracts § 30:6, p. 108 (4th ed. 2012) (Williston)). In such circumstances, the parties' intent "can be determined from the face of the agreement" and "the language that they used to memorialize [that] agreement." 11 Williston § 30:6, at 97-98, 112-113. But "[w]hen a written contract is ambiguous, its meaning is a question of fact, requiring a determination of the intent of [the] parties in entering the contract"; that may involve examining "relevant extrinsic evidence of the parties' intent and the meaning of the words that they used." Id., § 30:7, at 116-119, 124 (footnote omitted). A Our analysis starts and ends with the language of the safe-berth clause. That clause provides, as relevant, that the charterer "shall... designat[e] and procur[e]" a "safe place or wharf," "provided [that] the Vessel can proceed thereto, lie at, and depart therefrom always safely afloat." Addendum to Brief for Petitioners 8a. As even CARCO acknowledges, the clause plainly imposes on the charterer at least some "duty to select a'safe' berth." Brief for Petitioners 21. Given the unqualified language of the safe-berth clause, it is similarly plain that this acknowledged duty is absolute. The clause requires the charterer to designate a "safe" berth: That means a berth "free from harm or risk." Webster's Collegiate Dictionary 1030 (10th ed. 1994); see also New Oxford American Dictionary 1500 (E. Jewell & F. Abate eds. 2001) ("safe" means "protected from or not exposed to danger or risk"). And the berth must allow the vessel to come and go "always" safely afloat: That means afloat "at all times" and "in any event." Webster's Collegiate Dictionary, at 35; see also New Oxford American Dictionary, at 47 ("always" means "at all times; on all occasions"). Selecting a berth that does not satisfy those conditions constitutes a breach. The safe-berth clause, in other words, binds the charterer to a warranty of safety. No matter that the safe-berth clause does not expressly invoke the term "warranty." It is well settled as a matter of maritime contracts that "[s]tatements of fact contained in a charter party agreement relating to some material matter are called warranties," regardless of the label ascribed in the charter party. 22 Williston § 58.11, at 40-41 (2017); see also Davison v. Von Lingen, 113 U.S. 40, 49-50, 5 S.Ct. 346, 28 L.Ed. 885 (1885) (a stipulation going to "substantive" and "material" parts of a charter party forms "a warranty"); Behn v. Burness, 3 B. & S. 751, 122 Eng. Rep. 281 (K. B. 1863) ("With respect to statements in a [charter party] descriptive of... some material incident..., if the descriptive statement was intended to be a substantive part of the [charter party], it is to be regarded as a warranty"). What matters, then, is that the safe-berth clause contains a statement of material fact regarding the condition of the berth selected by the charterer. Here, the safety of the selected berth is the entire root of the safe-berth clause: It is the very reason for the clause's inclusion in the charter party. And crucially, the charterer's assurance of safety is not subject to qualifications or conditions. Under any conception of materiality and any view of the parties' intent, the charterer's assurance surely counts as material. That leaves no doubt that the safe-berth clause establishes a warranty of safety, on equal footing with any other provision of the charter party that invokes express warranty language. CARCO resists this plain reading of the safe-berth clause, arguing instead that the clause contains an implicit limitation: The clause does not impose "strict liability," says CARCO, or "liability without regard to fault." Brief for Petitioners 23, 25. In effect, CARCO interprets the safe-berth clause as imposing a mere duty of due diligence in the selection of the berth. See Tr. of Oral Arg. 19-20 (arguing that "[CARCO] did [its] due diligence" in "selecting the port or the berth"); id., at 28 (suggesting that the safe-berth clause is constrained "as a matter of due diligence in tort concepts"); Reply Brief 5, n. 3 (asserting that a charterer's liability under the safe-berth clause "should be addressed through... sources of la[w] such as tort law"). But as a general rule, due diligence and fault-based concepts of tort liability have no place in the contract analysis required here. Under elemental precepts of contract law, an obligor is "liable in damages for breach of contract even if he is without fault." Restatement (Second) of Contracts, p. 309 (1979) (Restatement (Second)). To put that default contract-law principle in tort-law terms, "Contract liability is strict liability." Ibid. (emphasis added); see also 23 Willis-ton § 63:8, at 499 (2018) ("Liability for a breach of contract is, prima facie, strict liability"). What CARCO thus protests is the straightforward application of contract liability to a breach of contract. Although contract law generally does not, by its own force, limit liability based on tort concepts of fault, parties are of course free to contract for such limitations. See Restatement (Second), at 309 (obligor who wishes to avoid strict liability for breach may "limi[t] his obligation by agreement"). Here, however, the safe-berth clause is clear that the parties contracted for no such thing. CARCO does not identify-nor can we discern-any language in the clause hinting at "due diligence" or related concepts of "fault." That omission is particularly notable in context: Where the parties intended to limit obligations based on due diligence elsewhere in the charter party, they did so expressly. See Addendum to Brief for Petitioners 4a (providing that the vessel "b[e] seaworthy, and hav[e] all pipes, pumps and heater coils in good working order,... so far as the foregoing conditions can be attained by the exercise of due diligence"); id., at 13a (relieving vessel owner of responsibility for certain consequences of any "unseaworthiness existing... at the inception of the voyage [that] was discoverable by the exercise of due diligence"); id., at 41a (requiring vessel owner to "exercise due diligence to ensure that [a drug and alcohol] policy [onboard the vessel] is complied with"). That the parties did not do so in the safe-berth clause specifically is further proof that they did not intend for such a liability limitation to inhere impliedly. Unable to identify any liability-limiting language in the safe-berth clause, CARCO points to a separate "general exceptions clause" in the charter party that exempts a charterer from liability for losses due to "perils of the seas." Id., at 14a. According to CARCO, the "general exceptions clause" demonstrates that the parties did not intend the safe-berth clause to impose liability for a "peri[l] of the seas" like an abandoned anchor. That argument founders on a critical component of the "general exceptions clause": By its terms, it does not apply when liability is "otherwise... expressly provided" in the charter party. Ibid. The safe-berth clause, as explained above, expressly provides for liability stemming from the designation of an unsafe berth. The catchall "general exceptions clause" neither supersedes nor overlays it. Likewise immaterial is another clause of the charter party that requires Star Tankers to obtain oil-pollution insurance. According to CARCO, that clause evidences the parties' intent to relieve CARCO of oil-spill liability under the safe-berth clause. But the oil-pollution insurance that Star Tankers must obtain covers risks beyond simply those attendant to the selection of an unsafe berth. And CARCO's reading of the insurance clause (as relieving CARCO of oil-spill liability) does not square with its reading of the safe-berth clause (as imposing such liability when CARCO fails to exercise due diligence). Finally, CARCO offers an alternative interpretation of the safe-berth clause that focuses on the vessel master's right instead of the charterer's duty. This alternative interpretation proceeds from the subclause specifying that the selected berth be one that the vessel may "proceed thereto, lie at, and depart therefrom always safely afloat, any lighterage [i.e., transfer of goods between vessels] being at the expense, risk and peril of the Charterer." Id., at 8a. On CARCO's reading, that subclause means that the vessel master has a right to refuse entry into a berth that the master perceives to be unsafe, and the charterer must pay any expenses resulting from the refusal. We have, to be sure, recognized that similarly worded safe-berth clauses may implicitly denote a vessel master's right to refuse entry and the charterer's resultant obligation to bear the costs of that refusal. See Mencke v. Cargo of Java Sugar, 187 U.S. 248, 23 S.Ct. 86, 47 L.Ed. 163 (1902) ; The Gazelle and Cargo, 128 U.S. 474, 9 S.Ct. 139, 32 L.Ed. 496 (1888). But that a charterer may be liable for expenses when a vessel master justifiably refuses to enter an unsafe berth in no way abates the scope of the charterer's liability when a vessel in fact enters an unsafe berth. And a tacit recognition of a vessel master's right of refusal does not overwrite the safe-berth clause's express prescription of a warranty of safety. The dissent, too, offers an alternative interpretation. It claims that if the safe-berth clause binds the charterer to a warranty of safety, the clause must bind the vessel master to effectively the same warranty-due to the clause's statement that " '[t]he vessel shall load and discharge at [a] safe place or wharf.' " Post, at ---- (quoting Addendum to Brief for Petitioners 8a). Because that would "creat[e] contradictory warranties of safety," the dissent continues, the safe-berth clause must not bind the charterer to a warranty of safety (or, apparently, impose an obligation on the charterer at all). Post, at ----. This conclusion does not follow because the conflict diagnosed by the dissent does not exist. The safe-berth clause says that "[t]he vessel shall load and discharge at any safe place or wharf,... which shall be designated and procured by the Charterer." Addendum to Brief for Petitioners 8a. Plainly, that means that the "safe place or wharf... shall be designated and procured by the Charterer." Ibid. The vessel master's duty is only to "load and discharge" at the chosen safe berth. Ibid. (Not, as the dissent urges, at any safe berth the vessel master so desires regardless of the charterer's contractually required selection. Post, at ----, n. 4.) On its face, the vessel master's duty creates no tension with the charterer's duty. And it strains common sense to insist (as the dissent does) that the vessel master implicitly has a separate, dueling obligation regarding the safety of the berth, when the clause explicitly assigns that responsibility to the charterer. Post, at ---- - ----. Perhaps the dissent says it best: We must "reject [this] interpretation that...'se[ts] up... two clauses in conflict with one another.' " Post, at ---- (quoting Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 64, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995) ). We instead take the safe-berth clause at face value. It requires the charterer to select a safe berth, and that requirement here amounts to a warranty of safety. B CARCO's remaining arguments point to authorities that have purportedly construed safe-berth clauses to contain limitations on liability. These arguments find no foothold in the language of the charter party at issue here. And none is otherwise convincing. CARCO asserts, for instance, that a leading admiralty treatise has urged that safe-berth clauses ought not be interpreted as establishing a warranty. See G. Gilmore & C. Black, Law of Admiralty § 4-4, p. 205 (2d ed. 1975) (Gilmore & Black). Gilmore and Black's position, however, stemmed from their belief that vessel masters or vessel owners are generally better positioned than charterers to bear the liability of an unsafe berth. See ibid. (reasoning that charterers "may know nothing of the safety of ports and berths, and [are] much less certain to be insured against" liability for losses stemming from an unsafe berth). Gilmore and Black also acknowledged that, as of 1975, many courts had not interpreted safe-berth clauses in the manner that they proposed. See id., at 204, and n. 34a, 206, and n. 36. Whatever Gilmore and Black sought to prevail upon courts to adopt as a prescriptive matter does not alter the plain meaning of the safe-berth clause here. CARCO next contends that in Atkins v. Disintegrating Co., 85 U.S. (18 Wall.) 272, 21 L.Ed. 841 (1874), this Court acknowledged that safe-berth clauses do not embody a warranty of safety. That greatly overreads Atkins. In that case, this Court affirmed a District Court's ruling that, although the berth selected by the charterer was not safe, the vessel master had "waived" the protection of the safe-berth clause. Atkins v. Fibre Disintegrating Co., 2 F.Cas. 78, 79 (EDNY 1868) ; see Atkins, 18 Wall. at 299. No one posits that the District Court's waiver holding has any significance in this case. CARCO, however, points to language in the District Court's opinion observing that the "safe" berth referenced in the charter party "impl[ied one] which th[e] vessel could enter and depart from without legal restraint, and without incurring more than the ordinary perils of the seas." Atkins, 2 F.Cas. at 79. But the District Court's remark-that a berth may be safe even if certain perils lurk within-did not bear on its finding that the berth in question was un safe or its holding that the vessel master had "waived" the protection of the safe-berth clause. When this Court approved of the District Court's "views" and "conclusions," Atkins, 18 Wall. at 299, it did not adopt as controlling precedent-for all safe-berth clauses going forward-an observation that was not controlling even for the District Court. Also misplaced is CARCO's reliance on Orduna S. A., 913 F.2d 1149. True, the Fifth Circuit there held that a similarly unqualified safe-berth clause imposed a duty of due diligence. Id., at 1157. But in so holding, the court did not purport to interpret the language of the safe-berth clause at issue in that case. Id., at 1156-1157. Instead, it looked principally to tort law and policy considerations. See, e.g., id., at 1156 ("requiring negligence as a predicate for the charterer's liability does not increase the risk that the vessel will be exposed to an unsafe berth"); id., at 1157 ("no legitimate legal or social policy is furthered by making the charterer warrant the safety of the berth it selects"). Neither tort principles nor policy objectives, however, override the safe-berth clause's unambiguous meaning. More consistent with traditional contract analysis is the Second Circuit's long line of decisions interpreting the language of unqualified safe-berth clauses to embody an express warranty of safety. See, e.g., Paragon Oil Co., 310 F.2d at 172-173 ("the express terms of [the] contract" established a "warranty" obliging the charterer "to furnish, not only a place which he believes to be safe, but a place where the chartered vessel can discharge 'always afloat' " (some internal quotation marks omitted)); Park S. S. Co. v. Cities Serv. Oil Co., 188 F.2d 804, 805-806 (CA2 1951) ("the natural meaning of'safe place' is a place entirely safe, not an area only part of which is safe," and "the charter party was an express assurance that the berth was safe"); Cities Serv. Transp. Co. v. Gulf Refining Co., 79 F.2d 521 (CA2 1935) (per curiam ) (the "charter party was itself an express assurance... that at the berth 'indicated' the ship would be able to lie 'always afloat' "). Those decisions, which focused on the controlling contract language, all point in the same direction: When the language of a safe-berth clause obliges a charterer to select a safe berth without qualifying the charterer's duty or the assurance of safety that language establishes a warranty. That aligns with our decision today. III We conclude that the language of the safe-berth clause here unambiguously establishes a warranty of safety, and that CARCO has identified "no reason to contravene the clause's obvious meaning." Kirby, 543 U.S. at 31-32, 125 S.Ct. 385. We emphasize, however, that our decision today "does no more than provide a legal backdrop against which future [charter parties] will be negotiated." Id., at 36, 125 S.Ct. 385. Charterers remain free to contract around unqualified language that would otherwise establish a warranty of safety, by expressly limiting the extent of their obligations or liability. * * * For the foregoing reasons, we conclude that the plain language of the safe-berth clause establishes a warranty of safety and therefore affirm the judgment of the Third Circuit. It is so ordered. Justice THOMAS, with whom Justice ALITO joins, dissenting. The majority concludes that the safe-berth clause in the contract at issue unambiguously created a warranty of safety by the charterer. Although this interpretation provides a clear background rule for the maritime industry to contract against, it is the wrong rule and finds no basis in the contract's plain text. I would hold that the plain language of the safe-berth clause contains no warranty of safety and remand for factfinding on whether industry custom and usage establish such a warranty in this case. Accordingly, I respectfully dissent. I In 2001, Star Tankers Inc. (Star) entered into a voyage charter party with CITGO Asphalt Refining Company (CARCO). That contract included a safe-berth clause that provided: "SAFE BERTHING - SHIFTING. The vessel shall load and discharge at any safe place or wharf, or alongside vessels or lighters reachable on her arrival, which shall be designated and procured by the Charterer, provided the Vessel can proceed thereto, lie at, and depart therefrom always safely afloat, any lighterage being at the expense, risk and peril of the Charterer." Addendum to Brief for Petitioners 8a. I agree with the majority that we must interpret the safe-berth clause "by [its] terms and consistent with the intent of the parties." Norfolk Southern R. Co. v. James N. Kirby, Pty Ltd., 543 U.S. 14, 31, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004). Unlike the majority, however, I conclude that the plain meaning of the safe-berth clause does not include a warranty of safety. A The safe-berth clause sets out the rights and obligations of the vessel master and the charterer. The clause requires the vessel master to "load and discharge at [a] safe place or wharf," but it also gives the master the right to refuse to proceed if the vessel cannot "lie at, and depart therefrom always safely afloat." Addendum to Brief for Petitioners 8a. The charterer has the right to "designat[e]" a "safe place or wharf " for discharge. Ibid. That right, however, must be exercised by the charterer, see ibid. (using mandatory language), and the act of designation must be made in good faith, see Restatement (Second) of Contracts § 205 (1979). The right to designate is limited to places that the vessel can reach, with the charterer bearing the "expense, risk and peril" of any "lighterage" (i.e., transfer of cargo by means of another vessel) resulting from its selection. Addendum to Brief for Petitioners 8a. As the leading admiralty treatise succinctly explains, the safe-berth clause provides that "if the port or the berth is unsafe, the master is excused from taking his ship in, and the charterer must bear the extra expense... entailed by [a proper] refusal" of its selected place of discharge. G. Gilmore & C. Black, Law of Admiralty § 4-4, p. 204 (2d ed. 1975). This reading is consistent with this Court's prior decisions. The Court has interpreted safe-berth clauses as providing a limit on the "right to select a dock." Mencke v. Cargo of Java Sugar, 187 U.S. 248, 253, 23 S.Ct. 86, 47 L.Ed. 163 (1902) ; see also The Gazelle and Cargo, 128 U.S. 474, 485-486, 9 S.Ct. 139, 32 L.Ed. 496 (1888) (holding that the right of selection is limited by the terms of the contract). And it has concluded that, if a charterer selects a place of discharge that cannot be safely reached, the charterer is liable for lighterage expenses. Mencke, 187 U.S. at 253-254, 23 S.Ct. 86. Thus, under the plain language of the safe-berth clause, the vessel master has a duty of discharge and right of refusal, while the charterer has a right of selection and duty to pay for lighterage. B The majority does not disagree that the safe-berth clause confers these duties and rights. Quite the opposite. It recognizes our precedents as embracing this understanding. Ante, at ----. The majority concludes, however, that in addition to the rights of selection and refusal, the language of the safe-berth clause "unambiguously" establishes a warranty of safety by the charterer. Ante, at ----. With this, I cannot agree. 1 The majority first concludes that the safe-berth clause contains an "express prescription of a warranty of safety." Ante, at ----; see also ante, at ----. This assertion finds no support whatsoever in the plain language of the clause. First of all, the contract between Star and CARCO contains no express warranty of safety by the charterer, though the parties repeatedly used express language to create warranties elsewhere in the contract. See Addendum to Brief for Petitioners 26a ("Charterer's warrant..."), 30a ("Owners warrant..."), ibid. ("Owner warrants..."), 31a ("Owner warrants..."), 41a ("Owner warrants..."), 42a ("Owner warrants..."), 43a ("Owner warrants..."), 44a ("Owner warrants..."), 45a ("Owner warrants..."). In contrast, they did not state that the charterer "warrants" the safety of the place of discharge in the safe-berth clause. As the majority obliquely recognizes-when trying to rebut a different argument-"[t]hat omission is particularly notable in context: Where the parties intended to [create warranties] elsewhere in the charter party, they did so expressly." Ante, at ----. "That the parties did not do so in the safe-berth clause specifically is... proof that they did not intend for such a... limitation to inhere impliedly." Ante, at ---- - ----. But even setting aside this evidence of the parties' intent (as the majority does), the safe-berth clause contains no language that can be construed to create a warranty of safety. Nor does the clause so much as suggest that the charterer is liable for all damages arising out of unsafe port conditions. In fact, the trade association that promulgated the ASBATANKVOY form used in this case specifically acknowledged that the language of "the clause does not specify whether the charterer absolutely warrants the safety of the berth." Brief for Maritime Law Association of the United States and the Association of Ship Brokers & Agents (USA) Inc. as Amici Curiae on Pet. for Cert. 19 (emphasis added). Notwithstanding this, the majority states that the clause "requires the charterer to designate a'safe' berth" and that requirement "binds the charterer to a warranty of safety." Ante, at ----. But certainly not every obligation in a contract is a warranty. See Brooks, Tarlton, Gilbert, Douglas & Kressler v. United States Fire Ins. Co., 832 F.2d 1358, 1375, n. 14 (CA5 1987). Parties often agree to obligations that govern only their conduct without making any assurances as to an ultimate result. For example, "[a] promise to repair parts of [a] powertrain for six years is a promise that the manufacturer will behave in a certain way, not a warranty that the vehicle will behave in a certain way." Cosman v. Ford Motor Co., 285 Ill.App.3d 250, 257, 220 Ill.Dec. 790, 674 N.E.2d 61, 66 (1996). The majority does not confront, or even acknowledge, this distinction. Instead, it indifferently conflates a duty to take a certain action-"designat[e]" a wharf understood to be safe-with a warranty guaranteeing a certain result-the ultimate safety of the berth. By conflating an action with an outcome, the majority converts every obligation tangentially related to safety into a warranty of safety. Consider Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Brennan delivered the opinion of the Court. The United States brought this action in the United States District Court for the Middle District of Georgia against the members of the Board of Registrars and certain Deputy Registrars of Terrell County, Georgia. Its complaint charged that the defendants had through various devices, in the administration of their offices, discriminated on racial grounds against Negroes who desired to register to vote in elections conducted in the State. The complaint sought an injunction against the continuation of these discriminatory practices, and other relief. The action was founded upon R. S. § 2004, as amended by § 131 of the Civil Rights Act of 1957, 71 Stat. 637, 42 U. S. C. § 1971. Subsections (a) and (c), which are directly involved, provide: “(a) All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude ; any constitution, law, custom, usage, or regulation of any Státe or Territory, or by or under its authority, to the contrary notwithstanding. “(c) Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice which would deprive any other person of any right or privilege secured by subsection (a) . . . , the Attorney Gen-, eral may institute for the United States, or in the name of the United States, a civil action or other proper proceeding for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order. . . .” On the defendants’ motion, the District Court dismissed the complaint, holding that subsection (c) was unconstitutional. 172 F. Supp. 552. The court held that the statutory language quoted allowed the United States to enjoin purely private action designed to deprive citizens of the right to vote on account of their race or color. Although the complaint in question involved only official action, the court ruled that since, in its opinion, the statute, on its face was susceptible of application beyond the scope permissible under the Fifteenth Amendment, it was to be considered unconstitutional in all its applications. The Government appealed directly to this Court and we postponed the question of jurisdiction to the hearing of the case on the merits. 360 U. S. 926. Under the terms of 28 U. S. C. § 1252, the case is properly here on appeal since the basis of the decision below in fact was that the Act of Congress was unconstitutional, no matter what the contentions of the parties might be as to what its proper basis should have been. The very foundation of the power of the federal courts to declare Acts of Congress unconstitutional lies in the power and duty of those courts to decide cases and controversies properly before them. This was made patent in the first case here exercising that power — “the gravest and most delicate duty that this Court is called on to perform.” Marbury v. Madison, 1 Cranch 137, 177-180. This Court, as is the case with all federal courts, “has no jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S. 33, 39. Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. United States v. Wurzbach, 280 U. S. 396; Heald v. District of Columbia, 259 U. S. 114, 123; Yazoo & Mississippi Valley R. Co. v. Jackson Vinegar Co., 226 U. S. 217; Collins v. Texas, 223 U. S. 288, 295-296; New York ex rel. Hatch v. Reardon, 204 U. S. 152, 160-161. Cf. Voeller v. Neilston Warehouse Co., 311 U. S. 531, 537; Carmichael v. Southern Coal & Coke Co., 301 U. S. 495, 513; Virginian R. Co. v. System Federation, 300 U. S. 515, 558; Blackmer v. United States, 284 U. S. 421, 442; Roberts & Schaefer Co. v. Emmerson, 271 U. S. 50, 54-55; Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571, 576; Tyler v. Judges of the Court of Registration, 179 U. S. 405; Ashwander v. TVA, 297 U. S. 288, 347-348 (concurring opinion). In Barrows v. Jackson, 346 U. S. 249, this Court developed various reasons for this rule. Very significant is the incontrovertible proposition that it “would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation.” Id., at 256. The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thus imagined. The Court further pointed to the fact that a limiting construction could be given to the statute by the court responsible for its construction if an application of doubtful constitutionality were in fact concretely presented. We might add that application of this rule frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy. The District Court relied on, and appellees urge here, certain cases which are said to be inconsistent with this rule and with its closely related corollary that a litigant may only assert his own constitutional rights or immunities. In many of their applications, these are not principles ordained by the Constitution, but constitute rather “rule[s] of practice,” Barrows v. Jackson, supra, at 257, albeit weighty ones; hence some exceptions to them where there are weighty countervailing policies have been and are recognized. For example, where, as a result of the very litigation in question, the constitutional rights of one not a party would be impaired, and where he. has no effective way to preserve them himself, the Court may consider those rights as before it. N. A. A. C. P. v. Alabama, 357 U. S. 449, 459-460; Barrows v. Jackson, supra. This Court has indicated that where the application of these rules would itself have an inhibitory effect on freedom of speech, they may not be applied. See Smith v. California, 361 U. S. 147, 151; Thornhill v. Alabama, 310 U. S. 88, 97-98. Perhaps cases can be put where their application to a criminal statute would necessitate such a revision of its text as to create a situation in which the statute no longer gave an intelligible warning of the con.duct it prohibited. See United States v. Reese, 92 U. S. 214, 219-220; cf. Winters v. New York, 333 U. S. 507, 518-520. And the rules’ rationale may disappear where the statute in question' has already been declared unconstitutional in the vast majority of its intended applications, and it can fairly be said that it was not intended to stand as valid, on the basis of fortuitous circumstances, only in a fraction of the cases it was originally designed to cover. See Butts v. Merchants & Miners Transportation Co., 230 U. S. 126. The same situation is presented when a state statute comes conclusively pronounced by a state court as having an otherwise valid provision or application inextricably tied up with an invalid one, see Dorchy v. Kansas, 264 U. S. 286, 290; or possibly in that rarest of cases where this Court can justifiably think itself able confidently to discern that Congress would not have desired its legislation to stand at all unless it could validly stand in its every application. Cf. The TradeMark Cases, 100 U. S. 82, 97-98; The Employers’ Liability Cases, 207 U. S. 463, 501. But we see none of the countervailing considerations suggested by these examples, or any other countervailing consideration, as warranting the District Court’s action here in considering the constitutionality of the Act in applications not before it. This case is rather the most typical one for application of the rules we have discussed. There are, to be sure, cases where this Court has not applied with perfect consistency these rules for avoiding unnecessary constitutional determinations, and we do not mean' to say that every case we have cited for various exceptions to their application was considered to turn on the exception stated, or is perfectly justified by it. The District Court relied primarily on United States v. Reese, supra. As we have indicated, that decision may have drawn support from the assumption that if the Court had not passed on the statute’s validity in toto it would have left standing a criminal statute incapable of giving fair warning of its prohibitions. But to the extent Reese did depend oh an approach inconsistent with what we think the better one and the one established by the weightiest of the subsequent cases, we cannot follow it here. Accordingly, if the complaint here called for an application of the statute clearly constitutional under the Fifteenth Amendment, that should have been an end to the question of constitutionality. And as to the application of the statute called for by the complaint, whatever precisely may be the reach of the Fifteenth Amendment, it is enough to say that the conduct charged — discrimination by state officials, within the course of their official duties, against the voting rights of United States citizens, on grounds of race or color — is certainly, as “state action” and the clearest form of it, subject to the ban of that Amendment, and that legislation designed to deal with such discrimination is “appropriate legislation” under it. It makes no difference that the discrimination in question, if state action, is also violative of state law. Snowden v. Hughes, 321 U. S. 1, 11. The appellees contend that since Congress has provided in subsection (d) of the statutory provision in question here that the District Courts shall exercise their jurisdiction “without regard to whether the party aggrieved shall have exhausted any administrative or other remedies that may be provided by law,” and since such remedies were not exhausted here, appellees’ action cannot be ascribed to the State. The argument is that the ultimate voice of the State has not spoken, since higher echelons of authority in the State might revise the appellees’ action. It is, however, established as a fundamental proposition that every state official, high and low, is bound by the Fourteenth and Fifteenth Amendments. See Cooper v. Aaron, 358 U. S. 1, 16-19. We think this Court has already made it clear that it follows from this that Congress has the power to provide for the correction of the constitutional violations of every such official without regard to the presence of other authority in the State that might possibly revise their actions. The appellees can draw no support from the expressions in Barney v. City of New York, 193 U. S. 430, on which they so much rely. The authority of those expressions has been “so restricted by our later decisions,” see Snowden v. Hughes, supra, at 13, that Barney must be regarded as haying “been worn away by the erosion of time,” Tigner v. Texas, 310 U. S. 141, 147, and of contrary authority. See Raymond v. Chicago Union Traction Co., 207 U. S. 20, 37; Home Tel. & Tel. Co. v. Los Angeles, 227 U. S. 278, 283-289, 294; Iowa-Des Moines Nat. Bank v. Bennett, 284 U. S. 239, 247; Snowden v. Hughes, supra; Screws v. United States, 325 U. S. 91, 107-113, 116. Cf. United States v. Classic, 313 U. S. 299, 326. It was said of Barney’s doctrine in Home Tel. & Tel. Co. v. Los Angeles, supra, at 284, by Mr. Chief Justice White: “[its] enforcement . . . would . . . render impossible the performance of the duty with which the Federal courts are charged under the Constitution.” The District Court seems to us to have recognized that the complaint clearly charged a violation of the Fifteenth Amendment and of the statute, and that the statute, if applicable only to this class of cases, would unquestionably be valid legislation under that Amendment. We think that under the rules we have stated, that court should then have gone no further and should have upheld the Act as' applied in the present action, and that its dismissal of the complaint was error. The appellees urge alternative grounds on which they seek to support the judgment of the District Court dismissing the complaint. We do not believe these grounds are well taken. It is urged that it is beyond the power of Congress to authorize the United States to bring this action in support of private constitutional rights. But there is the highest public interest in the due observance of all the constitutional guarantees, including those that bear the most directly on private rights, and .we think it perfectly competent for Congress to authorize the United States to be the guardian of that public interest in a suit for injunctive relief. See United Steelworkers v. United States, 361 U. S. 39, 43, and cases cited. Appellees raise questions as to the scope of the equitable discretion reserved to the courts in suits under § 2004. Cf. id., at 41-42. We need not define the scope of the discretion of a District Court in proceedings of this nature, because, exercising a traditional equity discretion, the court below declined to dismiss the complaint on that ground, and we do not discern any basis in the present posture of the case for any contention that it has abused its discretion. Questions as to the relief sought by the United States are posed, but remedial issues are hardly properly presented at this stage in the litigation. The parties. have engaged in much discussion concerning the ultimate scope in which Congress intended this legislation to apply, and concerning its constitutionality under the Fifteenth Amendment .in these various applications. We shall not compound the error we have found in the District Court’s judgment by intimating any views on either matter. Reversed. Subsection (a) was originally § 1 of the Enforcement Act of May 31, 1870, c. 114, 16 Stat. 140, and was brought forward as R. S. § 2004. The remaining subsections were added by the 1957 legislation. Subsection (b) forbids various forms of intimidation and coercion in respect of voting for federal elective officers, and the enforcement provisions of subsection (c) likewise apply to it; but subsection (b) is not involved in this litigation. Holmes, J., in Blodgett v. Holden, 275 U. S. 142, 148. Cf. Mountain Timber Co. v. Washington, 243 U. S. 219, 234. But a State’s determination of the class of persons who can invoke the protection of provisions of the Federal Constitution has been held not conclusive here. Tileston v. Ullman, 318 U. S. 44. Certainly it cannot be said that the sort of action proceeded against here, and validly reachable under the Constitution (see pp. 25-26, infra), was so small and inessential a part of the evil Congress was concerned about in the statute that these defendants should be permitted to make an attack on the statute generally. Subsection (d) and innumerable items in the legislative history show Congress’ particular concern with the sort of action charged here. See, e. g., Hearings before the Subcommittee on Constitutional Rights of the Committee on the Judiciary, United States Senate, on Proposals to Secure, Protect, and Strengthen Civil Rights of Persons under the Constitution and Laws of the United States, 85th Cong., 1st Sess., pp. 4-7, 36-37, 77, 81, 189, 205, 293, 300; Hearings before Subcommittee No. 5 of the Committee on the Judiciary, House of Representatives, on Miscellaneous Bills Regarding the Civil Rights of Persons within the Jurisdiction of the United States, 85th Cong., 1st Sess., pp. 656, 1220; 103 Cong. Rec. 8705, 12149, 12898, 13126, 13732. Nor can there be any serious contention that the statute, as a civil enactment, would fail to give adequate notice of the conduct it validly proscribed, even if certain applications of it were to be deemed unconstitutional. Criminal proceedings under the statute must depend on violation of a restraining order embracing the party charged. Cf., e. g., Illinois Central R. Co. v. McKendree, 203 U. S. 514; United States v. Ju Toy, 198 U. S. 253, 262-263. Barney was a property owner’s action to enjoin state officials from construction of a rapid transit tunnel in a particular place. The suit was brought directly under the Fourteenth Amendment in federal court, and it was averred that the proposed action of the state officials was not authorized under state law. It does not appear that the complainant alleged that higher state administrative echelons were indisposed to halt the unauthorized actions or that the State offered no remedy at all to a property owner threatened with interference with his property by state officials acting without authority. There was not presented any specific federal statute expressly authorizing federal judicial intervention with matters in this posture. Many of these contentions are raised by what appellees style a “cross-appeal.” Notice of cross-appeal was filed in the District Court, but the cross-appeal was not docketed here. However, since the judgment of the District Court awarded appellees all the relief they requested (despite rejecting most of their contentions, except the central one), no cross-appeal was necessary to bring these contentions before us if they can be considered otherwise. They would simply be alternative grounds on which the judgment below could be supported. In view of the broad nature of § 1252, which seems to indicate a desire of Congress that the whole case come up (contrast 18 U. S. C. § 3731, United States v. Borden Co., 308 U. S. 188, 193), we have the power to pass on these other questions, and since the District Court expressed its views on most of them, we also deem it appropriate to do so. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Per Curiam. The petition for certiorari is granted. The petition presents this question: “Whether the absolute immunity from defamation suits accorded officials of the Government with respect to acts done within the scope of their official authority, extends to statements to the press by high policy-making officers, below cabinet or comparable rank, concerning matters committed by law to their control or supervision.” In the District Court and the Court of Appeals the litigation was not so confined. By his motion for a directed verdict and requested instructions petitioner also presented to the District Court the defense of qualified privilege. On appeal to the Court of Appeals petitioner, in his brief, raised only the question of absolute immunity, but on reconsideration he urged the court also to pass on the defense of qualified privilege. This that court refused to do on the ground that petitioner, because of the position he had initially taken on the appeal, had waived the defense. In so holding, the court relied on its Rule 17 (c)(7), requiring an appellant to set forth in his brief a statement of the points on which he intends to rely, and Rule 17 (i), which provides that “Points not presented according to the rules of the court, will be disregarded, though the court, at its option, may notice and pass upon a plain error not pointed out or relied upon.” 244 F. 2d 767. The scope of the litigation in the Court of Appeals cannot lessen this Court’s duty to confine itself to the proper exercise of its jurisdiction and the appropriate scope of judicial review. Thus, an advisory opinion cannot be extracted from a federal court by agreement of the parties, see Swift & Co. v. Hocking Valley R. Co., 243 U. S. 281, 289, and no matter how much they may favor the settlement of an important question of constitutional law, broad considerations of the appropriate exercise of judicial power prevent such determinations unless actually compelled by the litigation before the Court. United States v. C. I. 0., 335 U. S. 106, 110. Likewise, “Courts should avoid passing on questions of public law even short of constitutionality that are not immediately pressing. Many of the same reasons are present which impel them to abstain from adjudicating constitutional claims against a statute before it effectively and presently impinges on such claims.” Eccles v. Peoples Bank, 333 U. S. 426, 432. Especially in a case involving on the one hand protection of the reputation of individuals, and on the other the interest of the public in the fullest freedom of officials to make disclosures on matters within the scope of their public duties, this Court should avoid rendering a decision beyond the obvious requirements of the record. In the present case a ground far narrower than that on which the Court of Appeals rested its decision, the defense of qualified privilege, was consistently pressed in the District Court and in fact urged in the Court of Appeals itself. In these circumstances we think that the broad requirements of judicial power and its proper exercise should lead to consideration of the defense of qualified privilege. To that end, the judgment of the Court of Appeals is vacated, and the case remanded to that Court with directions to pass upon petitioner’s claim of a qualified privilege. Mr. Justice Black, with whom The Chief Justice joins, agrees with the disposition of this case as expressed in the last paragraph. Mr. Justice Brennan would grant the petition and consider the question presented. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

C

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Kagan delivered the opinion of the Court. Almost a decade ago, a state child protective services worker and a county deputy sheriff interviewed a girl at her elementary school in Oregon about allegations that her father had sexually abused her. The girl’s mother subsequently sued the government officials on the child’s behalf for damages under Rev. Stat. § 1979,42 U. S. C. § 1983, claiming that the interview infringed the Fourth Amendment. The United States Court of Appeals for the Ninth Circuit agreed, ruling that the officials had violated the Constitution by failing to obtain a warrant to conduct the interview. But the Court of Appeals further held that qualified immunity shielded the officials from monetary liability because the constitutional right at issue was not clearly established under existing law. The two officials sought this Court’s review of the Ninth Circuit’s ruling on the Fourth Amendment. We granted their petitions to examine two questions. First, may government officials who prevail on grounds of qualified immunity obtain our review of a court of appeals’ decision that their conduct violated the Constitution? And second, if we may consider cases in this procedural posture, did the Ninth Circuit correctly determine that this interview breached the Fourth Amendment? We conclude that this Court generally may review a lower court’s constitutional ruling at the behest of a government official granted immunity. But we may not do so in this case for reasons peculiar to it. The case has become moot because the child has grown up and moved across the country, and so will never again be subject to the Oregon in-school interviewing practices whose constitutionality is at issue. We therefore do not reach the Fourth Amendment question in this case. In line with our normal practice when mootness frustrates a party’s right to appeal, see United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950), we vacate the part of the Ninth Circuit’s opinion that decided the Fourth Amendment issue. I In February 2003, police arrested Nimrod Greene for suspected sexual abuse of a young boy unrelated to him. During the investigation of that offense, the boy’s parents told police that they suspected Greene of molesting his 9-year-old daughter S. G. The police reported this information to the Oregon Department of Human Services, which assigned petitioner Bob Camreta, a child protective services caseworker, to assess S. G.’s safety. Several days later, Camreta, accompanied by petitioner James Alford, a Deschutes County deputy sheriff, went to S. G.’s elementary school and interviewed her about the allegations. Camreta and Alford did not have a warrant, nor had they obtained parental consent to conduct the interview. Although S. G. at first denied that her father had molested her, she eventually stated that she had been abused. Greene was indicted and stood trial for sexually abusing S. G., but the jury failed to reach a verdict and the charges were later dismissed. Respondent Sarah Greene, S. G.’s mother, subsequently sued Camreta and Alford on S. G.’s behalf for damages under 42 U. S. C. § 1983, which authorizes suits against state officials for violations of constitutional rights. S. G. alleged that the officials’ in-school interview had breached the Fourth Amendment’s proscription on unreasonable seizures. The District Court granted summary judgment to Camreta and Alford, and the Ninth Circuit affirmed. The Court of Appeals first ruled that the interview violated S. G.’s rights because Camreta and Alford had “seize[d] and interrogate[d] S. G. in the absence of a warrant, a court order, exigent circumstances, or parental consent.” 588 F. 3d 1011, 1030 (2009) (footnote omitted). But the court further held that the officials were entitled to qualified immunity from damages liability because no clearly established law had warned them of the illegality of their conduct. Id., at 1031-1033. The Ninth Circuit explained why it had ehosen to rule on the merits of the constitutional claim, rather than merely hold that the officials were immune from suit. By addressing the legality of the interview, the court said, it could “provide guidance to those charged with the difficult task of protecting child welfare within the confines of the Fourth Amendment.” Id., at 1022. That guidance came in no uncertain terms: “[G]overnment officials investigating allegations of child abuse,” the court warned, “should cease operating on the assumption that a ‘special need’ automatically justifies dispensing with traditional Fourth Amendment protections in this context.” Id., at 1033. Although the judgment entered was in their favor, Camreta and Alford petitioned this Court to review the Ninth Circuit’s ruling that their conduct violated the Fourth Amendment. S. G. declined to cross-petition for review of the decision that the officials have immunity. We granted certiorari. 562 U. S. 960 (2010). II We first consider our ability to act on a petition brought by government officials who have won final judgment on grounds of qualified immunity, but who object to an appellate court’s ruling that they violated the plaintiff’s constitutional rights. Camreta and Alford are, without doubt, prevailing parties. The Ninth Circuit’s decision shielded them from monetary liability, and S. G. chose not to contest that ruling. So whatever else follows, they will not have to pay S. G. the damages she sought. The question we confront is whether we may nonetheless review the Court of Appeals’ holding that the officials violated the Constitution. The statute governing this Court’s jurisdiction authorizes us to adjudicate a case in this posture, and S. G. does not contend otherwise. The relevant provision confers unqualified power on this Court to grant certiorari “upon the petition of any party.” 28 U. S. C. § 1254(1) (emphasis added). That language covers petitions brought by litigants who have prevailed, as well as those who have lost, in the court below. See E. Gressman, K. Geller, S. Shapiro, T. Bishop, & E. Hartnett, Supreme Court Practice 87 (9th ed. 2007) (hereinafter Stern & Gressman). S. G., however, alleges two impediments to our exercise of statutory authority here, one constitutional and the other prudential. First, she claims that Article III bars review because petitions submitted by immunized officials present no case or controversy. See Brief for Respondent 31-39. Second, she argues that our settled practice of declining to hear appeals by prevailing parties should apply with full force when officials have obtained immunity. ’ See id., at 24-27. We disagree on both counts. A Article III of the Constitution grants this Court authority to adjudicate legal disputes only in the context of “Cases” or “Controversies.” To enforce this limitation, we demand that litigants demonstrate a “personal stake” in the suit. Summers v. Earth Island Institute, 555 U. S. 488, 493 (2009) (internal quotation marks omitted); see also United States Parole Comm’n v. Geraghty, 445 U. S. 388, 395-397 (1980). The party invoking the Court’s authority has such a stake when three conditions are satisfied: The petitioner must show that he has “suffered an injury in fact” that is caused by “the conduct complained of” and that “will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560-561 (1992) (internal quotation marks omitted). And the opposing party also must have an ongoing interest in the dispute, so that the case features “that concrete adverseness which sharpens the presentation of issues.” Los Angeles v. Lyons, 461 U. S. 95, 101 (1983) (internal quotation marks omitted). To ensure a case remains “fit for federal-court adjudication,” the parties must have the necessary stake not only at the outset of litigation, but throughout its course. Arizonans for Official English v. Arizona, 520 U. S. 43, 67 (1997). We have previously recognized that an appeal brought by a prevailing party may satisfy Article Ill’s case-or-controversy requirement. See Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326, 332-336 (1980). Indeed, we have twice before allowed a party for whom judgment was entered to challenge an unfavorable lower court ruling. See ibid.; Electrical Fittings Corp. v. Thomas & Betts Co., 307 U. S. 241 (1939). In that context as in others, we stated, the critical question under Article III is whether the litigant retains the necessary personal stake in the appeal. Deposit Guaranty, 445 U. S., at 334. As we will explain, a court will usually invoke rules of “federal appellate practice” to decline review of a prevailing party's challenge even when he has the requisite stake. Id., at 333; see infra, at 703-704. But in such a case, Article III is not what poses the bar; these rules of practice “d[o] not have [their] source in the jurisdictional limitations” of the Constitution. Deposit Guaranty, 445 U. S., at 333-334. So long as the litigants possess the personal stake discussed above, an appeal presents a case or controversy, no matter that the appealing party was the prevailing party below. This Article III standard often will be met when immunized officials seek to challenge a ruling that their conduct violated the Constitution. That is not because a court has made a retrospective judgment about the lawfulness of the officials' behavior, for that judgment is unaccompanied by any personal liability. Rather, it is because the judgment may have prospective effect on the parties. The court in such a case says: “Although this official is immune from damages today, what he did violates the Constitution and he or anyone else who does that thing again will be personally hable.” If the official regularly engages in that conduct as part of his job (as Camreta does), he suffers injury caused by the adverse constitutional ruling. So long as it continues in effect, he must either change the way he performs his duties or risk a meritorious damages action. Cf. id., at 337-338 (discussing prevailing party’s stake in a ruling’s prospective effects). Only by overturning the ruling on appeal can the official gain clearance to engage in the conduct in the future. He thus can demonstrate, as we demand, injury, causation, and redressability. And conversely, if the person who initially brought the suit may again be subject to the challenged conduct, she has a stake in preserving the court’s holding. See Erie v. Pap’s A. M., 529 U. S. 277, 287-289 (2000); Honig v. Doe, 484 U. S. 305, 318-323 (1988); cf. Lyons, 461 U. S., at 111 (examining whether the plaintiff had shown “a sufficient likelihood that he will again be wronged in a similar way”). Only if the ruling remains good law will she have ongoing protection from the practice. We therefore reject S. G.’s view that Article III bars us from adjudicating any and all challenges brought by government officials who have received immunity below. That the victor has filed the appeal does not deprive us of jurisdiction. The parties in such eases may yet have a sufficient “interest in the outcome of [a litigated] issue” to present a case or controversy. Deposit Guaranty, 445 U. S., at 336, n. 7. B Article III aside, an important question of judicial policy remains. As a matter of practice and prudence, we have generally declined to consider cases at the request of a prevailing party, even when the Constitution allowed us to do so. See, e. g., Gunn v. University Comm. to End War in Viet Nam, 399 U. S. 383, 390, n. 5 (1970); New York Telephone Co. v. Maltbie, 291 U. S. 645, 646 (1934) (per curiam); see also Bunting v. Mellen, 541 U. S. 1019, 1023 (2004) (Scalia, J., dissenting from denial of certiorari) (“[0]ur practice reflects a ‘settled refusal’ to entertain an appeal by a party on an issue as to which he prevailed” (quoting Stern & Gressman 79 (8th ed. 2002))). Our resources are not well spent superintending each word a lower court utters en route to a final judgment in the petitioning party’s favor. See California v. Rooney, 483 U. S. 307, 311 (1987) (per curiam) (“[Tjhat the Court of Appeal reached its decision through analysis different than this Court might have used does not make it appropriate... for the prevailing party to request us to review it”). We therefore have adhered with some rigor to the principle that “[tjhis Court reviews judgments, not statements in opinions.” Ibid, (internal quotation marks omitted). On the few occasions when we have departed from that principle, we have pointed to a “policy reaso[n]... of sufficient importance to allow an appeal” by the winner below. Deposit Guaranty, 445 U. S., at 336, n. 7. We think just such a reason places qualified immunity eases in a special category when it comes to this Court’s review of appeals brought by winners. The constitutional determinations that prevailing parties ask us to consider in these cases are not mere dicta or “statements in opinions.” Rooney, 483 U. S., at 311 (internal quotation marks omitted); see Bunting, 541 U. S., at 1023 (Scalia, J., dissenting from denial of certiorari) (stating that such a determination is “not mere dictum in the ordinary sense”). They are rulings that have a significant future effect on the conduct of public officials — both the prevailing parties and their co-workers — and the policies of the government units to which they belong. See supra, at 702-703. And more: they are rulings self-consciously designed to produce this effect, by establishing controlling law and preventing invocations of immunity in later cases. And still more: they are rulings designed this way with this Court’s permission, to promote clarity — and observance — of constitutional rules. We describe in more detail below these features of the qualified immunity world and why they came to be. We hold that taken together, they support bending our usual rule to permit consideration of immunized officials’ petitions. To begin, then, with the nature of these suits: Under § 1983 (invoked in this case) and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), a plaintiff may seek money damages from government officials who have violated her constitutional or statutory rights. But to ensure that fear of liability will not “unduly inhibit officials in the discharge of their duties,” Anderson v. Creighton, 483 U. S. 635, 638 (1987), the officials may claim qualified immunity; so long as they have not violated a “clearly established” right, they are shielded from personal liability, Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). That means a court can often avoid ruling on the plaintiff’s claim that a particular right exists. If prior case law has not clearly settled the right, and so given officials fair notice of it, the court can simply dismiss the claim for money damages. The court need never decide whether the plaintiff’s claim, even though novel or otherwise unsettled, in fact has merit. And indeed, our usual adjudicatory rules suggest that a court should forbear resolving this issue. After all, a “longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” Lyng v. Northwest Indian Cemetery Protective Assn., 485 U. S. 439, 445 (1988); see also Ashwander v. TVA, 297 U. S. 288, 346-347 (1936) (Brandéis, J., concurring). In this category of qualified immunity cases, a court can enter judgment without ever ruling on the (perhaps difficult) constitutional claim the plaintiff has raised. Small wonder, then, that a court might leave that issue for another day. But we have long recognized that this day may never come — that our regular policy of avoidance sometimes does not fit the qualified immunity situation because it threatens to leave standards of official conduct permanently in limbo. County of Sacramento v. Lewis, 523 U. S. 833, 841, n. 5 (1998). Consider a plausible but unsettled constitutional claim asserted against a government official in a suit for money damages. The court does not resolve the claim because the official has immunity. He thus persists in the challenged practice; he knows that he can avoid liability in any future damages action, because the law has still not been clearly established. Another plaintiff brings suit, and another court both awards immunity and bypasses the claim. And again, and again, and again. So the moment of decision does not arrive. Courts fail to clarify uncertain questions, fail to address novel claims, fail to give guidance to officials about how to comply with legal requirements. See, e. g., ibid,.; Wilson v. Layne, 526 U. S. 603, 609 (1999). Qualified immunity thus may frustrate “the development of constitutional precedent” and the promotion of law-abiding behavior. Pearson v. Callahan, 555 U. S. 223, 237 (2009). For this reason, we have permitted lower courts to avoid avoidance — that is, to determine whether a right exists before examining whether it was clearly established. See, e. g., ibid.; Lewis, 523 U. S., at 841, n. 5. Indeed, for some time we required courts considering qualified immunity claims to first address the constitutional question, so as to promote “the law's elaboration from case to case.” Saucier v. Katz, 533 U. S. 194, 201 (2001). More recently, we have left this matter to the discretion of lower courts, and indeed detailed a range of circumstances in which courts should address only the immunity question. See Pearson, 555 U. S., at 236-242. In general, courts should think hard, and then think hard again, before turning small eases into large ones. But it remains true that following the two-step sequence— defining constitutional rights and only then conferring immunity — is sometimes beneficial to clarify the legal standards governing public officials. Id., at 236; see id., at 236-242 (discussing factors courts should consider in making this determination). Here, the Court of Appeals followed exactly this two-step process, for exactly the reasons we have said may in select circumstances make it “advantageous.” Id., at 242. The court, as noted earlier, explained that it was “addressing] both prongs of the qualified immunity inquiry... to provide guidance to those charged with the difficult task of protecting child welfare within the confines of the Fourth Amendment.” 588 F. 3d, at 1022. To that end, the court adopted constitutional standards to govern all in-school interviews of suspected child abuse victims. See id., at 1030. And the court specifically instructed government officials to follow those standards going forward — to “cease operating on the assumption” that warrantless interviews are permitted. See id., at 1033. With the law thus clearly established, officials who conduct this kind of interview will not receive immunity in the Ninth Circuit. And the State of Oregon has done just what we would expect in the wake of the court's decision: It has provided revised legal advice, consonant with the Ninth Circuit’s ruling, to child protective services workers wishing to interview children in schools. See Tr. of Oral Arg. 14. The court thus accomplished what it set out to do: settle a question of constitutional law and thereby guide the conduct of officials. Given its purpose and effect, such a decision is reviewable in this Court at the behest of an immunized official. No mere dictum, a constitutional ruling preparatory to a grant of immunity creates law that governs the official’s behavior. If our usual rule pertaining to prevailing parties applied, the official would “fac[e] an unenviable choice”: He must either acquiesce in a ruling he had no opportunity to contest in this Court, or “defy the views of the lower court, adhere to practices that have been declared illegal, and thus invite new suits and potential punitive damages.” Pearson, 555 U. S., at 240-241 (internal quotation marks and brackets omitted). And if our usual bar on review applied, it would undermine the very purpose served by the two-step process, “which is to clarify constitutional rights without undue delay.” Bunting, 541 U. S., at 1024 (Scalia, J., dissenting from denial of certiorari). This Court, needless to say, also plays a role in clarifying rights. Just as that purpose may justify an appellate court in reaching beyond an immunity defense to decide a constitutional issue, so too that purpose may support this Court in reviewing the correctness of the lower court’s decision. We emphasize, however, two limits of today’s holding. First, it addresses only our own authority to review cases in this procedural posture. The Ninth Circuit had no occasion to consider whether it could hear an appeal from an immunized official: In that court, after all, S. G. appealed the judgment in the officials’ favor. We therefore need not and do not decide if an appellate court, too, can entertain an appeal from a party who has prevailed on immunity grounds. Second, our holding concerns only what this Court may review; what we actually will choose to review is a different matter. That choice will be governed by the ordinary principles informing our decision whether to grant certiorari—a “power [we]... sparingly exereis[e].” Forsyth v. Hammond, 166 U. S. 506, 514 (1897); see also id., at 514-515 (this Court grants review “only when the circumstances of the case satisfy us that the importance of the question involved, the necessity of avoiding conflict [in the lower courts], or some matter affecting the interests of this nation... demands such exercise”); this Court’s Rule 10. Our decision today does no more than exempt one special category of cases from our usual rule against considering prevailing parties’ petitions. Going forward, we will consider these petitions one by one in accord with our usual standards. Ill Although we reject S. G.’s arguments for dismissing this case at the threshold, we find that a separate jurisdictional problem requires that result: This case, we conclude, is moot. As we explained above, supra, at 702-703, in a dispute of this kind, both the plaintiff and the defendant ordinarily retain a stake in the outcome. That is true of one defendant here: Camreta remains employed as a child protective services worker, so he has an interest in challenging the Ninth Circuit’s ruling requiring him to obtain a warrant before conducting an in-school interview. But S. G. can no longer claim the plaintiff’s usual stake in preserving the court’s holding because she is no longer in need of any protection from the challenged practice. After we granted certiorari, we discovered that S. G. has “moved to Florida, and ha[s] no intention of relocating back to Oregon.” Brief for Respondent 13, n. 13. What is more, S. G. is now only months away from her 18th birthday — and, presumably, from her high school graduation. See id., at 31. S. G. therefore cannot be affected by the Court of Appeals' ruling; she faces not the slightest possibility of being seized in a school in the Ninth Circuit's jurisdiction as part of a child abuse investigation. When “subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” we have no live controversy to review. United States v. Concentrated Phosphate Export Assn., Inc., 393 U. S. 199, 203 (1968); see, e. g., Atherton Mills v. Johnston, 259 U. S. 13, 15-16 (1922) (suit contesting the validity of a child labor statute mooted when plaintiff-child was “[no longer] within the ages affected by the act”); DeFunis v. Odegaard, 416 U. S. 312 (1974) (per curiam) (suit challenging law school admissions policy mooted when plaintiff neared graduation). Time and distance combined have stymied our ability to consider this petition. Camreta makes only one counterargument: He avers that S. G. has a continuing interest in the Ninth Circuit's constitutional ruling because it may help her establish a municipal liability claim against Deschutes County. See Tr. of Oral Arg. 7; id., at 8. S. G.’s initial complaint charged that the county has an official policy of unconstitutionally subjecting schoolchildren to police interrogation. See n. 2, supra. Finding no evidence of such a policy (even assuming that an unlawful seizure had occurred in this case), the District Court granted summary judgment to the county, App. to Pet. for Cert, in No. 09-1454, pp. 66-67, and S. G. did not appeal that ruling, 588 F. 3d, at 1020, n. 4. And although S. G. recently sought to reinstate her claim against the county, the District Court denied that motion. 6:05-cv-06047-AA, Docket Entry No. 139 (D Ore., Jan. 4, 2011). Whatever interest S. G. might have were her municipal liability claim still pending (an issue we need not and do not decide), we do not think S. G.'s dismissed claim against a different defendant involving a separate legal theory can save this case from mootness. See Commodity Futures Trading Comm’n v. Board of Trade of Chicago, 701 F. 2d 653, 656 (CA7 1983) (Posner, J.) (“[O]ne can never be certain that findings made in a decision concluding one lawsuit will not some day... control the outcome of another suit. But if that were enough to avoid mootness, no case would ever be moot”). We thus must decide how to dispose of this case. When a civil suit becomes moot pending appeal, we have the authority to “direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.” 28 U. S. C. § 2106. Our “established” (though not exceptionless) practice in this situation is to vacate the judgment below. See Munsingwear, 340 U. S., at 39; Alvarez v. Smith, 558 U. S. 87, 94 (2009). “A party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance,” we have emphasized, “ought not in fairness be forced to acquiesce in” that ruling. U S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U. S. 18, 25 (1994). The equitable remedy of vacatur ensures that “those who have been prevented from obtaining the review to which they are entitled [are] not... treated as if there had been a review.” Munsingwear, 340 U. S., at 39. S. G. contends that vacatur is inappropriate in the qualified immunity context because that disposition would “undermine” the Court of Appeals’ choice to “decide [a] constitutional questio[n]” to govern future cases. Brief for Respondent 41-42; Tr. of Oral Arg. 47. Far from counseling against vacatur, S. G.’s argument reveals the necessity of that procedural course. The point of vacatur is to prevent an unreviewable decision “from spawning any legal consequences,” so that no party is harmed by what we have called a “preliminary” adjudication. Munsingwear, 340 U. S., at 40-41. As we have just explained, a constitutional ruling in a qualified immunity case is a legally consequential decision; that is the very reason we think it appropriate for review even at the behest of a prevailing party. See supra, at 704-708. When happenstance prevents that review from occurring, the normal rule should apply: Vacatur then rightly “strips the decision below of its binding effect,” Deakins v. Monaghan, 484 U. S. 193, 200 (1988), and “clears the path for future relitigation,” Munsingwear, 340 U. S., at 40. In this case, the happenstance of S. G.’s moving across country and becoming an adult has deprived Camreta of his appeal rights. Mootness has frustrated his ability to challenge the Court of Appeals’ ruling that he must obtain a warrant before interviewing a suspected child abuse victim at school. We therefore vacate the part of the Ninth Circuit’s opinion that addressed that issue, and remand for further proceedings consistent with this opinion. See, e. g., Arove v. Hoffman, 552 U. S. 117, 118-119 (2008) (per curiam); Selig v. Pediatric Specialty Care, Inc., 551 U. S. 1142 (2007). It is so ordered. Because Greene filed suit as next friend for her minor daughter, we will refer to respondent as S. G. throughout this opinion. S. G. also sued Deschutes County, alleging that it has a policy of unconstitutionally seizing children in public schools. See 588 F. 3d 1011, 1020, n. 4 (CA9 2009). The District Court rejected this claim, and S. G. did not appeal that ruling to the Ninth Circuit. Ibid. The dissent diseusses Deposit Guaranty and Electrical Fittings at length in an effort to distinguish them from this suit. See post, at 718-722 (opinion of Kennedy, X). But we do not say those cases are foursquare with this one on their facts; we rely on them only for the proposition that this Court has previously identified no special Article III bar on review of appeals brought by parties who obtained a judgment in their favor below. The dissent does not, because it cannot, dispute that simple point. Contrary to the dissent’s view, see post, at 726, the injury to the official thus occurs independent of any future suit brought by a third party. Indeed, no such suit is likely to arise because the prospect of damages liability will force the official to ehange his conduct. The constitutional issue could arise in a case in which qualified immunity is unavailable — for example, “in a suit to enjoin future conduct, in an action against a municipality, or in litigating a suppression motion in a criminal proceeding.” Lewis, 523 U. S., at 841, n. 5. A decision in such a case would break the repetitive cycle of qualified immunity defenses described above. But some kinds of constitutional questions do not often come up in these alternative settings. Pearson v. Callahan, 555 U. S. 223, 236 (2009); see Lewis, 523 U. S., at 841, n. 5 (noting that “these avenues w[ill] not necessarily be open”). The dissent complains that our decision “allows plaintiffs to obtain binding constitutional determinations on the merits that lie beyond this Court’s jurisdiction to review.” Post, at 725. But that is not the case. It is not this decision but our prior precedents that allow lower courts to issue “binding constitutional determinations” in qualified immunity cases even when the plaintiff is not entitled to money damages. And it is not our decision but the dissent that would insulate these rulings from this Court’s power to review. We note, however, that the considerations persuading us to permit review of petitions in this posture may not have the same force as applied to a district court decision. “A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.” 18 J. Moore et al., Moore’s Federal Practice § 134.02[l][d], p. 134-26 (3d ed. 2011). Many Courts of Appeals therefore decline to consider district court precedent when determining if constitutional rights are clearly established for purposes of qualified immunity. See, e. g., Kalka v. Hawk, 215 F. 3d 90,100 (CADC 2000) (Tatel, J., concurring in part and concurring in judgment) (collecting cases). Otherwise said, district court decisions— unlike those from the courts of appeals — do not necessarily settle constitutional standards or prevent repeated claims of qualified immunity. Justice Sotomayor maintains that, because this case is moot, “[t]here is no warrant for reaching th[e] question” whether immunized officials may obtain our consideration of an adverse constitutional ruling. Post, at 715 (opinion concurring in judgment). But this Court has never held that it may consider only one threshold issue per case. And here, as we will explain, infra, at 712-714, and n. 10, our discussion of reviewability is critical to our ultimate disposition of this suit. Moreover, that issue was fully litigated in this Court. We granted certiorari to consider whether “the Ninth Circuit’s constitutional ruling [is] reviewable, notwithstanding that [the Court of Appeals] ruled in [the officials’] favor on qualified immunity grounds.” Pet. for Cert, in No. 09-1454, p. i. And all the parties, as well as the United States as amicus curiae, addressed that question in their briefs and oral arguments. Compare Brief for Petitioner in No. 09-1454, pp. 41-44, Brief for Petitioner in No. 09-1478, p. 4, n. 1, Reply Brief for Petitioner in No. 09-1454, pp. 3-13, Reply Brief for Petitioner in No. 09-1478, pp. 5-6, Brief for United States as Amicus Curiae 11-20, and Tr. of Oral Arg. 4-14, 17-24, 54-58, with Brief for Respondent 24-42 and Tr. of Oral Arg. 27-31, 46-52. The same cannot be said for Deputy Sheriff Alford. In their briefs, the parties informed us that Alford no longer works for Deschutes County or in law enforcement. See Brief for Respondent 1, n. 2; Reply Brief for Petitioner in No. 09-1478. Because Alford will not again participate in a child abuse investigation, he has lost his interest in the Fourth Amendment ruling. See supra, at 702-703; cf. Arizonans for Official English v. Arizona, 520 U. S. 43,67 (1997) (holding that the plaintiff’s challenge to a state law affecting the performance of her job duties was mooted when she left state employment). But in light of Camreta’s continuing stake, Alford’s altered circumstances are immaterial to our resolution of this dispute, and we do not decide any questions that would Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

I

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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Per Curiam. We granted certiorari, 464 U. S. 812 (1983), to review a decision of the New York Court of Appeals concerning N. Y. Penal Law §240.35(3) (McKinney 1980), which prohibits loitering “in a public place for the purpose of engaging, or soliciting another person to engage, in deviate sexual intercourse or other sexual behavior of a deviate nature.” Respondents, charged with violating the statute, challenged its constitutionality and the Court of Appeals sustained their claim. 58 N. Y. 2d 936, 447 N. E. 2d 62 (1983). The court concluded that § 240.35(3) is “a companion statute to the consensual sodomy statute . . . which criminalized acts of deviate sexual intercourse between consenting adults” and noted that it had previously held the latter statute unconstitutional in People v. Onofre, 51 N. Y. 2d 476, 415 N. E. 2d 936 (1980), which we declined to review, see 451 U. S. 987 (1981). 58 N. Y. 2d, at 937-938, 447 N. E. 2d, at 62-63. Construing the loitering statute as intended “to punish conduct anticipatory to the act of consensual sodomy,” the Court of Appeals reasoned that “[i]nasmuch as the conduct ultimately contemplated by the loitering statute may not be deemed criminal, we perceive no basis upon which the State may continue to punish loitering for that purpose.” Id., at 938, 447 N. E. 2d, at 63. Petitioner challenges the decision of the Court of Appeals on the ground that the loitering statute is a valid exercise of the State’s power to control public order. Respondents, on the other hand, defend the decision by arguing that the statute is unconstitutionally vague and overbroad on its face and that, as applied, it violates their First Amendment, equal protection, and due process rights. We decline to address these arguments, however, because examination of the case, after full briefing and oral argument, has convinced us that the writ of certiorari was improvidently granted. See The Monrosa v. Carbon Black Export, Inc., 359 U. S. 180, 184 (1959). As the diverse arguments presented in the briefs have demonstrated, the opinion of the Court of Appeals is fairly subject to varying interpretations, leaving us uncertain as to the precise federal constitutional issue the court decided. Moreover, whatever the constitutional basis of the Court of Appeals’ decision, it was clearly premised on the court’s earlier decision in People v. Onofre, supra, and for that reason a meaningful evaluation of the decision below would entail consideration of the questions decided in that case. Petitioner does not, however, challenge the decision of the New York Court of Appeals in that case. See Brief for Petitioner 2. Cf. Pet. for Cert. 6, n. 1. Under these circumstances, we are persuaded that this case provides an inappropriate vehicle for resolving the important constitutional issues raised by the parties. We therefore dismiss the writ of certiorari as improvidently granted. It is so ordered. Petitioner, the State of New York, is represented in this Court by the District Attorney for Erie County, N. Y., the prosecutor who brought the criminal charges against respondents. After certiorari was granted, however, the Attorney General of the State of New York filed a brief as ami-cus curiae, urging us to conclude that the loitering statute as applied in this ease violates respondents’ federal constitutional rights to freedom of speech and privacy but suggesting that the court below erred in striking down the statute on its face. The allocation of authority among state officers to represent the State before this Court is, of course, wholly a matter of state concern. As our Rule 36.4 indicates, however, in addressing the constitutionality of a statute with statewide application we consider highly relevant the views of the State’s chief law enforcement official. The fundamental conflict in the positions taken by petitioner and the New York Attorney General, a circumstance which was “not manifest or fully apprehended at the time certiorari was granted,” Ferguson v. Moor e-McCormack Lines, 352 U. S. 521, 559 (1957) (Harlan, J., concurring and dissenting), provides a strong additional reason for our conclusion that the grant of certiorari was improvident. See The Monrosa v. Carbon Black Export, Inc., 359 U. S. 180, 184 (1959). Under one fair reading of the opinion below, we may not even have jurisdiction to review the Court of Appeals’ decision. See Dorchy v. Kansas, 264 U. S. 286, 290 (1924). The New York court determined, as a matter of state law, that the statute prohibits speech, whether harassing or not, anticipatory to consensual sodomy. Accordingly, the court’s holding might be based on a conclusion that as a matter of state law, the statute at issue here was intended only to provide an additional means of enforcing the statute struck down in Onofre and therefore was not severable from that statute. See 58 N. Y. 2d, at 937-938, 447 N. E. 2d, at 62-63 (“[I]t is apparent from the wording of this statute that it was aimed at proscribing overtures, not necessarily bothersome to the recipient, leading to what was, at the time the law was enacted, an illegal act”). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

I

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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Me. Chief Justice Warren delivered the opinion of the Court. The question to be decided in this case-is what law a Federal District Court should apply in an action brought under the Federal Tort Claims Act where an act of negligence occurs in one State and results in an injury and death in another State. The basic provision of the Tort Claims Act states that the Government shall be liable for tortious conduct committed by its employees acting within the scope of their 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.” The parties urge that the alternatives in selecting the law to determine liability under this statute are: (1) the internal law of the place where the negligence occurred, or (2) the whole law (including choice-of-law rules) of the place where the negligence occurred, or (3) the internal law of the place where the operative effect of the negligence took place. Although the particular facts of this case are relatively unimportant in deciding the question before us, a brief recitation of them is necessary to set the context for our decision. The petitioners are the personal representatives of passengers killed when an airplane, owned by the respondent American Airlines, crashed in Missouri while en route from Tulsa, Oklahoma, to New York City. Suit was brought by the petitioners against the United States in the Federal District Court for the Northern District of Oklahoma, on the theory that the Government, through the Federal Aviation Agency, had “negligently failed to enforce the terms of the Civil Aeronautics Act and the regulations thereunder which prohibited the practices then being used by American Airlines, Inc., in the overhaul depot of Tulsa, Oklahoma.” The petitioners in each case either had already received a $15,000 settlement from the Airlines, the maximum amount recoverable under the Missouri Wrongful Death Act, or had been tendered that amount. They sought additional amounts from the United States under the Oklahoma Wrongful Death Act which contains no limitation on the amount a single person may recover from a tortfeasor. The Government filed a third-party complaint against American Airlines, seeking reimbursement for any amount that the petitioners might recover against the United States. After a pretrial hearing, the District Court ruled that the complaints failed to state claims upon which relief could be granted under the Oklahoma Act since that statute could not be applied extraterritorially “where an act or omission occurring in Oklahoma results in injury and death in the State of Missouri.” Alternatively, the court noted that if Oklahoma law was applicable under the Federal Tort Claims Act, “then the general law of Oklahoma, including its conflicts of law rule, is applicable thereunder,” thus precluding further recovery since the Oklahoma conflicts rule would refer the court to the law of Missouri, the place where the negligence had its operative effect. In dismissing the petitioners’ complaints against the United States, the court found it unnecessary to pass upon the third-party complaint asserted by the Government against American. On appeal, the Court of Appeals for the Tenth Circuit affirmed the judgment by a divided vote, the majority agreeing with the lower court that the complaints failed to state a cause of action upon which relief could be based under either the Oklahoma or the Missouri Wrongful Death Act. In dissent, the chief judge, believing that Congress intended the internal law of the place where the act or omission occurred to control the rights and liabilities of the parties, stated that he thought it was error to apply the Oklahoma conflict-of-laws rule, and would have remanded the case for a determination of liability under the Oklahoma Act. That the question confronting us is an important one and of a recurring nature is made apparent by the conflicting views expressed in its solution by the lower federal courts. In the five circuits in which it has arisen, resolution of the question has been reached by adoption of one or another of the alternatives urged upon us by the parties to this suit. The petitioners’ contention, that the reference in Section 1346 (b) to the “place where the act or omission occurred” directs application of only the internal law of that State — here, Oklahoma — is supported by the Seventh Circuit’s decision in Voytas v. United States, 256 F. 2d 786, and by the District of Columbia Circuit in Eastern Air Lines v. Union Trust Co., 95 U. S. App. D. C. 189, 221 F. 2d 62, as well as by the dissenting judge of the Tenth Circuit in the instant case. The Government’s interpretation of the Act, that in order also to give effect to Section 2674, providing that the United States shall be liable in the same manner as a private individual, a court must refer to the whole law of the State where the act or omission occurred, was adhered to by the Second Circuit in Landon v. United States, 197 F. 2d 128, as well as by the Tenth Circuit in the case at bar. American Airlines, although willing to abide by the interpretation advanced by the Government, suggests, as an alternative, that the internal law of the place where the negligence had its operative effect — here, Missouri — should control. This construction of the Act is supported by the Ninth Circuit’s decision in United States v. Marshall, 230 F. 2d 183, and by the dissenting opinion in the Union Trust case, supra. It was to resolve the threefold conflict and to enunciate a rule that can be applied uniformly in Tort Claims Act cases that we granted certiorari. 366 U. S. 916. I. The principal provision of the Federal Tort Claims Act, originally enacted as Title IV of the Legislative Reorganization Act of 1946, is Section 1346 (b), reading in pertinent part: . . the district courts . . . shall have exclusive jurisdiction of- civil actions on 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.” Section 2674, also relevant to our decision, provides: “The United States shall be liable, respecting . . . tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.” The Tort Claims Act was designed primarily to remove the sovereign immunity of the United States from suits in tort and, with certain specific exceptions,- to render the Government liable in tort as a private individual would be under like circumstances. It is evident that the Act was not patterned to operate with complete independence from the principles of law developed in the common law and refined by statute and judicial decision in the various States. Rather, it was designed to build upon the legal relationships formulated and characterized by the States, and, to that extent, the statutory scheme is exemplary of the generally interstitial character of federal law. If Congress had meant to alter or supplant the legal relationships developed by the States, it could specifically have done so to further the limited objectives of the Tort Claims Act. That is, notwithstanding the generally interstitial character of the law, Congress, in waiving the immunity of the Government for tortious conduct of its employees, could have imposed restrictions and conditions on the extent and substance of its liability. We must determine whether, and to what extent, Congress exercised this power in selecting a rule for the choice of laws to be applied in suits brought under the Act. And, because the issue of the applicable law is controlled by a formal expression of the will of Congress, we need not pause to consider the question whether the conflict-of-laws rule applied in suits where federal jurisdiction rests upon diversity of citizenship shall be extended to a case such as this, in which jurisdiction is based upon a federal statute. In addition, and even though Congress has left to judicial implication the task of giving content to its will in selecting the controlling law, because of the formal expression found in the Act itself, we are presented with a situation wholly distinguishable from those cases in which our initial inquiry has been whether the appropriate rule should be the simple adoption of state law. Here, we must decide, first, to which State the words “where the act or omission occurred” direct us, and, second, whether application of the internal law or the whole law of that State would be most consistent with the legislative purpose in enacting the Tort Claims Act. II. The legislative history of the Act, although generally extensive, is not, except in a negative way, helpful in solving the problem of the law to be applied in a multi-state tort action such as is presented by the facts of this case. It has been repeatedly observed that Congress did not consider choice-of-law problems during the long period that the legislation was being prepared for enactment. The concern of Congress, as illustrated by the legislative history, was the problem of a person injured by an employee operating a government vehicle or otherwise acting within the scope of his employment, situations rarely involving a conflict-of-laws question. In these instances, where the negligence and the injury normally occur simultaneously and in a single jurisdiction, the law to be applied is clear, and no solution to the meaning of the words “the law of the place where the act or omission occurred” is required. Here, however, we are faced with events touching more than one “place” — a problem which Congress apparently did not explicitly consider — and, thus, we are compelled to give content to those critical words. In the Tort Claims Act Congress has expressly stated that the Government’s liability is to be determined by the application of a particular law, the law of the place where the act or omission occurred, and we must, of course, start with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used. We believe that it would be difficult to conceive of any more precise language Congress could have used to command application of the law of the place where the negligence occurred than the words it did employ in the Tort Claims Act. Thus we first reject the alternative urged by American Airlines. The legislative materials cited to us by American not only lack probative force in a judicial sense, but they are completely unpersuasive to support the argument that Congress intended the words “act or omission” to refer to the place where the negligence had its operative effect. The ease of application inherent in the rule urged by American lends a certain attractiveness, but we are bound to operate within the framework of the words chosen by Congress and not to question the wisdom of the latter in the process of construction. We conclude that Congress has, in the Tort Claims Act, enacted a rule which requires federal courts, in multistate tort actions, to look in the first instance to the law of the place where the acts of negligence took place. III. However, our task is not completed. Having rejected the third alternative stated initially as inconsistent with the express terminology of the Act, we must now determine the reach of the words “law of the place.” Do they embrace the whole law of the place where the negligence occurred, or only the internal law of that place? This problem, unlike the initial question discussed under II, supra, has not been dealt with by any formal expression of Congress and we must therefore establish the rule to be applied uniformly by lower federal courts, with due regard to the variant interests and policies expressed by the Tort Claims Act legislation. We believe it fundamental that a section of a statute should not be read in isolation from the context of the whole Act, and that in fulfilling our responsibility in interpreting legislation, “we must not be guided by a single sentence or member of a sentence, but [should] look to the provisions of the whole law, and to its object and policy.” We should not assume that Congress intended to set the courts completely adrift from state law with regard to questions for which it has not provided a specific and definite answer in an act such as the one before us which, as we have indicated, is so intimately related to state law. Thus, we conclude that a reading of the statute as a whole, with due regard to its purpose, requires application of the whole law of the State where the act or omission occurred. We are led to our conclusion by other persuasive factors notwithstanding the fact that the very conflict among the lower federal courts that we must here resolve illustrates the also reasonable alternative view expressed by the petitioners. First, our interpretation enables the federal courts to treat the United States as a “private individual under like circumstances,” and thus is consistent with the Act considered as a whole. The general conflict-of-laws rule, followed by a vast majority of the States, is to apply the law of the place of injury to the substantive rights of the parties. Therefore, where the forum State is the same as the one in which the act or omission occurred, our interpretation will enable the federal courts to treat the United States as an individual would be treated under like circumstances. Moreover, this interpretation of the Act provides a degree of flexibility to the law to be applied in federal courts that would not be possible under the view advanced either by the petitioners or by American. Recently there has been a tendency on the part of some States to depart from the general conflicts rule in order to take into account the interests of the State having significant contact with the parties to the litigation. We can see no compelling reason to saddle the Act with an interpretation that would prevent the federal courts from implementing this policy in choice-of-law rules where the State in which the negligence occurred has adopted it. Should the States continue this rejection of the older rule in those situations where its application might appear inappropriate or inequitable, the flexibility inherent in our interpretation will also be more in step with that judicial approach, as well as with the character of the legislation and with the purpose of the Act considered as a whole. In the absence of persuasive evidence to the contrary, we do not believe that Congress intended to adopt the inflexible rule urged upon us by the petitioners. Despite the power of Congress to enact for litigation of this type a federal conflict-of-laws rule independent of the States’ development of such rules, we should not, particularly in the type of interstitial legislation involved here, assume that it has done so. Nor are we persuaded to require such an independent federal rule by the petitioners’ argument that there are other instances, specifically set forth in the Act, where the liability of the United States is not co-extensive with that of a private person under state law. It seems sufficient to note that Congress has been specific in those instances where it intended the federal courts to depart completely from state law and, also, that this list of exceptions contains no direct or indirect modification of the principles controlling application of choice-of-law rules. Certainly there is nothing in the legislative history that even remotely supports the argument that Congress did not intend state conflict rules to apply to multi-state tort actions brought against the Government. Under our interpretation of the Act we find it unnecessary to judge the effect of the Oklahoma courts’ pronouncements that the Oklahoma Wrongful Death Act cannot be given extraterritorial effect. IV. Our view of a State’s power to adopt an appropriate conflict-of-laws doctrine in a situation touching more than one place has been indicated by our discussion in Part III of this opinion. Where more than one State has sufficiently substantial contact with the activity in question, the forum State, by analysis of the interests possessed by the States involved, could constitutionally apply to the decision of the case the law of one or another state having such an interest in the multistate activity. Thus, an Oklahoma state court would be free to apply either its own law, the law of the place where the negligence occurred, or the law of Missouri, the law of the place where the injury occurred, to an action brought in its courts and involving this factual situation. Both the Federal District Court sitting in Oklahoma, and the Court of Appeals for the Tenth Circuit, have interpreted the pertinent Oklahoma decisions, which we have held are controlling, to declare that an action for wrongful death is based on the statute of the place where the injury occurred that caused the death. Therefore, Missouri’s statute controls the case at bar. It is conceded that each petitioner has received $15,000, the maximum amount recoverable under the Missouri Act, and the petitioners thus have received full compensation for their claims. Accordingly, the courts below were correct in holding that, in accordance with Oklahoma law, petitioners had failed to state claims upon which relief could be granted. The judgment is Affirmed. The provisions of the Tort Claims Act are now found in 28 U. S. C. §§ 1291, 1346, 1402, 1504, 2110, 2401, 2402, 2411, 2412, and 2671-2680. 28 U. S. C. §1346 (b). Under 72 Stat. 778, 49 U. S. C. § 1425, the Administrator of the Federal Aviation Agency is charged' with the responsibility of enforcing rules and regulations controlling inspection, maintenance, overhaul and repair of all equipment used in air transportation. Mo. Rev. Stat., 1949, § 537.090. Subsequent to the origination of these actions the Missouri Code was amended to provide for maximum damages of $25,000. Mo. Rev. Stat., 1959, § 537.090. Okla. Stat., 1961, Tit. 12, §§ 1051-1054. The opinion of the District Court is not reported. Gochenour v. St. Louis-San Francisco R. Co., 205 Okla. 594, 239 P. 2d 769. 285 P. 2d 521. 28 U. S. C. §2674. 60 Stat. 842 (1946). See Feres v. United States, 340 U. S. 135, for a detailed analysis of the purposes of the Federal Tort Claims Act in the context of its legislative history. Soriano v. United States, 352 U. S. 270; United States v. Sherwood, 312 U. S. 584. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U. S. 487. See Vanston Bondholders Protective Committee v. Green, 329 U. S. 156; McKenzie v. Irving Trust Co., 323 U. S. 365; D’Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U. S. 447. See, e. g., Holmberg v. Armbrecht, 327 U. S. 392; Clearfield Trust Co. v. United States, 318 U. S. 363; D’Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U. S. 447; Royal Indemnity Co. v. United States, 313 U. S. 289; Board of Comm’rs v. United States, 308 U. S. 343. See also discussion in Hart and Wechsler, The Federal Courts and the Federal System, 679 et seq. Hearings before House Committee on the Judiciary on H. R. 5373 and H. R.. 6463, 77th Cong., 2d Sess.; S. Rep. No. 1196, 77th Cong., 2d Sess.; H. R. Rep. No. 2245, 77th Cong., 2d Sess.; No. 1287, 79th Cong., 1st Sess. See, e. g., 68 Harv. L. Rev. 1455 (1955); 45 Iowa L. Rev. 125 (1959); 6 N. Y. L. F. 484, 488-490 (1960). See H. R. Rep. No. 2428, 76th Cong., 3d Sess. 3; Hearings on H. R. 5373 and H. R. 6463, note 15, supra, 39, 66; Hearings before a Subcommittee of the House Committee on the Judiciary on H. R. 7236, 76th Cong., 3d Sess. 7, 16; Hearings before a Subcommittee of the Senate Committee on the Judiciary on S. 2690, 76th Cong., 3d Sess. 9; 69 Cong. Rec. 2192, 2193, 3118; 86 Cong. Rec. 12024. See, e. g., Knecht v. United States, 242 F. 2d 929; Irish v. United States, 225 F. 2d 3; United States v. Praylou, 208 F. 2d 291; Somerset Seafood Co. v. United States, 193 F. 2d 631; D’Anna v. United States, 181 F. 2d 335; Olson v. United States, 175 F. 2d 510; Modla v. United States, 151 F. Supp. 198; Irvin v. United States, 148 F. Supp. 25. 28 U. S. C. § 1346 (b). Hearings before House Committee on the Judiciary on H. R. 5373 and H. R. 6463, 77th Cong., 2d Sess. 9, 30. American suggests that support for its argument is found in the testimony of Mr. Francis Shea, then Assistant Attorney General of the United States, before the House Committee on the Judiciary, who stated, when asked where a claimant might bring suit under the Act, that the venue provision allowed suit to be brought either where the claimant resides or where the injury took place. Because the venue provision of the Act also contains the words “wherein the act or omission complained of occurred” (28 U. S. C. § 1402 (b)), American contends that the reference to the place where the injury occurred should control the meaning of the “act or omission” language in Section 1346 (b). In addition to the fact that this testimony bears no relation to the choice-of-laws problems, and that considerations underlying the problem of venue are substantially different from those determining applicable law, we are not persuaded to allow an isolated piece of legislative history to detract from the Act the words Congress expressly employed. Labor Board v. Lion Oil Co., 352 U. S. 282, 288; Cherokee Intermarriage Cases, 203 U. S. 76, 89; Panama Refining Co. v. Ryan, 293 U. S. 388, 439 (Cardozo, J., dissenting). Mastro Plastics Corp. v. Labor Board, 350 U. S. 270, 285, quoting from United States v. Boisdoré’s Heirs, 8 How. 113, 122. 28 U. S. C. § 2674, quoted in the text, supra, as well as 28 U. S. C. § 1346 (b), provides that the United States should be treated as an individual defendant would be under like circumstances. Restatement, Conflict of Laws, §§377, 378 and 391. This rule has been repeated so frequently that a citation of cases here would serve no purpose. For a collection of cases, see Goodrich, Conflict of Laws, 263-264; Stumberg, Conflict of Laws, 182-187; 26 C. J. S. Death § 28, nn. 27-30. For example, had the petitioners in the instant case brought suit against American as well as the United States, the petitioners’ interpretation of the Act would have the District Court determine American’s liability by the law of Missouri and the United States’ by the law of Oklahoma. Under our construction of the Act, however, both defendants’ liability would be determined by the law of Missouri. However, because of the venue provision in the statute, allowing suit to be brought where all the plaintiffs reside as well as where the act or omission occurred (28 U. S. C. § 1402 (b); see Knecht v. United States, 242 F. 2d 929; Olson v. United States, 175 F. 2d 510), a situation may arise where a District Court could not determine the Government’s and a private individual’s liability in exactly the same manner. Grant v. McÀuliffe, 41 Cal. 2d 859, 264 P. 2d 944; Schmidt v. Driscoll Hotel, Inc., 249 Minn. 376, 82 N. W. 2d 365; Haumschild v. Continental Casualty Co., 7 Wis. 2d 130, 95 N. W. 2d 814. See Currie, Survival of Actions: Adjudication versus Automation in the Conflict of Laws, 10 Stan. L. Rev. 205 (1958). Cf. Vrooman v. Beech Aircraft Corp., 183 F. 2d 479; Levy v. Daniels’ U-Drive Auto Renting Co., 108 Conn. 333, 143 A. 163; Caldwell v. Gore, 175 La. 501, 143 So. 387; Burkett v. Globe Indemnity Co., 182 Miss. 423, 181 So. 316. In addition to the cases cited in note 26, supra, see the opinion by MR. Justice Black in Vanston Bondholders Protective Committee v. Green, 329 U. S. 156, 161-162, where it is stated in context to a different but analogous problem: “In determining which contact is the most significant in a par-, tieular transaction, courts can seldom find a complete solution in the mechanical formulae of the conflicts of law. Determination requires the exercise of an informed judgment in the balancing of all the interests of the states with the most significant contacts in order best to accommodate the equities among the parties to the policies of those states.” The Act permits claimants to sue only in the federal courts, and not in the state courts which are available in actions against a private individual, § 1346 (b); the Act prescribes its own period of limitations which may be shorter or longer than that of the State, § 2401 (b); the claimant cannot obtain a trial by jury under the Act, although he could against a private individual, §2402; the claimant cannot obtain interest prior to judgment in suits under the Act regardless of the state rule governing private individuals, § 2674; the claimant cannot obtain punitive damages under the Act, even though state law may provide for it as against a private defendant, § 2674; the claimant cannot recover any damages against the United States on any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights, whereas he could recover such damages against a private individual, § 2680 (h); the claimant cannot obtain any recovery against the United States on a claim arising in a foreign country, although he could against a private individual, § 2680 (k); and the Act exempts the Government from liability for claims based on various types of activities, although a private individual would be liable in the same circumstances, § 2680. In fact, despite the ambiguity that exists in the history due to the fact that Congress did not specifically consider the choice-of-laws problem, the legislative material indicates that Congress thought in terms of state law being applicable. The term “law of the place where the act or omission occurred” was particularized as (1) the law of the situs of the wrongful act or omission. Hearings before House Committee on the Judiciary on H. R. 5373 and H. R. 6463, 77th Cong., 2d Sess. 35; (2) local law, id., at 26, 27, 30, 59 and 61; S. Rep. No. 1196, 77th Cong., 2d Sess. 6; H. R. Rep. No. 2245, 77th Cong., 2d Sess. 9; H. R. Rep. No. 1287, 79th Cong., 1st Sess. 4; S. Rep. No. 1400, 79th Cong., 2d Sess. 32; (3) local tort law. Hearings before House Committee on the Judiciary on H. R. 5373 and H. R. 6463, 77th Cong., 2d Sess. 30; (4) the law of the situs of the alleged tort. Hearings before a Subcommittee of the Senate Committee on the Judiciary on S. 2690, 76th Cong., 3d Sess. 44; and (5) the locale of the injury or damage. Hearings before the House Committee on the Judiciary on H. R. 5373 and H. R. 6463, 77th Cong., 2d Sess. 9. Gochenour v. St. Louis-San Francisco R. Co., 205 Okla. 594, 239 P. 2d 769. See Fenton v. Sinclair Refining Co., 206 Okla. 19, 240 P. 2d 748. Supra, pp. 12-13 and cases cited. See also Carroll v. Lanza, 349 U. S. 408; Watson v. Employers Liability Corp., 348 U. S. 66; Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U. S. 493. Cf. Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 292 U. S. 143; Home Insurance Co. v. Dick, 281 U. S. 397. See, e. g., the cases cited in note 26, supra. Alabama G. S. R. Co. v. Carroll, 97 Ala. 126, 11 So. 803; Otey v. Midland Valley R. Co., 108 Kan. 755, 197 P. 203; Connecticut Valley Lumber Co. v. Maine Central R. Co., 78 N. H. 553, 103 A. 263; El Paso & N. W. R. Co. v. McComus, 36 Tex. Civ. App. 170, 81 S. W. 760 (holding that the law of the place of injury controls) and Schmidt v. Driscoll Hotel, Inc., 249 Minn. 376, 82 N. W. 2d 365 (holding that the law of the place of negligence controls). See also Hunter v. Derby Foods, 110 F. 2d 970; 35 Col. L. Rev. 202. Gochenour v. St. Louis-San Francisco R. Co., 205 Okla. 594, 239 P. 2d 769; Miller v. Tennis, 140 Okla. 185, 282 P. 345. See Fenton v. Sinclair Refining Co., 206 Okla. 19, 240 P. 2d 748. We are aware that in the Oklahoma cases cited in note 34, supra, both the injury and negligence occurred in the same sister State, and that the two courts below relied largely on dictum in those cases to conclude that Oklahoma would follow the general rule that the law of the place of injury would control even had the negligence that caused the injury taken place in Oklahoma. The petitioners here do not contend that this was an erroneous interpretation of state law. We ordinarily accept the determinations of Courts of Appeals on questions of state law and do so here under the circumstances presented. General Box Co. v. United States, 351 U. S. 159, 165; Estate of Spiegel v. Commissioner, 335 U. S. 701, 707-708; Huddleston v. Dwyer, 322 U. S. 232, 237. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Thomas delivered the opinion of the Court. Section 204(d) of the Equal Access to Justice Act (EAJA), codified in 28 U. S. C. § 2412(d), provides in pertinent part that “a court shall award to a prevailing party . . . fees and other expenses ... in any civil action . . . brought by or against the United States . . . unless the court finds that the position of the United States was substantially justified.” We consider whether an award of “fees and other expenses” to a “prevailing party” under § 2412(d) is payable to the litigant or to his attorney. We hold that a § 2412(d) fees award is payable to the litigant and is therefore subject to a Government offset to satisfy a pre-existing debt that the litigant owes the United States. I This case arises out of proceedings in which a Social Security claimant, Ruby Willow Kills Ree, prevailed on a claim for benefits against the United States. Respondent Catherine Ratliff was Kills Ree’s attorney in those proceedings. The District Court granted Kills Ree’s unopposed motion for a § 2412(d) fees award in the amount of $2,112.60. Before the United States paid the fees award, however, it discovered that Kills Ree owed the Government a debt that predated the District Court’s approval of the award. Accordingly, the United States sought an administrative offset against the fees award to satisfy part of that debt. The Government’s authority to use administrative offsets is statutory. See 31 U. S. C. §§ 3711(a), 3716(a) (authorizing an agency whose debt collection attempts are unsuccessful to “collect the claim by administrative offset”). Congress has subjected to offset all “funds payable by the United States,” § 3701(a)(1), to an individual who owes certain delinquent federal debts, see § 3701(b), unless, as relevant here, payment is exempted by statute, see § 3716(e)(2). No such exemption applies to attorney’s fees awards under 28 U. S. C. § 2412(d)(1)(A) (hereinafter subsection (d)(1)(A)), which are otherwise subject to offset, see 31 CFR § 285.5(e)(1) (2009), and which, as of January 2005, are covered by the Treasury Offset Program (TOP) operated by the Treasury Department’s Financial Management Service (FMS). See Brief for Petitioner 4 (explaining TOP’S extension to cover so-called “ ‘miscellaneous’ ” payments that include attorney’s fees payments the Treasury Department makes on behalf of federal agencies). In this case, the Government, relying on the TOP, notified Kills Ree that the Government would apply her § 2412(d) fees award to offset a portion of her outstanding federal debt. Ratliff intervened to challenge the offset on the grounds that § 2412(d) fees belong to a litigant’s attorney and thus may not be used to offset or otherwise satisfy a litigant’s federal debts. The District Court held that because § 2412(d) directs that fees be awarded to the prevailing party, not to her attorney, Ratliff lacked standing to challenge the Government’s proposed offset. See No. CIV. 06-5070-RHB, 2007 WL 6894710, *1 (D SD, May 10, 2007). The Court of Appeals for the Eighth Circuit reversed. 540 F. 3d 800 (2008). It held that under Circuit precedent, “EAJA attorneys’ fees are awarded to prevailing parties’ attorneys.” Id., at 802. The Court of Appeals recognized that its decision did not accord with a “literal interpretation of the EAJA,” ibid., and exacerbated a split among the Courts of Appeals, compare id., at 801-802, with, e. g., Reeves v. Astrue, 526 F. 3d 732, 733 (CA11 2008); Manning v. Astrue, 510 F. 3d 1246, 1249-1251 (CA10 2007); FDL Technologies, Inc. v. United States, 967 F. 2d 1578, 1580 (CA Fed. 1992); Panola Land Buying Assn. v. Clark, 844 F. 2d 1506, 1510-1511 (CA11 1988). We granted certiorari. 557 U. S. 965 (2009). II Subsection (d)(1)(A) directs that courts “shall award to a prevailing party . . . fees and other expenses . . . incurred by that party.” (Emphasis added.) We have long held that' the term “prevailing party” in fee statutes is a “term of art” that refers to the prevailing litigant. See, e. g., Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U. S. 598, 603 (2001). This treatment reflects the fact that statutes that award attorney’s fees to a prevailing party are exceptions to the “ ‘American Rule’” that each litigant “bear [his] own attorney’s fees.” Id., at 602 (citing Key Tronic Corp. v. United States, 511 U. S. 809, 819 (1994)). Nothing in EAJA supports a different reading. Cf. Arthur Andersen LLP v. Carlisle, 556 U. S. 624, 630, n. 4 (2009) (where Congress employs “identical words and phrases within the same statute,” they are presumed to carry “the same meaning” (internal quotation marks omitted)). Indeed, other subsections within § 2412(d) underscore that the term “prevailing party” in subsection (d)(1)(A) carries its usual and settled meaning — prevailing litigant. Those other subsections clearly distinguish the party who receives the fees award (the litigant) from the attorney who performed the work that generated the fees. See, e.g., § 2412(d)(1)(B) (hereinafter subsection (d)(1)(B)) (the “prevailing party” must apply for the fees award and “sho[w]” that he “is a prevailing party and is eligible to receive an award” by, among other things, submitting “an itemized statement from any attorney . . . representing or appearing in behalf of the party” that details the attorney’s hourly rate and time spent on the case (emphasis added)); see also Part III, infra. Ratliff nonetheless asserts that subsection (d)(l)(A)’s use of the verb “award” renders § 2412(d) fees payable directly to a prevailing party’s attorney and thus protects the fees from a Government offset against the prevailing party’s federal debts. See Brief for Respondent 11-19 (arguing that subsection (d)(l)(A)’s use of the word “ ‘award’ ” “expressly incorporates a critical distinction” between the right to an “‘award’” of fees and the right to “‘receiv[e]’” the fees). We disagree. The transitive verb “ ‘award’ ” has a settled meaning in the litigation context: It means “[t]o give or assign by sentence or judicial determination.” Black’s Law Dictionary 125 (5th ed. 1979) (emphasis added); see also Webster’s Third New International Dictionary 152 (1993) (“to give by judicial decree” (emphasis added)). The plain meaning of the word “award” in subsection (d)(1)(A) is thus that the court shall “give or assign by... judicial determination” to the “prevailing party” (here, Ratliff’s client Kills Ree) attorney’s fees in the amount sought and substantiated under, inter alia, subsection (d)(1)(B). Ratliff’s contrary argument does not withstand scrutiny. According to Ratliff, subsection (d)(1)(B), which uses “the noun ‘award’ ” to mean a “ ‘decision,’ ” requires us to construe subsection (d)(1)(A) (which uses “award” as a verb) to mean that “[o]nly the prevailing party may receive the award (the decision granting fees), but only the attorney who earned the fee (the payment asked or given for professional services) is entitled to receive it.” Brief for Respondent 16,15 (emphasis in original; some internal quotation marks and footnote omitted). This argument ignores the settled definitions above, and even the definitions Ratliff proffers, because each makes clear that the verb “award” in subsection (d)(1)(A) means to “give by the decision of a law court” or to “grant . ..by judicial decree,” not simply to “give a decision” itself. Id., at 16, and n. 39 (emphasis added; internal quotation marks omitted). We thus agree with the Government that under the statutory language here, the “judicial decision is the means by which the court confers a right to payment upon the prevailing party; it is not itself the thing that the court gives (or orders the defendant to give) to the party.” Reply Brief for Petitioner 4 (emphasis in original; citing Hewitt v. Helms, 482 U. S. 755, 761 (1987) (explaining that “[i]n all civil litigation, the judicial decree is not the end but the means”)). This settled and natural construction of the operative statutory language is reflected in our cases. See, e. g., Scarborough v. Principi, 541 U. S. 401, 405 (2004) (“EAJA authorizes the payment of fees to a prevailing party” (emphasis added)). Ratliff’s final textual argument — that subsection (d)(2)(A)’s reference to “attorney fees” itself establishes that the fees are payable to the prevailing party’s attorney, see Brief for Respondent 19-22 — proves far too much. The fact that the statute awards to the prevailing party fees in which her attorney may have a beneficial interest or a contractual right does not establish that the statute “awards” the fees directly to the attorney. For the reasons we have explained, the statute’s plain text does the opposite — it “awards” the fees to the litigant, and thus subjects them to a federal administrative offset if the litigant has outstanding federal debts. Ill In an effort to avoid EAJA’s plain meaning, Ratliff argues that other provisions of EAJA, combined with the SSA and the Government’s practice of paying some EAJA fees awards directly to attorneys in Social Security cases, render § 2412(d) at least ambiguous on the question presented here, and that these other provisions resolve the ambiguity in her favor. Again we disagree. Even accepting § 2412(d) as ambiguous on the question presented, the provisions and practices Ratliff identifies do not alter our conclusion that EAJA fees are payable to litigants and are thus subject to offset where a litigant has outstanding federal debts. To begin with, §2412(d)(l)’s provisions differentiate between attorneys and prevailing parties, and treat attorneys on par with other service providers, in a manner that forecloses the conclusion that attorneys have a right to direct payment of subsection (d)(1)(A) awards. As noted above, subsection (d)(1)(B) requires the prevailing party to submit a fee application showing that she is otherwise “eligible to receive an award” and, as a complement to that requirement, compels the prevailing party to submit “an itemized statement from any attorney . . . representing or appearing in behalf of the party” that details the attorney’s hourly rate and time the attorney spent on the case. (Emphasis added.) This language would make little sense if, as Ratliff contends, §2412(d)’s “prevailing party” language effectively refers to the prevailing litigant’s attorney. Subsection (d)(1)(B) similarly makes clear that the “prevailing party” (not her attorney) is the recipient of the fees award by requiring the prevailing party to demonstrate that her net worth falls within the range the statute requires for fees awards. And E AJA’s cost provision further underscores the point. That provision uses language identical to that in the attorney’s fees provision to allow prevailing parties to recover “the reasonable expenses of expert witnesses” and “any study, analysis, engineering report, test, or project” necessary to prepare “the party’s case,” § 2412(d)(2)(A), yet Ratliff does not argue that it makes costs payable directly to the vendors who provide the relevant services. Nor do the SSA provisions on which Ratliff relies establish that subsection (d)(1)(A) fees awards are payable to prevailing parties’ attorneys. It is true that the SSA makes fees awards under that statute payable directly to a prevailing claimant’s attorney. See 42 U. S. C. § 406(b)(1)(A) (providing that where a claimant “who was represented before the court by an attorney” obtains a favorable judgment, “the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of” the benefits award and may certify the full amount of the statutory fees award “for payment to such attorney out of, and not in addition to, the amount of” the claimant’s benefits award (emphasis added)). But the SSA’s express authorization of such payments undermines Ratliff’s case insofar as it shows that Congress knows how to make fees awards payable directly to attorneys where it desires to do so. Given the stark contrast between the SSA’s express authorization of direct payments to attorneys and the absence of such language in subsection (d)(1)(A), we are reluctant to interpret the latter provision to contain a direct fee requirement absent clear textual evidence supporting such an interpretation. Ratliff contends that Congress’ 1985 amendments to § 206(b) of EA JA supply just such evidence, at least in Social Security cases. See §3(2), 99 Stat. 186, note following 28 U. S. C. § 2412, p. 1309 (Saving Provision). The 1985 amendments address the fact that Social Security claimants may be eligible to receive fees awards under both the SSA and EAJA, and clarify the procedure that attorneys and their clients must follow to prevent the windfall of an unauthorized double recovery of fees for the same work. Section 206(b) provides that no violation of law occurs “if, where the claimant’s attorney receives fees for the same work under both [42 U. S. C. § 406(b) and 28 U. S. C. § 2412(d)], the claimant’s attorney refunds to the claimant the amount of the smaller fee.” According to Ratliff, the fact that § 206(b) recognizes, or at least assumes, that an attorney will sometimes “receiv[e]” fees under 28 U. S. C. § 2412(d) suggests that we should construe subsection (d)(1)(A) to incorporate the same direct payments to attorneys that the SSA expressly authorizes. This argument gives more weight to § 206(b)’s reference to attorney “receipt]” of fees than the reference can bear. Section 206(b)’s ensuing reference to the attorney’s obligation to “refun[d]” the amount of the smaller fee to the claimant, which reference suggests that the award belongs to the claimant in the first place, alone undercuts Ratliff’s reading of “receives” as implying an initial statutory payment to the attorney. And Ratliff’s reading is in any event irreconcilable with the textual differences between EAJA and the SSA we discuss above. Thus, even accepting Ratliff’s argument that subsection (d)(1)(A) is ambiguous, the statutory provisions she cites resolve any ambiguity in favor of treating subsection (d)(1)(A) awards as payable to the prevailing litigant, and thus subject to offset where the litigant has relevant federal debts. The Government’s history of paying EAJA awards directly to attorneys in certain cases does not compel a different conclusion. The Government concedes that until 2006, it “frequently paid EAJA fees in Social Security cases directly to attorneys.” Reply Brief for Petitioner 13. But this fact does not alter our interpretation of subsection (d)(l)(A)’s “prevailing party” language or the Government’s rights and obligations under the statute. As the Government explains, it most often paid EAJA fees directly to attorneys in cases in which the prevailing party had assigned its rights in the fees award to the attorney (which assignment would not be necessary if the statute rendered the fees award payable to the attorney in the first instance). The fact that some such cases involved a prevailing party with outstanding federal debts is unsurprising given that it was not until 2005 that the Treasury Department modified the TOP to require offsets against “miscellaneous” payments such as attorney’s fees awards. And as Ratliff admits, the Government has since continued the direct payment practice only in cases where “the plaintiff does not owe a debt to the government and assigns the right to receive the fees to the attorney.” Brief for Respondent 28 (boldface deleted). The Government’s decision to continue direct payments only in such cases is easily explained by the 2005 amendments to the TOP, and nothing about the Government’s past payment practices altered the statutory text that governs this casé or estopped the Government from conforming its payment practices to the Treasury Department’s revised regulations. For all of these reasons, neither EAJA nor the SSA supports Ratliff’s reading of subsection (d)(1)(A). Our eases interpreting and applying 42 U. S. C. § 1988, which contains language virtually identical to the EAJA pro vision we address here, buttress this conclusion. Our most recent cases applying § 1988(b)’s “prevailing party” language recognize the practical reality that attorneys are the beneficiaries and, almost always, the ultimate recipients of the fees that the statute awards to “prevailing part[ies].” See, e. g., Venegas v. Mitchell, 495 U. S. 82, 86 (1990). But these cases emphasize the nonstatutory (contractual and other assignment-based) rights that typically confer upon the attorney the entitlement to payment of the fees award the statute confers on the prevailing litigant. As noted above, these kinds of arrangements would be unnecessary if, as Ratliff contends, statutory fees language like that in § 1988(b) and EAJA provides attorneys with a statutory right to direct payment of awards. Hence our conclusion that “the party, rather than the lawyer,” id., at 87, is “entitle[d] to receive the fees” under § 1988(b), id., at 88, and that the statute “controls what the losing defendant must pay, not what the prevailing plaintiff must, pay his lawyer,” id., at 90; see also Evans v. Jeff D., 475 U. S. 717, 730-732, and n. 19 (1986) (explaining that the “language of [§ 1988]... bestow[s] on the ‘prevailing party’ (generally plaintiffs) a statutory eligibility for a discretionary award of attorney’s fees” and does not “besto[w] fee awards upon attorneys” themselves (emphasis deleted; footnote omitted)). These conclusions apply with equal force to the functionally identical statutory language here. * * * We reverse the Court of Appeals' judgment and remand the case for further proceedings consistent with this opinion. It is so ordered. Section 3701 defines an administrative offset as “withholding funds payable by the United States” to the debtor. § 3701(a)(1). An agency may effect such an offset by cooperating with another agency to withhold such funds, or by notifying the Treasury Department of the debt so Treasury may include it in Treasury’s centralized offset program. See 31 CFR §§ 285.5(d)(2), 901.3(b)(1), (c) (2009). Alternatively, the Treasury Department may attempt an administrative offset after receiving notice from a creditor agency that a legally enforceable nontax debt has become more than 180 days delinquent. See 31 U. S. C. § 3716(c)(6); 31 CFR §§285.5(d)(1), 901.3(b)(1). Respondent Ratliff argues for the first time in her merits brief before this Court that the 2005 amendments to the FMS regulations exempt the EAJA fees award in this case from administrative offset against Kills Ree’s outstanding federal debt. See Brief for Respondent 8,46 (citing 31 CFR § 285.5(e)(5)). We need not decide this question because Ratliff did not raise the regulations as a bar to offset in her brief in opposition to the Government’s petition for a writ of certiorari, see this Court’s Rule 15.2, or in the proceedings below. The split exists in the Social Security context because the Social Security Act (SSA), 49 Stat. 620, as amended, 42 U. S. C. § 301 et seq., provides for payment of attorney’s fees awards directly to counsel, see § 406(b)(1)(A), and until 2006 the Government in many cases treated fees awards under EAJA the same way, see Reply Brief for Petitioner 13-14. Ratliff argues that fees awarded under 42 U. S. C. § 406(b) can never be “‘refund[ed]’” in this sense because SSA fees are “never paid initially to the client.” Brief for Respondent 14 (emphasis in original). That is not accurate. As we have explained, Social Security claimants and attorneys normally enter into contingent-fee agreements that are subject to judicial “review for reasonableness.” Gisbrecht v. Barnhart, 535 U. S. 789, 809 (2002). Where the court allows a fee, § 406(b) permits the Commissioner to collect the approved fee out of the client’s benefit award and to certify the fee for “payment to such attorney out of” that award. § 406(b)(1)(A). In such cases, the attorney would “refun[d]” the fee to the client in the event that the attorney also receives a (larger) EAJA award, because the attorney “reeeive[d]” the SSA fee from the client’s funds. Similarly inaccurate is Ratliff’s suggestion that our construction of EAJA §206(b)’s reference to “refun[d]” would preclude attorneys from collecting any fees from a prevailing party until both SSA and EAJA payments are awarded. Our construction does not alter or preclude what we have recognized as courts’ common practice of awarding EAJA fees at the time a court remands a case to the Social Security Administration (Administration) for benefits proceedings. Such awards often allow attorneys to collect EAJA fees months before any fees are awarded under 42 U. S. C. § 406(b), because § 406(b) fees cannot be determined until the Administration enters a final benefits ruling. See Shalala v. Schaefer, 509 U. S. 292, 295-302 (1993). Section 1988(b) provides that in actions covered by the statute and subject to exceptions not relevant here, “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee.” Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

F

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Per Curiam. Effective January 1, 1988, Florida exempted newspapers, but not magazines, from its sales tax. See Fla. Stat. §§ 212.08(7)(w), 212.05(1)(i) (Supp. 1988). In 1990, the Florida Supreme Court found this classification invalid under the First Amendment of the Constitution of the United States. See Department of Revenue v. Magazine Publishers of America, Inc., 565 So. 2d 1304 (1990), vacated and remanded, Miami Herald Publishing Co. v. Dept. of Revenue, 499 U. S. 972 (1991), reaff’d, 604 So. 2d 459 (1992). In the wake of this ruling, Newsweek, a magazine, filed a claim for a refund of sales taxes it had paid between 1988 and 1990. See Fla. Stat. § 215.26(1) (Supp. 1998) (“The Comptroller of the state may refund ... any moneys paid into the State Treasury”). When the Department of Revenue denied the refund, Newsweek filed suit, alleging the State’s failure to accord it retroactive relief violated its due process rights under McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U. S. 18 (1990). The Florida trial court granted summary judgment against Newsweek, and the District Court of Appeal affirmed. Although acknowledging McKesson’s requirement of “meaningful backward-looking relief” when a taxpayer is forced to pay a tax before having an opportunity to establish its uneonstitutionality, the District Court of Appeal held: “McKesson is distinguishable because that holding was expressly predicated upon the fact that the taxpayer had no meaningful predeprivation remedy.” 689 So. 2d 361, 363 (1997). The court interpreted Florida law to permit prepayment tax challenges by filing an action and paying the contested amount into the court registry, posting a bond, or obtaining a court order approving an alternative arrangement. See id., at 363-364 (citing Fla. Stat. § 72.011 (1987)). The court concluded Newsweek was afforded due process because it could have pursued this prepayment remedy without suffering onerous penalties. See 689 So. 2d, at 364. The District Court of Appeal’s decision failed to consider our decision in Reich v. Collins, 513 U. S. 106 (1994). There, the Georgia Supreme Court had rejected a taxpayer’s refund claim filed pursuant to a general refund statute, dismissing any due process concerns because a predeprivation remedy was available. See id., at 110. While assuming the constitutional adequacy of Georgia’s predeprivation procedures, we nonetheless reversed because “no reasonable taxpayer would have thought that [the predeprivation procedures] represented, in light of the apparent applicability of the refund statute, the exclusive remedy for unlawful taxes.” Id., at 111 (emphasis deleted). Until the Georgia Supreme Court’s ruling, the taxpayer had no way of knowing from either the statutory language of case law that he could not pursue a postpayment refund and was relegated to a predep-rivation remedy. See id., at 111-112. We emphasized a State “has the flexibility to maintain an exclusively predepri-vation remedial scheme, so long as that scheme is ‘clear and certain.’ ” Id., at 110-111. But a State may not “bait and switch” by “holding] out what plainly appears to be a ‘clear and certain’ postdeprivation remedy and then declare, only after the disputed taxes have been paid, that no such remedy exists.” Id., at 111, 108. Under Florida law, there was a longstanding practice of permitting taxpayers to seek refunds under § 215.26 for taxes paid under an unconstitutional statute. See, e.g., State ex rel. Hardaway Contracting Co. v. Lee, 155 Fla. 724, 21 So. 2d 211 (1945). At Florida’s urging, federal courts have dismissed taxpayer challenges, including constitutional challenges, because §215.26 appeared to provide an adequate postpayment remedy for refunds. See Tax Injunction Act, 28 U. S. C. § 1341 (“The district courts shall not enjoin . . . any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State”); see, e. g., Osceola v. Florida Dept. of Revenue, 893 F. 2d 1231, 1233 (CA11 1990); Rendon v. State of Fla., 930 F. Supp. 601 (SD Fla. 1996). This Court, too, has interpreted Florida law to provide a postpayment remedy. See McKesson, supra, at 24, n. 4 (“It appears . .. Florida law does not require a taxpayer to pay under protest in order to preserve the right to challenge a remittance in a postpayment refund action”). The State does not dispute this settled understanding. The effect of the District Court of Appeal’s decision below, however, was to cut off Newsweek’s recourse to § 215.26. While Florida may be free to require taxpayers to litigate first and pay later, due process prevents it from applying this requirement to taxpayers, like Newsweek, who reasonably relied on the apparent availability of a postpayment refund when paying the tax. Newsweek is entitled to a clear and certain remedy and thus it can use the refund procedures to adjudicate the merits of its claim. We grant the petition for a writ of certio-rari, vacate the judgment, and remand the case for proceedings not inconsistent with this opinion. It is so ordered. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Chief Justice Roberts delivered the opinion of the Court. Our Constitution divided the “powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial.” INS v. Chadha, 462 U. S. 919, 951 (1983). Article II vests “[t]he executive Power... in a President of the United States of America,” who must “take Care that the Laws be faithfully executed.” Art. II, § 1, cl. 1; id., § 3. In light of “[t]he impossibility that one man should be able to perform all the great business of the State,” the Constitution provides for executive officers to “assist the supreme Magistrate in discharging the duties of his trust.” 30 Writings of George Washington 334 (J. Fitzpatrick ed. 1939). Since 1789, the Constitution has been understood to empower the President to keep these officers accountable — by removing them from office, if necessary. See generally Myers v. United States, 272 U. S. 52 (1926). This Court has determined, however, that this authority is not without limit. In Humphrey’s Executor v. United States, 295 U. S. 602 (1935), we held that Congress can, under certain circumstances, create independent agencies run by principal officers appointed by the President, whom the President may not remove at will but only for good cause. Likewise, in United States v. Perkins, 116 U. S. 483 (1886), and Morrison v. Olson, 487 U. S. 654 (1988), the Court sustained similar restrictions on the power of principal executive officers— themselves responsible to the President — to remove their own inferiors. The parties do not ask us to reexamine any of these precedents, and we do not do so. We are asked, however, to consider a new situation not yet encountered by the Court. The question is whether these separate layers of protection may be combined. May the President be restricted in his ability to remove a principal officer, who is in turn restricted in his ability to remove an inferior officer, even though that inferior officer determines the policy and enforces the laws of the United States? We hold that such multilevel protection from removal is contrary to Article IPs vesting of the executive power in the President. The President cannot “take Care that the Laws be faithfully executed” if he cannot oversee the faithfulness of the officers who execute them. Here the President cannot remove an officer who enjoys more than one level of good-cause protection, even if the President determines that the officer is neglecting his duties or discharging them improperly. That judgment is instead committed to another officer, who may or may not agree with the President’s determination, and whom the President cannot remove simply because that officer disagrees with him. This contravenes the President’s “constitutional obligation to ensure the faithful execution of the laws.” Id., at 693. I A After a series of celebrated accounting debacles, Congress enacted the Sarbanes-Oxley Act of 2002, 116 Stat. 745. Among other measures, the Act introduced tighter regulation of the accounting industry under a new Public Company Accounting Oversight Board. The Board is composed of five members, appointed to staggered 5-year terms by the Securities and Exchange Commission. It was modeled on private self-regulatory organizations in the securities industry — such as the New York Stock Exchange — that investigate and discipline their own members subject to Commission oversight. Congress created the Board as a private “nonprofit corporation,” and Board members and employees are not considered Government “officer[s] or employ-eels]” for statutory purposes. 15 U. S. C. §§ 7211(a), (b). The Board can thus recruit its members and employees from the private sector by paying salaries far above the standard Government pay scale. See §§ 7211(f)(4), 7219. Unlike the self-regulatory organizations, however, the Board is a Government-created, Government-appointed entity, with expansive powers to govern an entire industry. Every accounting firm — both foreign and domestic — that participates in auditing public companies under the securities laws must register with the Board, pay it an annual fee, and comply with its rules and oversight. §§ 7211(a), 7212(a), (f), 7213, 7216(a)(1). The Board is charged with enforcing the Sarbanes-Oxley Act, the securities laws, the Commission’s rules, its own rules, and professional accounting standards. §§ 7215(b)(1), (e)(4). To this end, the Board may regulate every detail of an accounting firm’s practice, including hiring and professional development, promotion, supervision of audit work, the acceptance of new business and the continuation of old, internal inspection procedures, professional ethics rules, and “such other requirements as the Board may prescribe.” § 7213(a)(2)(B). The Board promulgates auditing and ethics standards, performs routine inspections of all accounting firms, demands documents and testimony, and initiates formal investigations and disciplinary proceedings. §§7213-7215 (2006 ed. and Supp. II). The willful violation of any Board rule is treated as a willful violation of the Securities Exchange Act of 1934, 48 Stat. 881,15 U. S. C. § 78a et seq. — a federal crime punishable by up to 20 years’ imprisonment or $25 million in fines ($5 million for a natural person). §§ 78ff(a), 7202(b)(1) (2006 ed.). And the Board itself can issue severe sanctions in its disciplinary proceedings, up to and including the permanent revocation of a firm’s registration, a permanent ban on a person’s associating with any registered firm, and money penalties of $15 million ($750,000 for a natural person). § 7215(c)(4). Despite the provisions specifying that Board members are not Government officials for statutory purposes, the parties agree that the Board is “part of the-Government” for constitutional purposes, Lebron v. National Railroad Passenger Corporation, 513 U. S. 374, 397 (1995), and that its members are “‘Officers of the United States’ ” who “exercisje] significant authority pursuant to the laws of the United States,” Buckley v. Valeo, 424 U. S. 1, 125-126 (1976) (per curiam) (quoting Art. II, §2, cl. 2); cf. Brief for Petitioners 9, n. 1; Brief for United States 29, n. 8. The Act places the Board under the SEC’s oversight, particularly with respect to the issuance of rules or the imposition of sanctions (both of which are subject to Commission approval and alteration). §§7217(b)-(c). But the individual members of the Board — like the officers and directors of the self-regulatory organizations — are substantially insulated from the Commission’s control. The Commission cannot remove Board members at will, but only “for good cause shown,” “in accordance with” certain procedures. § 7211(e)(6). Those procedures require a Commission finding, “on the record” and “after notice and opportunity for a hearing,” that the Board member “(A) has willfully violated any provision of th[e] Act, the rules of the Board, or the securities laws; “(B) has willfully abused the authority of that member; or “(C) without reasonable justification or excuse, has failed to enforce compliance with any such provision or rule, or any professional standard by any registered public accounting firm or any associated person thereof.” § 7217(d)(3). Removal of a Board member requires a formal Commission order and is subject to judicial review. See 5 U. S. C. §§ 554(a), 556(a), 557(a), (c)(B); 15 U. S. C. §78y(a)(l). Similar procedures govern the Commission’s removal of officers and directors of the private self-regulatory organizations. See §78s(h)(4). The parties agree that the Commissioners cannot themselves be removed by the President except under the Humphrey’s Executor standard of “inefficiency, neglect of duty, or malfeasance in office,” 295 U. S., at 620 (internal quotation marks omitted); see Brief for Petitioners 31; Brief for United States 43; Brief for Respondent Public Company Accounting Oversight Board 31 (hereinafter PCAOB Brief); Tr. of Oral Arg. 47, and we decide the case with that understanding. B Beckstead and Watts, LLP, is a Nevada accounting firm registered with the Board. The Board inspected the firm, released a report critical of its auditing procedures, and began a formal investigation. Beckstead and Watts and the Free Enterprise Fund, a nonprofit organization of which the firm is a member, then sued the Board and its members, seeking (among other things) a declaratory judgment that the Board is unconstitutional and an injunction preventing the Board from exercising its powers. App. 71. Before the District Court, petitioners argued that the Sarbanes-Oxley Act contravened the separation of powers by conferring wide-ranging executive power on Board members without subjecting them to Presidential control. Id., at 67-68. Petitioners also challenged the Act under the Appointments Clause, which requires “Officers of the United States” to be appointed by the President with the Senate’s advice and consent. Art. II, § 2, cl. 2. The Clause provides an exception for “inferior Officers,” whose appointment Congress may choose to vest “in the President alone, in the Courts of Law, or in the Heads of Departments.” Ibid. Because the Board is appointed by the SEC, petitioners argued that (1) Board members are not “inferior Officers” who may be appointed by “Heads of Departments”; (2) even if they are, the Commission is not a “Department]”; and (3) even if it is, the several Commissioners (as opposed to the Chairman) are not its “Hea[d].” See App. 68-70. The United States intervened to defend the Act’s constitutionality. Both sides moved for summary judgment; the District Court determined that it had jurisdiction and granted summary judgment to respondents. App. to Pet. for Cert. 110a-117a. A divided Court of Appeals affirmed. 537 F. 3d 667 (CADC 2008). It agreed that the District Court had jurisdiction over petitioners’ claims. Id., at 671. On the merits, the Court of Appeals recognized that the removal issue was “a question of first impression,” as neither that court nor this one “ha[d] considered a situation where a restriction on removal passes through two levels of control.” Id., at 679. It ruled that the dual restraints on Board members’ removal are permissible because they do not “render the President unable to perform his constitutional duties.” Id., at 683. The majority reasoned that although the President “does not directly select or supervise the Board’s members,” id., at 681, the Board is subject to the comprehensive control of the Commission, and thus the President’s influence over the Commission implies a constitutionally sufficient influence over the Board as well. Id., at 682-683. The majority also held that Board members are inferior officers subject to the Commission’s direction and supervision, id., at 672-676, and that their appointment is otherwise consistent with the Appointments Clause, id., at 676-678. Judge Kavanaugh dissented. He agreed that the case was one of first impression, id., at 698, but argued that “the double for-cause removal provisions in the [Act]... combine to eliminate any meaningful Presidential control over the [Board],” id., at 697. Judge Kavanaugh also argued that Board members are not effectively supervised by the Commission and thus cannot be inferior officers under the Appointments Clause. Id., at 709-712. We granted certiorari. 556 U. S. 1234 (2009). II We first consider whether the District Court had jurisdiction. We agree with both courts below that the statutes providing for judicial review of Commission action did not prevent the District Court from considering petitioners’ claims. The Sarbanes-Oxley Act empowers the Commission to review any Board rule or sanction. See 15 U. S. C. §§ 7217(b)(2)-(4), (c)(2). Once the Commission has acted, aggrieved parties may challenge “a final order of the Commission” or “a rule of the Commission” in a court of appeals under § 78y, and “[n]o objection... may be considered by the court unless it was urged before the Commission or there was reasonable ground for failure to do so.” §§78y(a)(l), (b)(1), (c)(1). The Government reads § 78y as an exclusive route to review. But the text does not expressly limit the jurisdiction that other statutes confer on district courts. See, e. g., 28 U. S. C. §§ 1331, 2201. Nor does it do so implicitly. Provisions for agency review do not restrict judicial review unless the “statutory scheme” displays a “fairly discernible” intent to limit jurisdiction, and the claims at issue “are of the type Congress intended to be reviewed within th[e] statutory structure.” Thunder Basin Coal Co. v. Reich, 510 U. S. 200, 207, 212 (1994) (internal quotation marks omitted). Generally, when Congress creates procedures “designed to permit agency expertise to be brought to bear on particular problems,” those procedures “are to be exclusive.” Whitney Nat. Bank in Jefferson Parish v. Bank of New Orleans & Trust Co., 379 U. S. 411, 420 (1965). But we presume that Congress does not intend to limit jurisdiction if “a finding of preclusion could foreclose all meaningful judicial review”; if the suit is “wholly collateral to a statute’s review provisions”; and if the claims are “outside the agency’s expertise.” Thunder Basin, supra, at 212-213 (internal quotation marks omitted). These considerations point against any limitation on review here. We do not see how petitioners could meaningfully pursue their constitutional claims under the Government’s theory. Section 78y provides only for judicial review of Commission action, and not every Board action is encapsulated in a final Commission order or rule. The Government suggests that petitioners could first have sought Commission review of the Board’s “auditing standards, registration requirements, or other rules.” Brief for United States 16. But petitioners object to the Board’s existence, not to any of its auditing standards. Petitioners’ general challenge to the Board is “collateral” to any Commission orders or rules from which review might be sought. Cf. McNary v. Haitian Refugee Center, Inc., 498 U. S. 479, 491-492 (1991). Requiring petitioners to select and challenge a Board rule at random is an odd procedure for Congress to choose, especially because only new rules, and not existing ones, are subject to challenge. See 15 U. S. C. §§ 78s(b)(2), 78y(a)(1), 7217(b)(4). Alternatively, the Government advises petitioners to raise their claims by appealing a Board sanction. Brief for United States 16-17. But the investigation of Beckstead and Watts produced no sanction, see id., at 7, n. 5; Reply Brief for Petitioners 29, n. 11, and an uncomplimentary inspection report is not subject to judicial review, see § 7214(h)(2). So the Government proposes that Beckstead and Watts incur a sanction (such as a sizable fine) by ignoring Board requests for documents and testimony. Brief for United States 17. If the Commission then affirms, the firm will win access to a court of appeals — and severe punishment should its challenge fail. We normally do not require plaintiffs to “bet the farm... by taking the violative action” before “testing the validity of the law,” MedImmune, Inc. v. Genentech, Inc., 549 U. S. 118, 129 (2007); accord, Ex parte Young, 209 U. S. 123 (1908), and we do not consider this a “meaningful” avenue of relief, Thunder Basin, 510 U. S., at 212. Petitioners’ constitutional claims are also outside the Commission’s competence and expertise. In Thunder Basin, the petitioner’s primary claims were statutory; “at root... [they] ar[o]se under the Mine Act and f[e]ll squarely within the [agency’s] expertise,” given that the agency had “extensive experience” on the issue and had “recently addressed the precise... claims presented.” Id., at 214-215. Likewise, in United States v. Ruzicka, 329 U. S. 287 (1946), on which the Government relies, we reserved for the agency fact-, bound inquiries that, even if “formulated in constitutional terms,” rested ultimately on “factors that call for [an] understanding of the milk industry,” to which the Court made no pretensions. Id., at 294. No similar expertise is required here, and the statutory questions involved do not require “technical considerations of [agency] policy.” Johnson v. Robison, 415 U. S. 361, 373 (1974). They are instead standard questions of administrative law, which the courts are at no disadvantage in answering. We therefore conclude that § 78y did not strip the District Court of jurisdiction over these claims, which are properly presented for our review. III' We hold that the dual for-cause limitations on the removal of Board members contravene the Constitution’s separation of powers. A The Constitution provides that “[t]he executive Power shall be vested in a President of the United States of America.” Art. II, § 1, cl. 1. As Madison stated on the floor of the First Congress, “if any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws.” 1 Annals of Cong. 463 (1789). The removal of executive officers was discussed extensively in Congress when the first executive departments were created. The view that “prevailed, as most consonant to the text of the Constitution” and “to the requisite responsibility and harmony in the Executive Department,” was that the executive power included a power to oversee executive officers through removal; because that traditional executive power was not “expressly taken away, it remained with the President.” Letter from James Madison to Thomas Jefferson (June 30, 1789), 16 Documentary History of the First Federal Congress 893 (2004). “This Decision of 1789 provides contemporaneous and weighty evidence of the Constitution’s meaning since many of the Members of the First Congress had taken part in framing that instrument.” Bowsher v. Synar, 478 U. S. 714, 723-724 (1986) (internal quotation marks omitted). And it soon became the “settled and well understood construction of the Constitution.” Ex parte Hennen, 13 Pet. 230, 259 (1839). The landmark case of Myers v. United States reaffirmed the principle that Article II confers on the President “the general administrative control of those executing the laws.” 272 U. S., at 164. It is his responsibility to take care that the laws be faithfully executed. The buck stops with the President, in Harry Truman’s famous phrase. As we explained in Myers, the President therefore must have some “power of removing those for whom he can not continue to be responsible.” Id., at 117. Nearly a decade later in Humphrey’s Executor, this Court held that Myers did not prevent Congress from conferring good-cause tenure on the principal officers of certain independent agencies. That case concerned the members of the Federal Trade Commission, who held 7-year terms and could not be removed by the President except for “'inefficiency, neglect of duty, or malfeasance in office.’ ” 295 U. S., at 620 (quoting 15 U. S. C. § 41). The Court distinguished Myers on the ground that Myers concerned “an officer [who] is merely one of the units in the executive department and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aid he is.” 295 U. S., at 627. By contrast, the Court characterized the FTC as “quasi-legislative and quasi-judicial” rather than “purely executive,” and held that Congress could require it “to act... independently of executive control.” Id., at 627-629. Because “one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter’s will,” the Court held that Congress had power to “fix the period during which [the Commissioners] shall continue in office, and to forbid their removal except for cause in the meantime.” Id., at 629. Humphrey’s Executor did not address the removal of inferior officers, whose appointment Congress may vest in heads of departments. If Congress does so, it is ordinarily the department head, rather than the President, who enjoys the power of removal. See Myers, supra, at 119, 127; Hennen, supra, at 259-260. This Court has upheld for-cause limitations on that power as well. In Perkins, a naval cadet-engineer was honorably discharged from the Navy because his services were no longer required. 116 U. S. 483. He brought a claim for his salary under statutes barring his peacetime discharge except by a court-martial or by the Secretary of the Navy “for misconduct.” Rev. Stat. §§ 1229,1525. This Court adopted verbatim the reasoning of the Court of Claims, which had held that when Congress “ ‘vests the appointment of inferior officers in the heads of Departments [,] it may limit and restrict the power of removal as it deems best for the public interest.’ ” 116 U. S., at 485. Because Perkins had not been “ ‘dismissed for misconduct... [or upon] the sentence of a court-martial,’” the Court agreed that he was “‘still in office and... entitled to [his] pay.’” Ibid. We again considered the status of inferior officers in Morrison. That case concerned the Ethics in Government Act, which provided for an independent counsel to investigate allegations of crime by high executive officers. The counsel was appointed by a special court, wielded the full powers of a prosecutor, and was removable by the Attorney General only “ ‘for good cause.’ ” 487 U. S., at 663 (quoting 28 U. S. C. § 596(a)(1)). We recognized that the independent counsel was undoubtedly an executive officer, rather than “‘quasi-legislative’ ” or “ ‘quasi-judicial,’ ” but we stated as “our present considered view” that Congress had power to impose good-cause restrictions on her removal. 487 U. S., at 689-691. The Court noted that the statute “g[a]ve the Attorney-General,” an officer directly responsible to the President and “through [whom]” the President could act, “several means of supervising or controlling” the independent counsel — “[m]ost importantly... the power to remove the counsel for good cause.” Id., at 695-696 (internal quotation marks omitted). Under those circumstances, the Court sustained the statute. Morrison did not, however, address the consequences of more than one level of good-cause tenure — leaving the issue, as both the court and dissent below recognized, “a question of first impression” in this Court. 537 F. 3d, at 679; see id., at 698 (dissenting opinion). B As explained, we have previously upheld limited restrictions on the President’s removal power. In those cases, however, only one level of protected tenure separated the President from an officer exercising executive power. It was the President — or a subordinate he could remove at will — who decided whether the officer’s conduct merited removal under the good-cause standard. The Act before us does something quite different. It not only protects Board members from removal except for good cause, but withdraws from the President any decision on whether that good cause exists. That decision is vested instead in other tenured officers — the Commissioners — none of whom is subject to the President’s direct control. The result is a Board that is not accountable to the President, and a President who is not responsible for the Board. The added layer of tenure protection makes a difference. Without a layer of insulation between the Commission and the Board, the Commission could remove a Board member at any time, and therefore would be fully responsible for what the Board does. The President could then hold the Commission to account for its supervision of the Board, to the same extent that he may hold the Commission to account for everything else it does. A second level of tenure protection changes the nature of the President’s review. Now the Commission cannot remove a Board member at will. The President therefore cannot hold the Commission fully accountable for the Board’s conduct, to the same extent that he may hold the Commission accountable for everything else that it does. The Commissioners are not responsible for the Board’s actions. They are only responsible for their own determination of whether the Act’s rigorous good-cause standard is met. And even if the President disagrees with their determination, he is powerless to intervene — unless that determination is so unreasonable as to constitute “inefficiency, neglect of duty, or malfeasance in office.” Humphrey’s Executor, 295 U. S., at 620 (internal quotation marks omitted). This novel structure does not merely add to the Board’s independence, but transforms it. Neither the President, nor anyone directly responsible to him, nor even an officer whose conduct he may review only for good cause, has full control over the Board. The President is stripped of the power our precedents have preserved, and his ability to execute the laws — by holding his subordinates accountable for their conduct — is impaired. That arrangement is contrary to Article II’s vesting of the executive power in the President. Without the ability to oversee the Board, or to attribute the Board’s failings to those whom he can oversee, the President is no longer the judge of the Board’s conduct. He is not the one who decides whether Board members are abusing their offices or neglecting their duties. He can neither ensure that the laws are faithfully executed, nor be held responsible for a Board member’s breach of faith. This violates the basic principle that the President “cannot delegate ultimate responsibility or the active obligation to supervise that goes with it,” because Article II “makes a single President responsible for the actions of the Executive Branch.” Clinton v. Jones, 520 U. S. 681, 712-713 (1997) (Breyer, J., concurring in judgment). Indeed, if allowed to stand, this dispersion of responsibility could be multiplied. If Congress can shelter the bureaucracy behind two layers of good-cause tenure, why not a third? At oral argument, the Government was unwilling to concede that even jive layers between the President and the Board would be too many. Tr. of Oral Arg. 47-48. The officers of such an agency — safely encased within a Matryoshka doll of tenure protections — would be immune from Presidential oversight, even as they exercised power in the people’s name. Perhaps an individual President might find advantages in tying his own hands. But the separation of powers does not depend on the views of individual Presidents, see Freytag v. Commissioner, 501 U. S. 868, 879-880 (1991), nor on whether “the encroached-upon branch approves the encroachment,” New York v. United States, 505 U. S. 144, 182 (1992). The President can always choose to restrain himself in his dealings with subordinates. He cannot, however, choose to bind his successors by diminishing their powers, nor can he escape responsibility for his choices by pretending that they are not his own. The diffusion of power carries with it a diffusion of accountability. The people do not vote for the “Officers of the United States.” Art. II, §2, cl. 2. They instead look to the President to guide the “assistants or deputies... subject to his superintendence.” The Federalist No. 72, p. 487 (J. Cooke ed. 1961) (A. Hamilton). Without a clear and effective chain of command, the public cannot “determine on whom the blame or the punishment of a pernicious measure; or series of pernicious measures ought really to fall.” Id., No. 70, at 476 (same). That is why the Framers sought to ensure that “those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community.” 1 Annals of Cong., at 499 (J. Madison). By granting the Board executive power without the Executive’s oversight, this Act subverts the President’s ability to ensure that the laws are faithfully executed — as well as the public’s ability to pass judgment on his efforts. The Act’s restrictions are incompatible with the Constitution’s separation of powers. C Respondents and the dissent resist this conclusion, portraying the Board as “the kind of practical accommodation between the Legislature and the Executive that should be permitted in a ‘workable government.’” Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252, 276 (1991) (MWAA) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 843 U. S. 579, 635 (1952) (Jackson, J., concurring)); see, e. g., post, at 519 (opinion of Breyer, J.). According to the dissent, Congress may impose multiple levels of for-cause tenure between the President and his subordinates when it “rests agency independence upon the need for technical expertise.” Post, at 531. The Board’s mission is said to demand both “technical competence” and “apolitical expertise,” and its powers may only be exercised by “technical experts. ” Ibid, (internal quotation marks omitted). In this respect the statute creating the Board is, we are told, simply one example of the “vast numbers of statutes governing vast numbers of subjects, concerned with vast numbers of different problems, [that] provide for, or foresee, their execution or administration through the work of administrators organized within many different kinds of administrative structures, exercising different kinds of administrative authority, to achieve their legislatively mandated objectives.” Post, at 521. No one doubts Congress’s power to create a vast and varied federal bureaucracy. But where, in all this, is the role for oversight by an elected President? The Constitution requires that a President chosen by the entire Nation oversee the execution of the laws. And the “ Tact 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,’” for “‘[convenience and efficiency are not the primary objectives — or the hallmarks — of democratic government.’ ” Bowsher, 478 U. S., at 736 (quoting Chadha, 462 U. S., at 944). One can have a government that functions without being ruled by functionaries, and a government that benefits from expertise without being ruled by experts. Our Constitution was adopted to enable the people to govern themselves, through their elected leaders. The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive’s control, and thus from that of the people. This concern is largely absent from the dissent’s paean to the administrative state. For example, the dissent dismisses the importance of removal as a tool of supervision, concluding that the President’s “power to get something done” more often depends on “who controls the agency’s budget requests and funding, the relationships between one agency or department and another,... purely political factors (including Congress’ ability to assert influence)/’ and indeed whether particular unelected officials support or “resist” the President’s policies. Post, at 524, 526 (emphasis deleted). The Framers did not rest our liberties on such bureaucratic minutiae. As we said in Bowsher, supra, at 730, “[t]he 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.” In fact, the multilevel protection that the dissent endorses “provides a blueprint for extensive expansion of the legislative power.” MWAA, supra, at 277. In a system of checks and balances, “[pjower abhors a vacuum,” and one branch’s handicap is another’s strength. 537 F. 3d, at 695, n. 4 (Kavanaugh, J., dissenting) (internal quotation marks omitted). “Even when a branch does not arrogate power to itself,” therefore, it must not “impair another in the performance of its constitutional duties.” Loving v. United States, 517 U. S. 748, 757 (1996). Congress has plenary control over the salary, duties, and even existence of executive offices. Only Presidential oversight can counter its influence. That is why the Constitution vests certain powers in the President that “the Legislature has no right to diminish or modify.” 1 Annals of Cong., at 463 (J. Madison). The Framers created a structure in which “[a] dependence on the people” would be the “primary controul on the government.” The Federalist No. 51, at 349 (J. Madison). That dependence is maintained, not just by “parchment barriers,” id., No. 48, at 333 (same), but by letting “[ajmbition... counteract ambition,” giving each branch “the necessary constitutional means, and personal motives, to resist encroachments of the others,” id., No. 51, at 349. A key “constitutional means” vested in the President — perhaps the key means — was “the power of appointing, overseeing, and controlling those who execute the laws.” 1 Annals of Cong., at 463. And while a government of “opposite and rival interests” may sometimes inhibit the smooth functioning of administration, The Federalist No. 51, at 349, “[t]he Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty.” Bowsher, supra, at 730. Calls to abandon those protections in light of “the era’s perceived necessity,” New York, 505 U. S., at 187, are not unusual. Nor is the argument from bureaucratic expertise limited only to the field of accounting. The failures of accounting regulation may be a “pressing national problem,” but “a judiciary that licensed extraconstitutional government with each issue of comparable gravity would, in the long run, be far worse.” Id., at 187-188. Neither respondents nor the dissent explains why the Board’s task, unlike so many others, requires more than one layer of insulation from the President — or, for that matter, why only two. The point is not to take issue with for-cause limitations in general; we do not do that. The question here is far more modest. We deal with the unusual situation, never before addressed by the Court, of two layers of for-cause tenure. And though it may be criticized as “elementary arithmetical logic,” post, at 535, two layers are not the same as one. The President has been given the power to oversee executive officers; he is not limited, as in Harry Truman Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

M

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Me. Justice Brennan delivered the opinion of the Court. Petitioner, an orthodontist by profession, on January 31, 1969, purchased the stock and assumed the management of three corporations engaged in the food vending business. The corporations were indebted at the time of the purchase for approximately $250,000 of taxes, including federal wage and Federal Insurance Contribution Act (FICA) taxes withheld from employees’ wages prior to January 31. The sums withheld had not been paid over when due, however, but had been dissipated by the previous management before petitioner acquired the businesses. After petitioner assumed control, the corporations acquired funds sufficient to pay the taxes, but petitioner used the funds to pay employees’ wages, rent, suppliers, and other creditors, and to meet other day-to-day expenses incurred in operating the businesses. The question to be decided is whether, in these circumstances, petitioner is personally liable under § 6672 of the Internal Revenue Code of 1954, 26 U. S. C. § 6672 — which imposes personal liability for taxes on “[a]ny person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof...” — for the corporations’ unpaid taxes withheld from wages prior to his assumption of control. The Court of Appeals for the Sixth Circuit held that petitioner was personally liable under § 6672 for the unpaid taxes. 552 F. 2d 159 (1977). We granted certiorari. 434 U. S. 817 (1977). We reverse. I — I The case arose from the filing by the Internal Revenue Service (IRS) of a claim for the taxes in a proceeding instituted by petitioner in July 1969 for a real property arrangement under Chapter XII of the Bankruptcy Act. The facts determined after hearing by the bankruptcy judge, 74-2 USTC ¶ 9719 (ND Ohio 1974), are not challenged. Petitioner purchased and assumed managerial control of the Tas-Tee Catering, Tas-Tee Vending, and Charles Corporations on January 31, 1969. When he bought the stock, petitioner understood, and the purchase agreement reflected, that the corporations had an outstanding obligation for taxes in the amount of $250,000 due for payment on January 31, including withheld employee wage and FICA taxes (hereinafter trust-fund taxes). During the purchase negotiations, the sellers represented to petitioner that balances in the various corporate checking accounts were sufficient to pay these taxes as well as bills due other creditors. Relying on the representation, petitioner, on Saturday, February 1, sent four checks to the IRS in payment of the taxes. On Monday, February 3, petitioner discovered that the accounts were overdrawn and stopped payment on the checks. Thus, at the time that petitioner assumed control, the corporations had no liquid assets, and whatever trust-fund taxes had been collected prior to petitioner’s assumption of control had been dissipated. Petitioner immediately advised the IRS that the corporations had no funds with which to pay the taxes, and solicited guidance concerning how the corporations should proceed. App. 36. There was evidence that IRS officials advised petitioner that they had no objection to his continuing operations so long as current tax obligations were met, and that petitioner agreed to do so and to endeavor to pay the arrearages as soon as possible. Tr. 37-38. The IRS never represented that it would hold petitioner harmless under § 6672 for the back taxes, however. To continue operations, petitioner deposited personal funds in the corporate acount, and, to obtain inventory, agreed with certain suppliers to pay cash upon delivery. During petitioner’s tenure, from January 31 to July 15, 1969, the corporations’ gross receipts approximated $130,000 per week for the first few months but declined thereafter. The corporations “established a system of segregating funds for payment of withheld taxes and did, in fact, pay withheld taxes during the period February 1, 1969, to July 15, 1969.” App. 30. The bankruptcy judge found, and the IRS concedes, that the $249,212 in taxes paid during this period was approximately sufficient to defray current tax obligations. No taxes owing for periods prior to February 1, were paid, however, and in July 1969 the corporations terminated operations and filed for bankruptcy. II Several provisions of the Internal Revenue Code require third persons to collect taxes from the taxpayer. Among the more important are 26 U. S. C. §§ 3102 (a) and 3402 (a) (1970 ed. and Supp. V) which respectively require deduction from wages paid to employees of the employees’ share of FICA taxes, and the withholding tax on wages applicable to individual income taxes. The withheld sums are commonly referred to as “trust fund taxes,” reflecting the Code’s provision that such withholdings or collections are deemed to be a “special fund in trust for the United States.” 26 U. S. C. § 7601 (a). There is no general requirement that the withheld sums be segregated from the employer’s general funds, however, or that they be deposited in a separate bank account until required to be paid to the Treasury. Because the Code requires the employer to collect taxes as wages are paid, § 3102 (a), while requiring payment of such taxes only quarterly, the funds accumulated during the quarter can be a tempting source of ready cash to a failing corporation beleaguered by creditors. Once net wages are paid to the employee, the taxes withheld are credited to the employee regardless of whether they are paid by the employer, so that the IRS has recourse only against the employer for their payment. An employer who fails to pay taxes withheld from its employees’ wages is, of course, liable, for the taxes which should have been paid, §§ 3102 (b) and 3403. The IRS has several means at its disposal to effect payment of the taxes so withheld. First, once it has been determined that an employer has been inexcusably delinquent, the IRS, upon giving hand-delivered notice, may require the employer, thereafter, and until further notice, to deposit withheld taxes in a special bank trust account within two banking days after collection, to be retained there until required to be paid to the Treasury at the quarter’s end. § 7512. Second, with respect to trust funds past due prior to any such notification, the amount collected or withheld “shall be held to be a special fund in trust for the United States [and] [t]he amount of such fund shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations (including penalties) as are applicable with respect to the taxes from which such fund arose.” 26 U. S. C. § 7501. Thus there is made applicable to employment taxes withheld but not paid the full range of collection methods available for the collection of taxes generally. After assessment, notice, and demand, the IRS may, therefore, create a lien upon the property of the employer, § 6321, and levy, distrain, and sell the employer’s property in satisfaction. §§ 6331 to 6344 (1970 ed. and Supp. V). Third, penalties may be assessed against the delinquent employer. Section 6656 of the Code imposes a penalty of 5 % of the underpayment of any tax required to be deposited, and 26 U. S. C. §§ 7202 and 7215 provide criminal penalties respectively for willful failure to “collect or truthfully account for and pay over” trust-fund taxes, and for failure to comply with the requirements of § 7512, discussed supra, regarding special accounting requirements upon notice by the Secretary. Finally, as in this case, the officers or employees of the employer responsible for effectuating the collection and payment of trust-fund taxes who willfully fail to do so are made personally liable to a “penalty” equal to the amount of the delinquent taxes. Section 6672 provides, inter alia: “Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over....” Section 6671 (b) defines “person,” for purposes of § 6672, as including “an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs.” Also, § 7202 of the Code, which tracks the wording of § 6672, makes a violation punishable as a felony subject to a fine of $10,000, and imprisonment for 5 years. Thus, an employer-official or other employee responsible for collecting and paying taxes who willfully fails to do so is subject to both a civil penalty equivalent to 100% of the taxes not collected or paid, and to a felony conviction. Only the application to petitioner of the civil penalty provision, § 6672, is at issue in this case. Ill When the same individual or individuals who caused the delinquency in any tax quarter are also the “responsible persons” at the time the Government’s efforts to collect from the employer have failed, and it seeks recourse against the “responsible employees,” see IRS Policy Statement P-5-60, IRS Manual, MT 1218-56 (Feb. 25, 1976), there is no question that § 6672 is applicable to them. It is the situation that arises when there has been a change of control of the employer enterprise, here corporations, prior to the expiration of a tax quarter, or at a time when a tax delinquency for past quarters already exists that creates the question for our decision. In this case, petitioner assumed control at a time when a delinquency existed for unpaid trust-fund taxes, while the specific funds withheld but not paid had been dissipated by predecessor officers and when the corporations had no liquid assets with which to pay the overdue taxes. A Petitioner concedes that he was subject to personal liability under § 6672 as a person responsible for the collection, accounting, and payment of employment taxes required to be withheld between January 31, 1969, when he assumed control of the corporations, and July 15, 1969, when he resigned. Tr. of Oral Arg. 8. His contention is that he was not, however, a responsible person within § 6672 with respect to taxes withheld prior to his assumption of control and that § 6672 consequently imposed no duty upon him to pay the taxes collected by his predecessors. Petitioner argues that this construction of § 6672 follows necessarily from the statute’s limitation of personal liability to “[a]ny person required to collect, truthfully account for and pay over any tax imposed by this title,” who willfully fails to discharge those responsibilities (emphasis added). He argues that since the obligations are phrased in the conjunctive, a person can be subject to the section only if all three duties — (1) to collect, (2) truthfully account for, and (3) pay over — were applicable to him with respect to the tax dollars in question. See McCullough v. United States, 462 F. 2d 588 (CA5 1972). On the other hand, as the Government argues, the language could be construed as describing, in terms of their general responsibilities, the persons potentially liable under the statute, without regard to whether those persons were in a position to perform all of the duties with respect to the specific tax dollars in question. Although neither construction is inconsistent with the language of the statute, we reject petitioner’s as inconsistent with its purpose. Sections 6672 and 7202 were designed to assure compliance by the employer with its obligation to withhold and pay the sums withheld, by subjecting the employer’s officials responsible for the employer’s decisions regarding withholding and payment to civil and criminal penalties for the employer’s delinquency. If § 6672 were given petitioner’s construction, the penalties easily could be evaded by changes in officials’ responsibilities prior to the expiration of any quarter. Because the duty to pay over the tax arises only at the quarter’s end, a “responsible person” who willfully failed to collect taxes would escape personal liability for that failure simply by resigning his position, and transferring to another the deci-sionmaking responsibility prior to the quarter’s end. Ob-versely, a “responsible person” assuming control prior to the quarter’s end could, without incurring personal liability under § 6672, willfully dissipate the trust funds collected and segregated by his predecessor. That this result, obviously at odds with the statute’s purpose to assure payment of withheld taxes, was not intended is buttressed by the history of the provision. The predecessor of § 6672, § 1308 (c), Revenue Act of 1918, 40 Stat. 1143, provided, inter alia: “Any person who willfully refuses to pay, collect, or truly account for and pay over [taxes enumerated in § 1308 (a)] shall... be liable to a penalty of the amount of the tax evaded or not paid, collected, or accounted for and paid over....” The statute remained unchanged in this respect until 1954 when the successor section to § 1308 (c) was revised to its present form. Both before and after the 1954 revision the “person” potentially liable under the statute was defined in a separate provision, § 1308 (d), succeeded by present § 6671 (b), as, including “an officer or employee of a corporation or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs.” When, in 1954, Congress added' the phrase modifying “person”'— “Any person required to collect, truthfully account for, and pay over any tax imposed by this title” — it was not seeking further to describe the class of persons defined in § 6671 (b) upon whom fell the responsibility for collecting taxes, but was attempting to clarify the type of tax to which the penalty section was applicable. Since under the 1954 amendment the penalty would otherwise be applicable to “any tax imposed by this title,” the phrase modifying “person” was necessary to insure that the penalty provided by that section would be read as applicable only to failure to pay taxes which require collection, that is, third-party taxes, and not failure to pay “any tax imposed by this title,” which, of course, would include direct taxes such as employer FICA and income taxes. As both the House and Senate Committees expressed it, “the application of this penalty is limited only to the collected or withheld taxes which are imposed on some person other than the person who is required to collect, account for and pay over, the tax.” Thus, by adding the phrase modifying “person,” Congress was attempting to clarify the type of tax to which the penalty section was applicable, perhaps inartfully, by reference to the duty of the person required to collect them. This view is supported by the fact that the Commissioner of Internal Revenue issued a regulation shortly after the amendment, limiting the application of the § 6672 penalty to third-party taxes. 22 Fed. Reg. 9148 (1957), now codified as Treas. Reg. § 301.6672-1, 26 CFR § 301.6672-1 (1977). We conclude therefore that the phrase “[a]ny person required to collect, truthfully account for, and pay over any tax imposed by this title” was meant to limit § 6672 to persons responsible for collection of third-party taxes and not to limit it to those persons in a position to perform all three of the enumerated duties with respect to the tax dollars in question. We turn then to the Government’s contention that petitioner was subject to personal liability under § 6672 when during the period in which he was a responsible person, the corporations generated gross receipts sufficient to pay the back taxes, but used the funds for other purposes. B Although at the time petitioner became a responsible person the trust-fund taxes had been dissipated and the corporations had no liquid assets, the Government contends that § 6672 imposed civil liability upon petitioner because sums received from sales in carrying on the businesses after January 31, 1969, were impressed with a trust in favor of the United States for the satisfaction of overdue employment taxes, and petitioner’s willful use of those funds to pay creditors other than the United States, violated the obligation to “pay over" imposed by § 6672. The Government does not argue that the statute requires a “responsible person” to liquidate corporate assets to pay the back taxes upon assuming control, however; it argues only that a trust was impressed on all cash received by the corporations. Tr. of Oral Arg. 26, 28-29, 30-31, 32. We think that that construction of § 6672 would not advance the statute’s purpose and, moreover, is inconsistent with the context and legislative history of the provision and its relation to the Code’s priority rule applicable to collection of back taxes. (1) The Government argues that its construction of the statute is necessary to effectuate the congressional purpose to assure collection and payment of taxes. Although that construction might in this case garner tax dollars otherwise uncollectible, its long-term effect arguably would more likely frustrate than aid the IRS’s collection efforts. At the time petitioner assumed control, the corporations owed back taxes, were overdue on their supplier accounts, and had no cash. To the extent that the corporations had assets unencumbered by liens superior to a tax lien, the IRS could satisfy its claim by levy and sale. But as will often be the case, the corporations here apparently did not have such assets. The Government admits that in such circumstances, the IRS’s practice is to be “flexible,” Tr. of Oral Arg. 27, 28, 32, 48, and does not insist that the corporation discontinue operations, thereby substituting for certain loss at least the potential of recovering back taxes if the corporation makes a financial recovery. It argues nevertheless that the “responsible person” renders himself personally liable to the § 6672 penalty by using gross receipts to purchase inventory or pay wages, or even by using personal funds for those purposes, so long as any third-party employment tax bill remains unpaid. Thus, although it is in the IRS’s interest to encourage the responsible person to continue operation with the hope of receiving payment of the back taxes, if the attempt fails and the taxes remain unpaid, the IRS insists that the § 6672 personal-liability penalty attached upon payment of the first dollar to a supplier. The practical effect of that construction of the statute would be that a well-counseled person contemplating assuming control of a financially beleaguered corporation owing back employment taxes would recognize that he could do so without incurring personal civil and criminal penalties only if there were available sufficient borrowed or personal funds fully to pay all back employment taxes before doing any business. If that course is unattractive or unavailable,o the corporation, the Government will be remitted to its claim in bankruptcy. When an immediate filing for bankruptcy means a total loss, the Government understandably, as it did here, does not discourage the corporation from continuing to operate so long as current taxes are paid. As soon as the corporation embarks upon that course, however, the “responsible person” is potentially liable to heavy civil and criminal penalties not for doing anything which compromised the Government’s collection efforts, but for doing what the Government regards as maximizing its chances for recovery. As construed by the Government, § 6672 would merely discourage changes of ownership and management of financially troubled corporations and the infusion of equity or debt funding which might accompany it without encouraging employer compliance with tax obligations or facilitating collection of back taxes. Thus, recovery of employer taxes would likely be limited to the situation in which the prospective purchaser or management official is ignorant of § 6672. (2) As noted in the previous section, § 6672 as construed by the Government would, in effect, make the responsible person assuming control of a business a guarantor for payment of the delinquent taxes simply by undertaking to continue operation of the business. That construction is precluded by the history and context of § 6672 and cognate provisions of the Code. Section 6672 cannot be read as imposing upon the responsible person an absolute duty to “pay over” amounts which should have been collected and withheld. The fact that the provision imposes a “penalty” and is violated only by a “willful failure” is itself strong evidence that it was not intended to impose liability without personal fault. Congress, moreover, has not made corporate officers personally liable for the corporation’s tax obligations generally, and § 6672 therefore should be construed in a way which respects that policy choice. The Government’s concession — that § 6672 does not impose a duty on the responsible officer to use personal funds or even to liquidate corporate assets to satisfy the tax obligations- — ■ recognizes that the “pay over” requirement does not impose an absolute duty on the responsible person to pay back taxes. Recognizing that the statute cannot be construed to impose liability without fault, the Government characterizes petitioner’s use of gross receipts for payment of operating expenses as a breach of trust, arguing that a trust was impressed on all after-acquired cash. Nothing whatever in § 6672 or its legislative history suggests that the effect of the requirement to “pay over” was to impress a trust on the corporation’s after-acquired cash, however. Moreover, the history of a related section, 26 U. S. C. § 7501, makes clear that it was not. Section 7501 of the Code provides, inter alia, that the “amount of tax... collected or withheld shall be held to be a special fund in trust for the United States [which] shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations (including penalties) as are applicable with respect to the taxes from which such fund arose.” This section was enacted in 1934. Act of May 10, 1934, ch. 277, § 607, 48 Stat. 768, 26 U. S. C. § 3661 (1952 ed.). The provision was added to H. R. 7835, 73d Cong., 2d Sess., by the Senate Finance Committee, which explained: “Under existing law the liability of the person collecting and withholding the taxes to pay over the amount is merely a debt, and he cannot be treated as a trustee or proceeded against by distraint. Section [607] of the bill as reported impresses the amount of taxes withheld or collected with a trust and makes applicable for the enforcement of the Government’s claim the administrative provisions for assessment and collection of taxes.” S. Rep. No. 558, 73d Cong., 2d Sess., 53 (1934). Since the very reason for adding § 7501 was, as the Senate Report states, that “the liability of the person collecting and withholding the taxes... is merely a debt” (emphasis added), § 6672, whose predecessor section was enacted in 1919 while the debt concept prevailed, hardly could have been intended to impose a trust on after-acquired cash. We further reject the argument that § 7501, whose trust concept may be viewed as having modified the duty imposed under § 6672, can be construed as establishing a fiduciary obligation to pay over after-acquired cash unrelated to the withholding taxes. The language of § 7501 limits the trust to "the amount of the taxes withheld or collected.” (Emphasis added.) Comparing that language with § 6672, which imposes liability for a willful failure to collect as well as failure to pay over, makes clear that under § 7501 there must be a nexus between the funds collected and the trust created. That construction is consistent with the accepted principle of trust law requiring tracing of misappropriated trust funds into the trustee’s estate in order for an impressed trust to arise. See D. Dobbs, Handbook on the Law of Remedies 424-425 (1973). Finally, for the reasons discussed in the next section, a construction of § 7501 or § 6672 as imposing a trust on all after-acquired corporate funds without regard to the interests of others in those funds would conflict with the priority rules applicable to the collection of back taxes. (3) We developed in Part II, supra, that the Code affords the IRS several means to collect back taxes, including levy, distraint, and sale. But the IRS is not given the power to levy on property in the hands of the taxpayer beyond the extent of the taxpayer’s interest in the property, and the Code specifically subordinates tax liens to the interests of certain others in the property, generally including those with a perfected security interest in the property. For example, the Code and established decisional principles subordinate the tax lien to perfected security interests arising before the filing of the tax lien, to certain perfected security interests in certain collateral, including inventory, arising after the tax lien filing when pursuant to a security agreement entered into before the filing, and to collateral which is the subject of a purchase-money mortgage regardless of whether the agreement was entered into before or after filing of the tax lien. As a consequence, secured parties often will have interests in certain proceeds superior to the tax lien, and it is unlikely, moreover, that corporations in the position of those involved here could continue in operation without making some payments to secured creditors under the terms of security agreements. Those payments may well take the form of cash or accounts receivable, which like other property may be subject to a security interest, when, for example, the security agreement covers the proceeds of inventory the purchase of which is financed by the secured party, or the security agreement requires the debtor to make payments under a purchase-money mortgage by assigning accounts receivable which are the proceeds of inventory financed by the mortgage. Thus, although the IRS is powerless to attach assets in which a secured party has a superior interest, it would impose a penalty under § 6672 if the responsible person fails to divert the secured party’s proceeds to the Treasury without regard to whether the secured party’s interests are superior to those of the Government. Surely Congress did not intend § 6672 to hammer the responsible person with the threat of heavy civil and criminal penalties to pay over proceeds in which the Code does not assert a priority interest. IV We hold that a "responsible person” under § 6672 may violate the “pay over” requirement of that statute by willfully failing to pay over trust funds collected prior to his accession to control when at the time he assumed control the corporation has funds impressed with a trust under § 7501, but that § 7501 does not impress a trust on after-acquired funds, and that the responsible person consequently does not violate § 6672 by willfully using employer funds for purposes other than satisfaction of the trust-fund tax claims of the United States when at the time he assumed control there were no funds with which to satisfy the tax obligation and the funds thereafter generated are not directly traceable to collected taxes referred to by that statute. That portion of the judgment of the Court of Appeals on the Government’s cross-appeal holding petitioner liable under § 6672 for wage withholding and FICA taxes required to be collected from employees’ wages prior to January 31,1969, is Reversed. In the Court of Appeals, petitioner appealed from a decision of the District Court holding him liable for withholding taxes for the period February 1 to July 15, 1969. The Court of Appeals -reversed, 552 F. 2d, at 161-163, and review of that holding was not sought here. Only the decision on the Government's cross-appeal holding petitioner liable for withholding taxes collected prior to January 31 is before us. Id., at 163-165. See Treas. Regs. §§ 31.6011 (a)-l (a) (1) and 31.6011 (a)-4, 26 CFR §§31.6011 (a)-1 (a)(1) and 31.6011 (a)-4 (1977), regarding return filing requirements. Treasury Reg. § 31.6151 (a), 26 CFR § 31.6151 (a) (1977), requires that the tax be paid when the return is due for filing. Treasury Reg. § 31.6011 (a)-5, 26 CFR § 31.6011 (a)-5 (1977), provides that monthly returns may be required in lieu of quarterly returns at the direction of the District Director. See also 26 U. S. C. §7512 (b). See United States v. Sotelo, post, at 277-278, n. 10. See Moore v. United States, 465 F, 2d 514, 517 (CA5 1972); Dillard v. Patterson, 326 F. 2d 302, 304 (CA5 1963); United States Fidelity & Guaranty Co. v. United States, 201 F. 2d 118, 120 (CA10 1952). This at the least is the administrative practice. See Brief for United States 10-11. Assessment is made by recording the liability of the taxpayer in the office of the Secretary of the Treasury, 26 U. S. C. § 6203, and notice of the assessment and demand for payment generally are required to be made within 60 days of the assessment. 26 U. S. C. § 6303 (a). Section 7202 provides: “Any person required under this title to collect, account for, and pay over any tax imposed by this title who willfully fails to collect or truthfully account for and pay over such tax shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, together with the costs of prosecution.” The cases which have been decided under § 6672 generally refer to the "person required to collect, truthfully account for, and pay over any tax imposed by this title” by the shorthand phrase “responsible person.” We use that phrase without necessarily adopting any of the constructions placed upon it in the decisions. Petitioner argues that his construction of the statute is consistent with imposition of § 6672 liability upon a “responsible person” removed before the end of the quarter, explaining that in such case § 6672 liability would attach because “[w]hile the taxpayer was removed as a responsible officer before the time payment was required to be made, he nevertheless came under the requirement of making the payment when he collected the taxes.” Brief for Petitioner 9 (emphasis in original). “All three elements required to charge the taxpayer with the penalty... did in fact converge.” Ibid. If that is so, we fail to see why all three elements did not “converge” when petitioner assumed control. In both circumstances liability is asserted under the statute as to a person not in a position to fulfill each of the duties with respect to the specific tax dollars in question. Moreover, apart from any illogic from which that argument suffers, it is highly dubious that Congress intended the words of the statute to create the almost metaplwsical distinction suggested by petitioner’s argument between a choate duty to perform all three functions upon one in control at the start of a tax quarter and an inchoate duty as to one assuming control in mid-quarter. Although petitioner argues that neither § 6672 nor any other provision of the Code imposes liability in this situation, he suggested at oral argument that liability might lie under ordinary trust principles. Tr. of Oral Arg. 14, 20-21. As introduced in the House, H. R. 12863, 65th Cong., 2d Sess., § 1308 (1918), § 1308 was a re-enactment of existing law. Revenue Act of 1917, ch. 63, § 1004, 40 Stat. 325-326. The Senate Finance Committee completely rewrote the section, adding the major penalty provisions which have since continuously existed in the Code. The Committee Reports do not shed any light on the problem at hand, however. Between 1918 and 1954, the only change in § 1308 (c), other than renumbering in the various Codes, see n. 11, infra, was that effected by the Revenue Act of 1924, ch. 234, §1017 (d), 43 Stat. 344, which changed the word “refuses” in the 1918 Act to “fails,” and which in § 1017 (b), the predecessor of Internal Revenue Code of 1954, 26 U. S. C. § 7202, changed the penalty from a misdemeanor to a felony. Under the 1939 Code, the successor provisions to § 1308 (c) were separately codified with each of the third-party collection taxes to which they were applicable. 26 U. S. C. § 2557 (b) (4) (1952 ed.) (narcotics) ; 26 U. S. C. §2707 (a) (1952 ed.) (firearms); 26 U. S. C. §1821 (a)(3) (1952 ed.) (documents); 26 U. S. C. § 1718 (c) (1952 ed.) (admissions and dues). S. Rep. No. 1622, 83d Cong., 2d Sess., 596 (1954); H. R. Rep. No. 1337, 83d Cong., 2d Sess., A420 (1954). The complete text of the Senate Report’s discussion of §6672 is as follows: “This section is identical with that of the House bill. “This section is similar to certain sections of existing law which prescribe a penalty equal to the total amount of the tax evaded, not collected, or not accounted for and paid over, in the case of willful failure to collect, or to truthfully account for and pay over, any tax imposed by this title, or willful attempt in any manner to evade or defeat such tax. However, the application of this penalty is limited only to the collected or withhéld taxes which are imposed on some person other than the person who is required to collect, account for and pay over, the tax. Under existing law this penalty is not applicable in any case in which the additions to the tax in the case of delinquency or fraud are applicable. Under this section the additions to the tax provided by section 6653, relating to negligence or fraud, shall not be applied for any offense to which this section is applicable.” (Emphasis added.) The House Report is nearly identical. See Rubin v. United States, 380 F. Supp. 1176, 1179 (WD Pa. 1974), aff’d, 515 F. 2d 507 (CA3 1975); Louisville Credit Men’s Assn., Inc. v. United States, 73-2 USTC ¶ 9740 (ED Ky. 1970); Tiffany v. United States, 228 F. Supp. 700 (NJ 1963). See, e. g., Sorenson v. United States, 521 F. 2d 325, 327 (CA9 1975). The court reasoned that payment of creditors from personal funds Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

L

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. This cause came on this date for final adjudication upon the Report of Special Master, and the Court, being fully advised in the premises, finds that the Report of Special Master should be adopted and approved as submitted, and a final Decree entered accordingly. DECREE It Is Ordered, Adjudged, and Decreed That: 1. The Report of Special Master is hereby adopted and approved in its entirety, as submitted. 2. This Decree determines the geographical location of the common boundary between the States of Oklahoma and Arkansas in a particular area bordered by Le Flore County, Oklahoma, and Sebastian County, Arkansas. More particularly, this Decree determines which State has sovereign control over a tract of land (the “disputed tract”) which is shown by the “Original Field Notes of Township 8 and 9 North Range 32 West” of the original government surveyor, William Clarkson, Jr., dated December 28, 1828, and by the map of the United States Surveyor John Fisher prepared in 1904 to contain approximately 55 acres bounded on the east by the western boundary of the Territory of Arkansas in 1828 and the State of Arkansas in 1904, and bounded on the west by the Poteau and Arkansas Rivers. 3. The disputed tract was included in certain lands ceded by the United States to the Choctaw Indian Nation in 1820. In the “Treaty with the [Western] Cherokees, 1828,” the western boundary of the Territory of Arkansas was defined as follows: “The Western boundary of Arkansas shall be, and the same is, hereby defined, viz: A line shall be run, commencing on Red River, at the point where the Eastern Choctaw line strikes said River, and run due North with said line to the River Arkansas, thence in a direct line to the South West corner of Missouri.” 7 Stat. 311 (May 6, 1828). When the State of Arkansas was admitted to the Union in 1836, the Congress of the.United States adopted the line described above in the Treaty of 1828 as the western boundary of the State of Arkansas. 5 Stat. 50 (June 15, 1836). 4. In 1905, the Congress of the United States gave the “consent of the United States” to the State of Arkansas to extend the western boundary of Arkansas to include the disputed tract by a Congressional Act which became a law of the United States, reading in part as follows: “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the consent of the United States is hereby given for the State of Arkansas to extend her western boundary line so as to include all that strip of land in the Indian Territory lying and being situate between the Arkansas State line adjacent to the city of Fort Smith, Arkansas, and the Arkansas and Poteau rivers, described as follows, namely: Beginning at a point on the south bank of the Arkansas River one hundred paces east of old Fort Smith, where the western boundary line of the State of Arkansas crosses the said river, and running southwesterly along the south bank of the Arkansas River to the mouth of the Poteau; thence at right angles with the Poteau River to the center of the current of said river; thence southerly up the middle of the current of the Poteau River (except where the Arkansas State line intersects the Poteau River) to a point in the middle of the current of the Poteau River opposite the mouth of Mill Creek, and where it is intersected by the middle of the current of Mill Creek; thence up the middle of Mill Creek to the Arkansas State line; thence northerly along the Arkansas State line to the point of beginning . . . Act of February 10, 1905, 33 Stat. 714. 5. The Congress of the United States and the State of Arkansas had the power, acting together, to extend the western boundary of the State of Arkansas in 1905, , without the consent of the Choctaw and Chickasaw Nations to the alteration of the eastern boundary of their lands. The Congress of the United States had the power to unilaterally consent to a change in the boundary of the Choctaw and Chickasaw lands and to transfer sovereign control over the disputed tract to the State of Arkansas. The Congress of the United States fully exercised, this power in the Act of February 10, 1905, quoted in paragraph 4 above. On February 16, 1905, the State of Arkansas took appropriate legislative action to extend its western boundary as permitted by the consent of the United States in the portion of the Congressional Act quoted above in paragraph 4. Act No. 41, February 16, 1905 (now codified as Ark. Stat. Ann. § 5-101 (Repl. 1976)). Thus, the disputed tract became part of the State of Arkansas in 1905 by the joint action of the Congress of the United States and the State of Arkansas, and remains so to this day. 6. The parties stipulated that the State of Arkansas has exercised continuous sovereignty, dominion, control, and exclusive criminal and civil jurisdiction over the disputed tract since the enactment of Act No. 41 by the Arkansas Legislature on February 16, 1905; that Sebastian County, Arkansas, has continuously levied and collected real property taxes within the disputed tract; and that Le Flore County, Oklahoma, has never levied or collected taxes within the disputed tract. Pursuant to the holding in California v. Nevada, 447 U. S. 125 (1980), the doctrine of acquiescence applies to the boundary dispute between the State of Oklahoma and the State of Arkansas. Therefore, as a separate ground, the disputed tract has become and continues to be a part of the State of Arkansas under the doctrine of acquiescence. 7. The disputed tract of land is a part of the State of Arkansas. 8. Judgment be, and it is hereby, entered in favor of the State .of Arkansas and against the State of Oklahoma, dismissing the claims of the State of Oklahoma with prejudiced 9. All costs are hereby taxed against the State of Oklahoma. All such costs have been paid by the State of Oklahoma. . The Special Master is hereby discharged. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

K

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Per Curiam. The writ of certiorari is dismissed as improvidently granted. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

I

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Scalia delivered the opinion of the Court. The question before us is whether Title II of the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 337, 42 U. S. C. § 12131 et seq., which prohibits a “public entity” from discriminating against a “qualified individual with a disability” on account of that individual's disability, see § 12132, covers inmates in state prisons. Respondent Ronald Yeskey was such an inmate, sentenced in May 1994 to serve 18 to 36 months in a Pennsylvania correctional facility. The sentencing court recommended that he be placed in Pennsylvania’s Motivational Boot Camp for first-time offenders, the successful completion of which would have led to his release on parole in just six months. See Pa. Stat. Ann., Tit. 61, § 1121 et seq. (Purdon Supp. 1998). Because of his medical history of hypertension, however, he was refused admission. He filed this suit against petitioners, the Commonwealth of Pennsylvania’s Department of Corrections and several department officials, alleging that his exclusion from the Boot Camp violated the ADA. The District Court dismissed for failure to state a claim, Fed. Rule Civ. Proc. 12(b)(6), holding the ADA inapplicable to inmates in state prisons; the Third Circuit reversed, 118 F. 3d 168 (1997); we granted certiorari, 522 U. S. 1086 (1998). Petitioners argue that state prisoners are not covered by the ADA for the same reason we held in Gregory v. Ashcroft, 501 U. S. 452 (1991), that state judges were not covered by the Age Discrimination in Employment Act of 1967 (ADE A), 29 U. S. C. §621 et seq. Gregory relied on the canon of construction that absent an “unmistakably clear” expression of intent to “alter the usual constitutional balance between the States and the Federal Government,” we will interpret a statute to preserve rather than destroy the States’ “substantial sovereign powers.” 501 U. S., at 460-461 (citations and internal quotation marks omitted). It may well be that exercising ultimate control over the management of state prisons, like establishing the qualifications of state government officials, is a traditional and essential state function subject to the plain-statement rule of Gregory. “One of the primary functions of government,” we have said, “is the preservation of societal order through enforcement of the criminal law, and the maintenance of penal institutions is an essential part of that task.” Procunier v. Martinez, 416 U. S. 396, 412 (1974), overruled on other grounds, Thornburgh v. Abbott, 490 U. S. 401, 414 (1989). “It is difficult to imagine an activity in which a State has a stronger interest,” Preiser v. Rodriguez, 411 U. S. 475, 491 (1973). Assuming, without deciding, that the plain-statement rule does govern application of the ADA to the administration of state prisons, we think the requirement of the rule is amply met: the statute’s language unmistakably includes State prisons and prisoners within its coverage. The situation here is not comparable to that in Gregory. There, although the ADEA plainly covered state employees, it contained an exception for “'appointee[s] on the policymaking level’” which made it impossible for us to “conclude that the statute plainly eover[ed] appointed state judges.” 501 U. S., at 467. Here, the ADA plainly covers state institutions without any exception that could cast the coverage of prisons into doubt. Title II of the ADA provides: State prisons fall squarely within the statutory definition of “public entity,” which includes “any department, agency, special purpose district, or other instrumentality of a State or States or local government.” § 12131(1)(B). “Subject to the provisions of this subehapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U. S. C. § 12132. Petitioners contend that the phrase “benefits of the services, programs, or activities of a public entity,” § 12132, creates an ambiguity, because state prisons do not provide prisoners with “benefits” of “programs, services, or activities” as those terms are ordinarily understood. We disagree. Modern prisons provide inmates with many recreational “activities,” medical “services,” and educational and vocational “programs,” all of which at least theoretically “benefit” the prisoners (and any of which disabled prisoners could be “excluded from participation in”). See Block v. Rutherford, 468 U. S. 576, 580 (1984) (referring to “contact visitation program”); Hudson v. Palmer, 468 U. S. 517, 552 (1984) (discussing “rehabilitative programs and services”); Olim v. Wakinekona, 461 U. S. 238, 246 (1983) (referring to “appropriate correctional programs for all offenders”), indeed, the statute establishing the Motivational Boot Camp at issue in this very case refers to it as a “program.” Pa. Stat. Ann., Tit. 61, § 1123 (Purdon Supp. 1998). The text of the ADA provides no basis for distinguishing these programs, services, and activities from those provided by public entities that are not prisons. We also disagree with petitioners’ contention that the term “qualified individual with a disability” is ambiguous insofar as concerns its application to state prisoners. The statute defines the term to include anyone with a disability “who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U. S. C. § 12131(2). Petitioners argue that the words “eligibility” and “participation” imply voluntariness on the part of an applicant who seeks a benefit from the State, and thus do not connote prisoners who are being held against their will. This is wrong on two counts: First, because the words do not connote vol-untariness. See, e. g., Webster’s New International Dictionary 831 (2d ed. 1949) (“eligible”: “Fitted or qualified to be chosen or elected; legally or morally suitable; as, an eligible candidate”); id,, at 1782 (“participate”: “To have a share in common with others; to partake; share, as in a debate”). While “eligible” individuals “participate” voluntarily in many programs, services, and activities, there are others for which they are “eligible” in which “participation” is mandatory. A drug addict convicted of drug possession, for example, might, as part of his sentence, be required to “participate” in a drug treatment program for which only addicts are “eligible.” And secondly, even if the words did connote voluntariness, it would still not be true that all prison “services,” “programs,” and “activities” are excluded from the ADA because participation in them is not voluntary. The prison law library, for example, is a service (and the use of it an activity), which prisoners are free to take or leave. Cf. Gabel v. Lynaugh, 835 F. 2d 124, 125, n. 1 (CA5 1988) (per curiam) (“pro se civil rights litigation has become a recreational activity for state prisoners”). In the very ease at hand, the governing law makes it clear that participation in the Boot Camp program is voluntary. See Pa. Stat. Ann., Tit. 61, § 1126(a) (Purdon Supp. 1998) (“An eligible inmate may make an application to the motivational boot camp selection committee for permission to participate in the motivational boot camp program”); § 1126(c) (“[c]onditio[n]” of “participation]” is that applicant “agree to be bound by” certain “terms and conditions”). Finally, petitioners point out that the statute’s statement of findings and purpose, 42 U. S. C. § 12101, does not mention prisons and prisoners. That is perhaps questionable, since the provision’s reference to discrimination “in such critical areas as . . . institutionalization,”' § 12101(a)(3), can be thought to include penal institutions. But assuming it to be true, and assuming further that it proves, as petitioners contend, that Congress did not “envisio[n] that the ADA would be applied to state prisoners,” Brief for Petitioners 13-14, in the context of an unambiguous statutory text that is irrelevant. As we have said before, the fact that a statute can be “‘applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.’ ” Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 499 (1985) (citation omitted). Our conclusion that the text of the ADA is not ambiguous causes us also to reject petitioners’ appeal to the doctrine of constitutional doubt, which requires that we interpret statutes to avoid “grave and doubtful constitutional questions,” United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 408 (1909). That doctrine enters in only “where a statute is susceptible of two constructions,” ibid. And for the same reason we disregard petitioners’ invocation of the statute’s title, “Public Services,” 104 Stat. 337. “[T]he title of a statute... cannot limit the plain meaning of the text. For interpretive purposes, [it is] of use only when [it] shed[s] light on some ambiguous word or phrase.” Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519, 528-529 (1947). We do not address another issue presented by petitioners: whether application of the ADA to state prisons is a constitutional exercise of Congress’s power under either the Commerce Clause, compare Printz v. United States, 521 U. S. 898 (1997), with Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), or §5 of the Fourteenth Amendment, see City of Boerne v. Flores, 521 U. S. 507 (1997). Petitioners raise this question in their brief, see Brief for Petitioners 22-23, but it was addressed by neither the District Court nor the Court of Appeals, where petitioners raised only the Gregory plain-statement issue. “Where issues are neither raised before nor considered by the Court of Appeals, this Court will not ordinarily consider them.” Adickes v. S. H. Kress & Co., 398 U. S. 144, 147, n. 2 (1970) (citations omitted). See also Dothard v. Rawlinson, 433 U. S. 321, 323, n. 1 (1977); Duignan v. United States, 274 U. S. 195, 200 (1927). We decline to do so here. * * * Because the plain text of Title II of the ADA unambiguously extends to state prison inmates, the judgment of the Court of Appeals is affirmed. It is so ordered. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Minton delivered the opinion of the Court. The question in this case is whether a claim for relief under the so-called Carmack Amendment to the Interstate Commerce Act has been stated against respondent carrier. The District Court held that a claim within the Amendment had not been stated. The Court of Appeals for the Fifth Circuit affirmed by a divided court. 176 F. 2d 13. Because the case presents an issue of importance in the application of a federal statute governing liability of common carriers for damage to goods transported by them, we granted certiorari. 338 U. S. 890. The Carmack Amendment in pertinent part provides: “Any common carrier, railroad, or transportation company subject to the provisions of this chapter receiving property for transportation from a point in one State or Territory or the District of Columbia to a point in another State, Territory, District of Columbia, or from any point in the United States to a point in an adjacent foreign country shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass within the United States or within an adjacent foreign country when transported on a through bill of lading ....’’ 34 Stat. 593, 595, as amended, 49 U. S. C. § 20 (11). Respondent railroad received a shipment of wool and skins at New Orleans, Louisiana, for transportation to Boston, Massachusetts, by way of its line and connecting carriers, and issued its original through bill of lading for the shipment. Petitioner, who alleged that he was the lawful holder of the bill of lading and owner of the goods, sued respondent, as receiving carrier under the Carmack Amendment, for damages, asserting that the shipment was in good order and condition when received by respondent at New Orleans and was damaged on arrival in Boston. Respondent filed a motion to dismiss on the ground that the complaint did not state a claim against respondent upon which relief could be granted. The Court of Appeals affirmed the District Court’s order granting this motion and dismissing the suit. It is not disputed that if these were all the facts in the case the courts below were in error. Clearly respondent is a common carrier subject to the Act, and a claim for relief against respondent, as receiving carrier, on account of damage to a shipment of goods moving from a point in one state to a point in another state was pleaded under the Carmack Amendment. See Galveston, H. & S. A. R. Co. v. Wallace, 223 U. S. 481. But from a stipulation filed in the District Court and considered with the pleadings, we learn that the shipment originated in Buenos Aires, Argentina. The goods were transported by steamship from there to New Orleans on an ocean bill of lading, freight for which was payable at Buenos Aires. What is stipulated to be an accurate English translation of the ocean bill of lading reads in part: “The SHIPPER, SHIP, CONSIGNEE, DESTINATION AND GOODS which are specified in this bill of lading are the following: SHIPPER: Emilio Rosier S. R. L. SHIP: RIO PARANA PORT OF SHIPMENT: Buenos Aires PORT OF DISCHARGE OF THE SHIP New Orleans destination of the goods: _ (if the goods are to be transshipped out of the port of discharge) SHIPPER TO THE ORDER OF: The First National Bank of Boston Notice of arrival should be addressed to (if consigned to Shipper’s Order) Rudolf Reider 39 South Street Boston Mass. U.S.A.” The domestic bill of lading issued by respondent at New Orleans recited that the goods were received from H. P. Lambert Co. and consigned to the same H. P. Lambert Co. at Boston. The Court of Appeals characterized this railroad bill as a “supplemental bill of lading” issued by the domestic carrier to cover its portion of the transportation and delivery of a “through foreign shipment,” and held that the Carmack Amendment was not intended to apply to such a foreign shipment. The tests laid down in United States v. Erie R. Co., 280 U. S. 98, and Texas & New Orleans R. Co. v. Sabine Tram Co., 227 U. S. 111, were applied by the Court of Appeals in determining that the transaction was a “through foreign shipment.” And Missouri Pacific R. Co. v. Porter, 273 U. S. 341, was relied on as authority for the proposition that the Carmack Amendment was not intended to apply to such a shipment. Reliance on the cited cases is misplaced. The issue in the Porter case, supra, was totally different from the question here. And whether the commerce is properly characterized as foreign or domestic is, in our view of the case, not material. The issue is whether this transaction is within the Carmack Amendment. But basically, the problem here is one of liability. The contract giving rise to liability— the bill of lading — is our primary aid in solving that problem. So we turn to the contract to ascertain whether it evidences a transaction within the Carmack Amendment. Does the fact that the shipment in this case originated in a foreign country take it without the Carmack Amendment? We think not. There was no through bill of lading from Buenos Aires to Boston. The record does not show the slightest privity between respondent and the ocean carrier. The contract for ocean transportation terminated at New Orleans. Having terminated, nothing of it remained for the new, separate, and distinct domestic contract of carriage to “supplement.” Even the parties to the ocean bill of lading and the domestic bill of lading were different. If the various parties dealing with this shipment separated the carriage into distinct portions by their contracts, it is not for courts judicially to meld the portions into something they are not. The test is not where the shipment originated, but where the obligation of the carrier as receiving carrier originated. Rice v. Oregon Short Line R. Co., 33 Idaho 565, 198 P. 161; Barrett v. Northern Pacific R. Co., 29 Idaho 139, 157 P. 1016; Baltimore & Ohio R. Co. v. Montgomery & Co., 19 Ga. App. 29, 90 S. E. 740. Thus it is not significant that the shipment in this case originated in a foreign country, since the foreign portion of the journey terminated at the border of the United States. The obligation as receiving carrier originated when respondent issued its original through bill of lading at New Orleans. That contract of carriage was squarely within the provisions of the statute. The case of Alwine v. Pennsylvania R. Co., 141 Pa. Super. 558, 15 A. 2d 507, much relied upon by respondent and the Court of Appeals, is not in point. We need not now determine whether that case was correctly decided. For purposes of this case it is sufficient to note that there the Pennsylvania court emphasized that the shipment came into this country on a through bill of lading from Canada. The contract of carriage did not terminate at the border, as in the instant case. Nor does Mexican Light & Power Co. v. Texas Mexican R. Co., 331 U. S. 731, aid respondent. There an export shipment on a through bill of lading from Pennsylvania to the international boundary, destined for a point in Mexico, was damaged in Mexico. The Texas Mexican Co., the last in a series of carriers handling the shipment in this country, issued a second bill of lading at Laredo, Texas, for the carriage on into Mexico. Recovery was sought against the Texas Mexican Co. as initial (receiving) carrier under the Carmack Amendment. This Court held that it was not a receiving carrier because its duties were controlled by the first bill, and the second bill was without consideration and void. As the dissenting judge below said: “That case rules nothing as to a reverse shipment . . . .” And it could hardly be contended that respondent’s domestic bill of lading here was void. As a matter of fact, the shipment in this case could not have moved an inch beyond New Orleans under the ocean bill; and the Carmack Amendment required respondent to issue a through bill of lading for the carriage from New Orleans to Boston. We disavow, as did both the concurring judge and the dissenting judge below, any intimation that our holding might impose liability on a domestic carrier for damage attributable to an ocean carrier. The complaint in this case alleges that the shipment was received by respondent in good order and condition and was damaged when delivered. Unless petitioner can prove the case stated by his complaint, respondent is not liable. The purpose of the Carmack Amendment was to relieve shippers of the burden of searching out a particular negligent carrier from among the often numerous carriers handling an interstate shipment of goods. To hold otherwise than we do would immunize from the beneficial provisions of the Amendment all shipments originating in a foreign country when reshipped via the very transportation chain with which the Amendment was most concerned. Respondent was the receiving carrier squarely within the wording and meaning of the Carmack Amendment. The judgment of the Court of Appeals is Reversed. Mr. Justice Douglas and Mr. Justice Jackson took no part in the consideration or decision of this case. The Court there briefly alluded to the coverage of the Carmack Amendment. But the sole issue in the Porter case was whether federal regulation of bills of lading had covered the field to the exclusion of state regulation of the same subject matter. The Court’s discussion of the Carmack Amendment there does not control our decision in this case. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Burton delivered the opinion of the Court. This action, presenting multiple claims for relief, was brought by Mackey and another in the United States District Court for the Northern District of Illinois, Eastern Division, in 1953. The court expressly directed that judgment be entered for the defendant, Sears, Roebuck & Co., on two, but less than all, of the claims presented. It also expressly determined that there was no just reason for delay in making the entry. After Mackey’s notice of appeal from that judgment to the Court of Appeals for the Seventh Circuit, Sears, Roebuck & Co. moved to dismiss the appeal for lack of appellate jurisdiction. The Court of Appeals upheld its jurisdiction and denied the motion, relying upon 28 U. S. C. § 1291 and Rule 54 (b) of the Federal Rules of Civil Procedure, as amended in 1946. 218 F. 2d 295. Because of the importance of the issue in determining appellate jurisdiction and because of a conflict of judicial views on the subject, we granted certiorari. 348 U. S. 970. For the reasons hereafter stated, we sustain the Court of Appeals and its appellate jurisdiction. Although we are here concerned with the present ap-pealability of the judgment of the District Court and not with its merits, we must examine the claims stated in the complaint so as to consider adequately the issue of appealability. The complaint contains six counts. We disregard the fifth because it has been abandoned and the sixth because it duplicates others. The claims stated in Counts I and II are material and have been dismissed without leave to amend. The claim contained in Count III and that in amended Count IV are at issue on the answers filed by Sears, Roebuck & Co. The appeal before us is from a judgment striking out Counts I and II without disturbing Counts III and IV, and the question presented is whether such a judgment is presently appealable when the District Court, pursuant to amended Rule 54 (b), has made “an express determination that there is no just reason for delay” and has given “an express direction for the entry of judgment.” In Count I, Mackey, a citizen of Illinois, and Time Saver Tools, Inc., an Illinois corporation owned by Mackey, are the original plaintiffs and the respondents here. Sears, Roebuck & Co., a New York corporation doing business in Illinois, is the original defendant and the petitioner here. Mackey charges Sears with conduct violating the Sherman Antitrust Act in a manner prejudicial to three of Mackey’s commercial ventures causing him $190,000 damages, for which he seeks $570,000 as treble damages. His first charge is unlawful destruction by Sears, since 1949, of the market for nursery lamps manufactured by General Metalcraft Company, a corporation wholly owned by Mackey. Mackey claims that this caused him a loss of $150,000. His second charge is unlawful interference by Sears, in 1952, with Mackey’s contract to sell, on commission, certain tools and other products of the Vascoloy-Ramet Corporation, causing Mackey to lose $15,000. His third charge is unlawful destruction by Sears, in 1952, of the market for a new type of carbide-tipped lathe bit and for other articles manufactured by Time Saver Tools, Inc., resulting in a loss to Mackey of $25,000. Mackey combines such charges with allegations that Sears has used its great size to monopolize commerce and restrain competition in these fields. He asks for damages and equitable relief. In Count II, Mackey claims federal jurisdiction by virtue of diversity of citizenship. He incorporates the allegations of Count I as to the Metalcraft transactions and asks for $250,000 damages for Sears’ wilful destruction of the business of Metalcraft, plus $50,000 for Mackey’s loss on obligations guaranteed by him. In Count III, Mackey seeks $75,000 in a common-law proceeding against Sears for unlawfully inducing a breach of his Yascoloy commission contract. In Count IV, Time Saver seeks $200,000 in a common-law proceeding against Sears for unlawfully destroying Time Saver’s business by unfair competition and patent infringement. The jurisdiction of the Court of Appeals to entertain Mackey’s appeal from the District Court’s judgment depends upon 28 U. S. C. § 1291, which provides that “The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . . .” (Emphasis supplied.) If Mackey’s complaint had contained only Count I, there is no doubt that a judgment striking out that count and thus dismissing, in its entirety, the claim there stated would be both a final and an appealable decision within the meaning of § 1291. Similarly, if his complaint had contained Counts I, II, III and IV, there is no doubt that a judgment striking out all four would be a final and appealable decision under § 1291. The controversy before us arises solely because, in this multiple claims action, the District Court has dismissed the claims stated in Counts I and II, but has left unadjudicated those stated in Counts III and IV. Before the adoption of the Federal Rules of Civil Procedure in 1939, such a situation was generally regarded as leaving the appellate court without jurisdiction- of an attempted appeal. It was thought that, although the judgment was a final decision on the respective claims in Counts I and II, it obviously was not a final decision of the whole case, and there was no authority for treating anything less than the whole case as a judicial unit for purposes of appeal. This construction of the judicial unit was developed from the common law which had dealt with litigation generally less complicated than much of that of today. With the Federal Rules of Civil Procedure, there came an increased opportunity for the liberal joinder of claims in multiple claims actions. This, in turn, demonstrated a need for relaxing the restrictions upon what should be treated as a judicial unit for purposes of appellate jurisdiction. Sound judicial administration did not require relaxation of the standard of finality in the disposition of the individual adjudicated claims for the purpose of their appealability. It did, however, demonstrate that, at least in multiple claims actions, some final decisions, on less than all of the claims, should be appealable without waiting for a final decision on all of the claims. Largely to meet this need, in 1939, Rule 54 (b) was promulgated in its original form through joint action of Congress and this Court. It read as follows: “(b) Judgment at Various Stages. When more than one claim for relief is presented in an action, the court at any stage, upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, may enter a judgment disposing of such claim. The judgment shall terminate the action with respect to the claim so disposed of and the action shall proceed as to the remaining claims. In case a separate judgment is so entered, the court by order may stay its enforcement until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered.” It gave limited relief. The courts interpreted it as not relaxing the requirement of a “final decision” on each individual claim as the basis for an appeal, but as authorizing a limited relaxation of the former general practice that, in multiple claims actions, all the claims had to be finally decided before an appeal could be entertained from a final decision upon any of them. Thus, original Rule 54 (b) modified the single judicial unit theory but left unimpaired the statutory concept of finality prescribed by § 1291. However, it was soon found to be inherently difficult to determine by any automatic standard of unity which of several multiple claims were sufficiently separable from others to qualify for this relaxation of the unitary principle in favor of their appealability. The result was that the jurisdictional time for taking an appeal from a final decision on less than all of the claims in a multiple claims action in some instances expired earlier than was foreseen by the losing party. It thus became prudent to take immediate appeals in all cases of doubtful appealability and the volume of appellate proceedings was undesirably increased. Largely to overcome this difficulty, Rule 54 (b) was amended, in 1946, to take effect in 1948. Since then it has read as follows: “(b) Judgment Upon Multiple Claims. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.” (Emphasis supplied.) In this form, it does not relax the finality required of each decision, as an individual claim, to render it appeal-able, but it does provide a practical means of permitting an appeal to be taken from one or more final decisions on individual claims, in multiple claims actions, without waiting for final decisions to be rendered on all the claims in the case. The amended rule does not apply to a single claim action nor to a multiple claims action in which all of the claims have been finally decided. It is limited expressly to multiple claims actions in which “one or more but less than all” of the multiple claims have been finally decided and are found otherwise to be ready for appeal. To meet the demonstrated need for flexibility, the District Court is used as a “dispatcher.” It is permitted to determine, in the first instance, the appropriate time when each “final decision” upon “one or more but less than all” of the claims in a multiple claims action is ready for appeal. This arrangement already has lent welcome certainty to the appellate procedure. Its “negative effect” has met with uniform approval. The effect so referred to is the rule’s specific requirement that for “one or more but less than all” multiple claims to become appealable, the District Court must make both “an express determination that there is no just reason for delay” and “an express direction for the entry of judgment.” A party adversely affected by a final decision thus knows that his time for appeal will not run against him until this certification has been made. In the instant case, the District Court made this certification, but Sears, Roebuck & Co. nevertheless moved to dismiss the appeal for lack of appellate jurisdiction under § 1291. The grounds for such a motion ordinarily might be (1) that the judgment of the District Court was not a decision upon a “claim for relief,” (2) that the decision was not a “final decision” in the sense of an ultimate disposition of an individual claim entered in the course of a multiple claims action, or (3) that the District Court abused its discretion in certifying the order. In the case before us, there is no doubt that each of the claims dismissed is a “claim for relief” within the meaning of Rule 54 (b), or that their dismissal constitutes a “final decision” on individual claims. Also, it cannot well be argued that the claims stated in Counts I and II are so inherently inseparable from, or closely related to, those stated in Counts III and IV that the District Court has abused its discretion in certifying that there exists no just reason for delay. They certainly can be decided independently of each other. Petitioner contends that amended Rule 54 (b) attempts to make an unauthorized extension of § 1291. We disagree. It could readily be argued here that the claims stated in Counts I and II are sufficiently independent of those stated in Counts III and IV to satisfy the requirements of Rule 54 (b) even in its original form. If that were so, the decision dismissing them would also be appealable under the amended rule. It is nowhere contended today that a decision that would have been appealable under the original rule is not also appealable under the amended rule, provided the District Court makes the required certification. While it thus might be possible to hold that in this case the Court of Appeals had jurisdiction under original Rule 54 (b), there at least would be room for argument on the issue of whether the decided claims were separate and independent from those still pending in the District Court. Thus the instant case affords an excellent illustration of the value of the amended rule which was designed to overcome that difficulty. Assuming that the requirements of the original rule are not met in this case, we nevertheless are enabled to recognize the present appellate jurisdiction of the Court of Appeals under the amended rule. The District Court cannot, in the exercise of its discretion, treat as “final” that which is not “final” within the meaning of § 1291. But the District Court may, by the exercise of its discretion in the interest of sound judicial administration, release for appeal final decisions upon one or more, but less than all, claims in multiple claims actions. The timing of such a release is, with good reason, vested by the rule primarily in the discretion of the District Court as the one most likely to be familiar with the case and with any justifiable reasons for delay. With equally good reason, any abuse of that discretion remains reviewable by the Court of Appeals. Rule 54 (b), in its original form, thus may be said to have modified the single judicial unit practice which had been developed by court decisions. The validity of that rule is no longer questioned. In fact, it was applied by this Court in Reeves v. Beardall, 316 U. S. 283, without its validity being questioned. Rule 54 (b), in its amended form, is a comparable exercise of the rulemaking authority of this Court. It does not supersede any statute controlling appellate jurisdiction. It scrupulously recognizes the statutory requirement of a “final decision” under § 1291 as a basic requirement for an appeal to the Court of Appeals. It merely administers that requirement in a practical manner in multiple claims actions and does so by rule instead of by judicial decision. By its negative effect, it operates to restrict in a valid manner the number of appeals in multiple claims actions. We reach a like conclusion as to the validity of the amended rule where the District Court acts affirmatively and thus assists in properly timing the release of final decisions in multiple claims actions. The amended rule adapts the single judicial unit theory so that it better meets the current needs of judicial administration. Just as Rule 54 (b), in its original form, resulted in the release of some decisions on claims in multiple claims actions before they otherwise would have been released, so amended Rule 54 (b) now makes possible the release of more of such decisions subject to judicial supervision. The amended rule preserves the historic federal policy against piecemeal appeals in many cases more effectively than did the original rule. Accordingly, the appellate jurisdiction of the Court of Appeals is sustained, and its judgment denying the motion to dismiss the appeal for lack of appellate jurisdiction is Affirmed. For decisions directly or impliedly sustaining the validity of amended Rule 54 (b), as applied in the instant case, see Rieser v. Baltimore & O. R. Co., 224 F. 2d 198 (C. A. 2d Cir.), and cases cited at 203, n. 7; United Artists Corp. v. Masterpiece Productions, Inc., 221 F. 2d 213 (C. A. 2d Cir.); Clarksville v. United States, 198 F. 2d 238 (C. A. 4th Cir.); Boston Medical Supply Co. v. Lea & Febiger, 195 F. 2d 853 (C. A. 1st Cir.); Bendix Aviation Corp. v. Glass, 195 F. 2d 267 (C. A. 3d Cir.); Lopinsky v. Hertz Drive-Ur-Self Systems, Inc., 194 F. 2d 422 (C. A. 2d Cir.), concr. op. of Judge Clark, at 424-430; Pabellon v. Grace Line, Inc., 191 F. 2d 169 (C. A. 2d Cir.). See 6 Moore’s Federal Practice (2d ed. 1953) 220-230, and Note, 62 Yale L. J. 263. Contra: See Rieser v. Baltimore & O. R. Co., supra, concr. op. of Judge Frank, at 205-208; Bendix Aviation Corp. v. Glass, supra, concr. op. of Judge Hastie, at 277-282; Pabellon v. Grace Line, Inc., supra, concr. op. of Judge Frank, at 176-181; Flegenheimer v. General Mills, Inc., 191 F. 2d 237 (C. A. 2d Cir.). See also, Gold Seal Co. v. Weeks, 93 U. S. App. D. C. 249, 209 F. 2d 802. Sears also contends that the Court of Appeals misconstrued amended Rule 54 (b). See Flegenheimer v. General Mills, Inc., supra. The meaning of that rule is considered hereafter. At common law, a writ of error did not lie to review a judgment that failed to adjudicate every cause of action asserted in the controversy. See Holcombe v. McKusick, 20 How. 552; United States v. Girault, 11 How. 22; Metcalfe’s Case, 11 Co. Rep. 38a, 77 Eng. Rep. 1193. The rule generally followed in the federal courts was that, in a case involving a single plaintiff and a single defendant, a judgment was not appealable if it disposed of some, but less than all, of the claims presented. See Collins v. Miller, 252 U. S. 364; Sheppy v. Stevens, 200 F. 946 (C. A. 2d Cir.). In eases involving multiple parties where the alleged liability was joint, a judgment was not appealable unless it terminated the action as to all the defendants. See Hohorst v. Hamburg-American Packet Co., 148 U. S. 262. But if, in a multiple party case, a judgment finally disposed of a claim that was recognized to be separate and distinct from the others, that judgment, under some circumstances, was appealable. See Republic of China v. American Express Co., 190 F. 2d 334 (C. A. 2d Cir.). The appellate jurisdiction of the United States Courts of Appeals, with exceptions not directly pertinent here, is still largely restricted to the review of cases appealed under 28 U. S. C. § 1291. But see Forgay v. Conrad, 6 How. 201; Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541; 28 U. S. C. §§ 1292, 1651. The Supreme Court’s authority to promulgate the Federal Rules of Civil Procedure is derived from the Enabling Act, now appearing as 28 U. S. C. § 2072. It authorizes this Court to promulgate rules governing “the forms of process, writs, pleadings, and motions, and the practice and procedure of the district courts of the United States ... in civil actions.” It provides that such rules “shall not abridge, enlarge or modify any substantive right . . . .” And, by reason of Article I, § 8, of the Constitution, it has been held repeatedly that only Congress may define the jurisdiction of the lower federal courts. See Sibbach v. Wilson & Co., 312 U. S. 1; Baltimore Contractors, Inc. v. Bodinger, 348 U. S. 176; and Fed. Rules Civ. Proc., 82. “Such rules shall not take effect until they have been reported to Congress by the Chief Justice at or after the beginning of a regular session thereof but not later than the first day of May, and until the expiration of ninety days after they have been thus reported.” 28 U. S. C. § 2072. See Pabellon v. Grace Line, Inc., supra, at 174. “. . . situations arose where district courts made a piecemeal disposition of an action and entered what the parties thought amounted to a judgment, although a trial remained to be had on other claims similar or identical with those disposed of. In the interim the parties did not know their ultimate rights, and accordingly took an appeal, thus putting the finality of the partial judgment in question.” Report of Advisory Committee on Proposed Amendments to Rules of Civil Procedure 70-71 (June 1946). For favorable comment on this aspect of the rule, see Dickinson v. Petroleum Corp., 338 U. S. 507, 511-512. In the instant case, the claim dismissed by striking out Count I is based on the Sherman Act, while Counts III and IV do not rely on, or even refer to, that Act. They are largely predicated on common-law rights. The basis of liability in Count I is independent of that on which the claims in Counts III and IV depend. But the claim in Count I does rest in part on some of the facts that are involved in Counts III and IV. The claim stated in Count II is clearly independent of those in Counts III and IV. See Collins v. Metro-Goldwyn Pictures Corp., 106 F. 2d 83 (C. A. 2d Cir.), cited in Reeves v. Beardall, 316 U. S. 283. See Cobbledick v. United States, 309 U. S. 323. Mackey also argues that the Court of Appeals has jurisdiction under 28 U. S. C. § 1292 (1). In view of our disposition of this case, we do not reach that contention. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

I

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Stevens delivered the opinion of the Court. The question to be decided is whether a judgment in a class action determining that an employer did not engage in a general pattern or practice of racial discrimination against the certified class of employees precludes a class member from maintaining a subsequent civil action alleging an individual claim of racial discrimination against the employer. On March 22, 1977, the Equal Employment Opportunity Commission commenced a civil action against respondent, the Federal Reserve Bank of Richmond. Respondent operates a branch in Charlotte, N.. C. (the Bank), where during the years 1974-1978 it employed about 350-450 employees in several departments. The EEOC complaint alleged that the Bank was violating § 703(a) of Title VII of the Civil Rights Act of 1964 by engaging in “policies and practices” that included “failing and refusing to promote blacks because of race.” App. 9a. Six months after the EEOC filed its complaint, four individual employees were allowed to intervene as plaintiffs. In their “complaint in intervention,” these plaintiffs alleged that the Bank's employment practices violated 42 U. S. C. § 1981, as well as Title VII; that each of them was the victim of employment discrimination based on race; and that they could adequately represent a class of black employees against whom the Bank had discriminated because of their race. In due course, the District Court entered an order conditionally certifying the following class pursuant to Federal Rules of Civil Procedure 28(b)(2) and (3): “All black persons who have been employed by the defendant at its Charlotte Branch Office at any time since January 3, 1974 [6 months prior to the first charge filed by the intervenors with EEOC], who have been discriminated against in promotion, wages, job assignments and terms and conditions of employment because of their race.” After certifying the class, the District Court ordered that notice be published in the Charlotte newspapers and mailed to each individual member of the class. The notice described the status of the litigation, and plainly stated that members of the class “will be bound by the judgment or other determination” if they did not exclude themselves by sending a written notice to the Clerk. Among the recipients of the notice were Phyllis Baxter and five other individuals employed by the Bank. It is undisputed that these individuals — the Baxter petitioners — are members of the class represented by the intervening plaintiffs and that they made no attempt to exclude themselves from the class. At the trial the intervening plaintiffs, as well as the Baxter petitioners, testified. The District Court found that the Bank had engaged in a pattern and practice of discrimination from 1974 through 1978 by failing to afford black employees opportunities for advancement and assignment equal to opportunities afforded white employees in pay grades 4 and 5. Except as so specified, however, the District Court found that “there does not appear to be a pattern and practice of discrimination pervasive enough for the court to order relief.” App. to Pet. for Cert. 193a-194a. With respect to the claims of the four intervening plaintiffs, the court found that the Bank had discriminated against Cooper and Russell, but not against Moore and Hannah. Finally, the court somewhat cryptically stated that although it had an opinion about “the entitlement to relief of some of the class members who testified at trial,” it would defer decision of such matters to a further proceeding. Id., at 194a. Thereafter, on March 24, 1981, the Baxter petitioners moved to intervene, alleging that each had been denied a promotion for discriminatory reasons. With respect to Emma Ruffin, the court denied the motion because she was a member of the class for which relief had been ordered and therefore her rights would be protected in the Stage II proceedings to be held on the question of relief. With respect to the other five Baxter petitioners, the court also denied the motion, but for a different reason. It held that because all of them were employed in jobs above the grade 5 category, they were not entitled to any benefit from the court’s ruling with respect to discrimination in grades 4 and 5. The District Court stated: “The court has found no proof of any classwide discrimination above grade 5 and, therefore, they are not entitled to participate in any Stage II proceedings in this case.” Id., at 287a. The court added that it could “see no reason why, if any of the would be intervenors are actively interested in pursuing their claims, they cannot file a Section 1981 suit next week . . . .” Id., at 288a. A few days later the Baxter petitioners filed a separate action against the Bank alleging that each of them had been denied a promotion because of their race in violation of 42 U. S. C. § 1981. The Bank moved to dismiss the complaint on the ground that each of them was a member of the class that had been certified in the Cooper litigation, that each was employed in a grade other than 4 or 5, and that they were bound by the determination that there was no proof of any classwide discrimination above grade 5. The District Court denied the motion to dismiss, but certified its order for interlocutory appeal under 28 U. S. C. § 1292(b). The Bank’s interlocutory appeal from the order was then consolidated with the Bank’s pending appeal in the Cooper litigation. The United States Court of Appeals for the Fourth Circuit reversed the District Court’s judgment on the merits in the Cooper litigation, concluding that (1) there was insufficient evidence to establish a pattern or practice of racial discrimination in grades 4 and 5, and (2) two of the intervening plaintiffs had not been discriminated against on account of race. EEOC v. Federal Reserve Bank of Richmond, 698 F. 2d 633 (1983). The court further held that under the doctrine of res judicata, the judgment in the Cooper class action precluded the Baxter petitioners from maintaining their individual race discrimination claims against the Bank. The court thus reversed the order denying the Bank’s motion to dismiss in the Baxter action, and remanded for dismissal of the Baxter complaint. We granted certiorari to review that judgment, 464 U. S. 932 (1983), and we now reverse. I — \ > — I Claims of two types were adjudicated in the Cooper litigation. First, the individual claims of each of the four intervening plaintiffs have been finally decided in the Bank’s favor. Those individual decisions do not, of course, foreclose any other individual claims. Second, the class claim that the Bank followed “policies and practices” of discriminating against its employees has also been decided. It is that decision on which the Court of Appeals based its res judicata analysis. There is of course no dispute that under elementary principles of prior adjudication a judgment in a properly entertained class action is binding on class members in any subsequent litigation. See, e. g., Supreme Tribe of Ben-Hur v. Cauble, 255 U. S. B56 (1921); Restatement of Judgments § 86 (1942); Restatement (Second) of Judgments §41(l)(e) (1982); see also Fed. Rule Civ. Proc. 23(c)(3); see generally Moore & Cohn, Federal Class Actions — Jurisdiction and Effect of Judgment, 32 Ill. L. Rev. 555 (1938). Basic principles of res judicata (merger and bar or claim preclusion) and collateral estoppel (issue preclusion) apply. A judgment in favor of the plaintiff class extinguishes their claim, which merges into the judgment granting relief. A judgment in favor of the defendant extinguishes the claim, barring a subsequent action on that claim. A judgment in favor of either side is conclusive in a subsequent action between them on any issue actually litigated and determined, if its determination was essential to that judgment. Ill A plaintiff bringing a civil action for a violation of § 703(a) of Title VII of the Civil Rights Act of 1964, 78 Stat. 255, as amended, 42 U. S. C. §2000e-2(a), has the initial burden of establishing a prima facie case that his employer discriminated against him on account of his race, color, religion, sex, or national origin. A plaintiff meets this initial burden by offering evidence adequate to create an inference that he was denied an employment opportunity on the basis of a discriminatory criterion enumerated in Title VII. A plaintiff alleging one instance of discrimination establishes a prima facie case justifying an inference of individual racial discrimination by showing that he (1) belongs to a racial minority, (2) applied and was qualified for a vacant position the employer was attempting to fill, (3) was rejected for the position, and (4) after his rejection, the position remained open and the employer continued to seek applicants of the plaintiff’s qualifications. McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802 (1973). Once these facts are established, the employer must produce “evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason.” Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 254 (1981). At that point, the presumption of discrimination “drops from the case,” id., at 255, n. 10, and the district court is in a position to decide the ultimate question in such a suit: whether the particular employment decision at issue was made on the basis of race. United States Postal Service Board of Governors v. Aikens, 460 U. S. 711, 714-715 (1983); Texas Dept. of Community Affairs v. Burdine, 450 U. S., at 253. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff regarding the particular employment decision “remains at all times with the plaintiff,” ibid., and in the final analysis the trier of fact “must decide which party’s explanation of the employer’s motivation it believes.” United States Postal Service Board of Governors v. Aikens, 460 U. S., at 716. In Franks v. Bowman Transportation Co, 424 U. S. 747 (1976), the plaintiff, on behalf of himself and all others similarly situated, alleged that the employer had engaged in a pervasive pattern of racial discrimination in various company policies, including the hiring, transfer, and discharge of employees. In that class action we held that demonstrating the existence of a discriminatory pattern or practice established a presumption that the individual class members had been discriminated against on account of race. Id., at 772. Proving isolated or sporadic discriminatory acts by the employer is insufficient to establish a prima facie case of a pattern or practice of discrimination; rather it must be established by a preponderance of the evidence that “racial discrimination was the company’s standard operating procedure — the regular rather than the unusual practice.” Teamsters v. United States, 431 U. S. 324, 336 (1977) (footnote omitted). While a finding of a pattern or practice of discrimination itself justifies an award of prospective relief to the class, additional proceedings are ordinarily required to determine the scope of individual relief for the members of the class. Id., at 361. The crucial difference between an individual’s claim of discrimination and a class action alleging a general pattern or practice of discrimination is manifest. The inquiry regarding an individual’s claim is the reason for a particular employment decision, while “at the liability stage of a pattern- or-practice trial the focus often will not be on individual hiring decisions, but on a pattern of discriminatory deci-sionmaking.” Id., at 360, n. 46. See generally Furnco Construction Corp. v. Waters, 438 U. S. 567, 575, n. 7 (1978). This distinction was critical to our holding in General Telephone Co. of Southwest v. Falcon, 457 U. S. 147 (1982), that an individual employee’s claim that he was denied a promotion on racial grounds did not necessarily make him an adequate representative of a class composed of persons who had allegedly been refused employment for discriminatory reasons. We explained: “Conceptually, there is a wide gap between (a) an individual’s claim that he has been denied a promotion on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual’s claim and the class claims will share common questions of law or fact and that the individual’s claim will be typical of the class claims. For respondent to bridge that gap, he must prove much more than the validity of his own claim. Even though evidence that he was passed over for promotion when several less deserving whites were advanced may support the conclusion that respondent was denied the promotion because of his national origin, such evidence would not necessarily justify the additional inferences (1) that this discriminatory treatment is typical of petitioner’s promotion practices, (2) that petitioner’s promotion practices are motivated by a policy of ethnic discrimination that pervades petitioner’s Irving division, or (3) that this policy of ethnic discrimination is reflected in petitioner’s other employment practices, such as hiring, in the same way it is manifested in the promotion practices.” Id., at 157-158. After analyzing the particulars of the plaintiff’s claim in that case, we pointed out that if “one allegation of specific discriminatory treatment were sufficient to support an across-the-board attack, every Title VII case would be a potential companywide class action.” Id., at 159. We further observed: “In this regard it is noteworthy that Title VII prohibits discriminatory employment practices, not an abstract policy of discrimination. The mere fact that an aggrieved private plaintiff is a member of an identifiable class of persons of the same race or national origin is insufficient to establish his standing to litigate on their behalf all possible claims of discrimination against a common employer.” Id., at 159, n. 15. Falcon thus holds that the existence of a valid individual claim does not necessarily warrant the conclusion that the individual plaintiff may successfully maintain a class action. It is equally clear that a class plaintiff’s attempt to prove the existence of a companywide policy, or even a consistent practice within a given department, may fail even though discrimination against one or two individuals has been proved. The facts of this case illustrate the point. The District Court found that two of the intervening plaintiffs, Cooper and Russell, had both established that they were the victims of racial discrimination but, as the Court of Appeals noted, they were employed in grades higher than grade 5 and therefore their testimony provided no support for the conclusion that there was a practice of discrimination in grades 4 and 5. Given the burden of establishing a prima facie case of a pattern or practice of discrimination, it was entirely consistent for the District Court simultaneously to conclude that Cooper and Russell had valid individual claims even though it had expressly found no proof of any classwide discrimination above grade 5. It could not be more plain that the rejection of a claim of classwide discrimination does not warrant the conclusion that no member of the class could have a valid individual claim. “A racially balanced work force cannot immunize an employer from liability for specific acts of discrimination.” Furnco Construction Corp. v. Waters, 438 U. S., at 579. The analysis of the merits of the Cooper litigation by the Court of Appeals is entirely consistent with this conclusion. In essence, the Court of Appeals held that the statistical evidence, buttressed by expert testimony and anecdotal evidence by three individual employees in grades 4 and 5, was not sufficient to support the finding of a pattern of bankwide discrimination within those grades. It is true that the Court of Appeals was unpersuaded by the anecdotal evidence; it is equally clear, however, that it did not regard two or three instances of discrimination as sufficient to establish a general policy. It quite properly recognized that a “court must be wary of a claim that the true color of a forest is better revealed by reptiles hidden in the weeds than by the foliage of countless freestanding trees.” NAACP v. Claiborne Hardware Co., 458 U. S. 886, 934 (1982). Conversely, a piece of fruit may well be bruised without being rotten to the core. The Court of Appeals was correct in generally concluding that the Baxter petitioners, as members of the class represented by the intervening plaintiffs in the Cooper litigation, are bound by the adverse judgment in that ease. The court erred, however, in the preclusive effect it attached to that prior adjudication. That judgment (1) bars the class members from bringing another class action against the Bank alleging a pattern or practice of discrimination for the relevant time period and (2) precludes the class members in any other litigation with the Bank from relitigating the question whether the Bank engaged in a pattern and practice of discrimination against black employees during the relevant time period. The judgment is not, however, dispositive of the individual claims the Baxter petitioners have alleged in their separate action. Assuming they establish a prima facie case of discrimination under McDonnell Douglas, the Bank will be required to articulate a legitimate reason for each of the challenged decisions, and if it meets that burden, the ultimate questions regarding motivation in their individual cases will be resolved by the District Court. Moreover, the prior adjudication may well prove beneficial to the Bank in the Baxter action: the determination in the Cooper action that the Bank had not engaged in a general pattern or practice of discrimination would be relevant on the issue of pretext. See McDonnell Douglas, 411 U. S., at 804-805. The Bank argues that permitting the Baxter petitioners to bring separate actions would frustrate the purposes of Rule 23. We think the converse is true. The class-action device was intended to establish a procedure for the adjudication of common questions of law or fact. If the Bank’s theory were adopted, it would be tantamount to requiring that every member of the class be permitted to intervene to litigate the merits of his individual claim. It is also suggested that the District Court had a duty to decide the merits of the individual claims of class members, at least insofar as the individual claimants became witnesses in the joint proceeding and subjected their individual employment histories to scrutiny at trial. Unless these claims are decided in the main proceeding, the Bank argues that the duplicative litigation that Rule 23 was designed to avoid will be encouraged, and that defendants will be subjected to the risks of liability without the offsetting benefit of a favorable termination of exposure through a final judgment. This argument fails to differentiate between what the District Court might have done and what it actually did. The District Court did actually adjudicate the individual claims of Cooper and the other intervening plaintiffs, as well as the class claims, but it pointedly refused to decide the individual claims of the Baxter petitioners. Whether the issues framed by the named parties before the court should be expanded to encompass the individual claims of additional class members is a matter of judicial administration that should be decided in the first instance by the District Court. Nothing in Rule 23 requires as a matter of law that the District Court make a finding with respect to each and every matter on which there is testimony in the class action. Indeed, Rule 23 is carefully drafted to provide a mechanism for the expeditious decision of common questions. Its purposes might well be defeated by an attempt to decide a host of individual claims before any common question relating to liability has been resolved adversely to the defendant. We do not find the District Court’s denial of the Baxter petitioners’ motion for leave to intervene in the Cooper litigation, or its decision not to make findings regarding the Baxter petitioners’ testimony in the Cooper litigation, to be inconsistent with Rule 23. 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 Marshall concurs in the judgment. Justice Powell took no part in the decision of this case. The Bank is organized pursuant to a federal statute, 12 U. S. C. § 341, that enables it to sue and be sued, to appoint its own employees, and to define their duties. Sylvia Cooper, Constance Russell, Helen Moore, and Elmore Hannah, Jr., sometimes referred to by the District Court as the “intervening plaintiffs” and by the parties as the “Cooper petitioners.” In our order granting certiorari, we declined to review two questions that were presented by these parties. 464 U. S. 932 (1983). App. to Pet. for Cert. 200a (brackets in original). Certification was also sought for a class of female employees, but the District Court concluded that the evidence did not warrant the certification of a class with respect to the claims of sex discrimination. Id., at 200a, n. 1. The actual text of the critical paragraphs of the notice read as follows: “3. The class of persons who are entitled to participate in this action as members of the class represented by the plaintiff-intervenors, for whom relief may be sought in this action by the plaintiff-intervenors and who will be bound by the determination in this action is defined to include: all black persons who were employed by the Federal Reserve Bank of Richmond at its Charlotte Branch Office at any time since January 3, 1974. “4. If you fit in the definition of the class in paragraph 3 you are a class member. As a class member, you are entitled to pursue in this action any claim of racial discrimination in employment that you may have against the defendant. You need to do nothing further at this time to remain a member of the class. However, if you so desire, you may exclude yourself from the class by notifying the Clerk, United States District Court, as provided in paragraph 6 below. “5. If you decide to remain in this action, you should be advised that: the court will include you in the class in this action unless you request to be excluded from the class in writing; the judgment in this case, whether favorable or unfavorable to the plaintiff and the plaintiff-intervenors, will include all members of the class; all class members will be bound by the judgment or other determination of this action; and if you do not request exclusion, you may appear at the hearings and trial of this action through the attorney of your choice. “6. If you desire to exclude yourself from this action, you will not be bound by any judgment or other determination in this action and you will not be able to depend on this action to toll any statutes of limitations on any individual claims you may have against the defendant. You may exclude yourself from this action by notifying the Clerk in -writing that you do not desire to participate in this action. The Clerk’s address is: Clerk, United States District Court, Post Office Box 1266, Charlotte, North Carolina 28232.” App. 35a-37a. In addition to Baxter, they were Brenda Gilliam, Glenda Knott, Emma Ruffin, Alfred Harrison, and Sherri MeCorkle. All of these individuals, sometimes referred to as the “Baxter petitioners,” stipulated that they received the notice. See id., at 95a. As noted, n. 2, swpra, our limited grant of certiorari does not encompass the questions raised by the Cooper petitioners concerning the Court of Appeals’ disposition of the merits of their case. Two of those claims were rejected by the District Court and two by the Court of Appeals: all four of those determinations are now equally final. The District Court rejected all of the class claims except that pertaining to grades 4 and 5; the claim on behalf of that subclass was rejected by the Court of Appeals. Again, that distinction between subclasses is no longer significant for the entire class claim has now been decided. Although Teamsters involved an action litigated on the merits by the Government as plaintiff under § 707(a) of the Act, it is plain that the elements of a prima facie pattern-or-practice case are the same in a private class action. See Teamsters v. United States, 431 U. S., at 358-360. The Court of Appeals wrote: “In denying the motion the District Court stated that all intervenors ‘in grades higher than grade 5’ were not members of the class in whose favor the District Court had found ‘classwide discrimination.’ By this test, Cooper, Moore, Russell, Baxter, Gilliam, Knott and McCorkle were not members of the class in which discrimination was found and their testimony could not have been included within the District Court’s term ‘oral testimony of class members,’ complaining of promotion out of either pay grade 4 or pay grade 5; only the testimony of Ruffin and Harrison met that qualifying standard.” EEOC v. Federal Reserve Bank of Richmond, 698 F. 2d 633, 644 (1983). It wrote: “The claim here is a pattern or practice of intentional discrimination against an entire group by treating it less favorably because of race. That is the typical disparate treatment case. This case should accordingly be properly treated as such. However, the result reached by us would not be substantially different whether the class action be considered as a disparate impact or a disparate treatment case.” Id., at 639. “This case accordingly presents quite a contrast with Teamsters where the ‘oral testimony of class members’ demonstrated 40 cases of specific instances of discrimination in support of the statistical evidence offered by plaintiffs or with that in our own case of Chisholm v. United States Postal Service, 665 F. 2d 482, 495 (4th Cir. 1981), where there were 20 ‘class members’ testifying of individual discrimination. Here all we have is the testimony of but two class members testifying of individual discrimination in promotion out of either pay grade 4 or pay grade 5 on which a finding of discriminatory practices can be rested. This is even less of a presentation of oral testimony in support of a pattern of discrimination than that found wanting in Ste. Marie v. Eastern R. Ass’n., 650 F. 2d 395, 405-06 (2d Cir. 1981), where the Court declared that the small number of incidents of discrimination in promotion over a period of years in that case ‘would be insufficient to support the inference of a routine or regular practice of discrimination . . . ,’ or, in Goff v. Continental Oil Co., 678 F. 2d 593, 597 (5th Cir. 1982), where the Court held that ‘even if all three witnesses’ accounts of racial discrimination were true, this evidence would not have been enough to prove a pattern or practice of company-wide discrimination by Conoco.’ It follows that these two incidents of failure to promote Ruffin or Harrison, even if regarded as discriminatory, (which we assume only arguendo), would not support the District Court’s finding of a pattern of class discrimination in promotions out of grades 4 and 5.” Id., at 643-644 (footnotes omitted). We find the Bank’s contention that the District Court actually found against the Baxter petitioners on the basis of the testimony in the Cooper action wholly without merit. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Clark delivered the opinion of the Court. This case presents, for the first time in this Court, issues relating to the availability of certain defenses to a prima facie violation of § 2 (e) of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526. The Federal Trade Commission has found that Simplicity Pattern Co., Inc., one of the Nation’s largest dress pattern manufacturers, discriminated in favor of its larger customers by furnishing to them services and facilities not accorded to competing. smaller customers on proportionally equal terms. The Commission held that neither the presence of “cost justification” nor the absence of competitive injury may constitute a defense to a § 2 (e) violation. The Court of Appeals found that competition existed between the larger and smaller customers of Simplicity and, with one judge dissenting, held that an absence of competitive injury would not constitute a “justification” rebutting a prima facie showing of a § 2 (e) violation. Through a different majority, however, it remanded the case on the “cost justification” defense under § 2 (b), holding that Simplicity might rebut the prima facie case by showing that the discriminations in services and facilities were justified by differences in Simplicity’s costs in dealing with the two classes of customers. 103 U. S. App. D. C. 373, 258 F. 2d 673. The Commission, in No. 406, and Simplicity, in No. 447, filed cross-petitions for certiorari which we consider together. We granted both petitions because of the fundamental significance of these issues .in the application of an important Act of Congress. 358 U. S. 897. We have concluded that, given competition between the two classes of customers, neither absence of competitive injury nor the presence of “cost justification” defeats enforcement of the provisions of § 2 (e) of the Act. The action of the Commission in issuing the cease-and-desist order is, therefore,' affirmed. Simplicity manufactures and sells tissue patterns which are used in the home for making women’s and children’s wearing apparel. Its volume of pattern sales, in terms of sales units, is greater than that resulting from the combined effort of all other major producers. The patterns are sold to some 12,300 retailers, with 17,200 outlets. For present purposes, these customers can be divided roughly into two categories. One, consisting largely of department and variety stores, comprises only 18% of the total number of customers, but accounts for 70% of the total sales volume. The remaining 82% of the customers are small stores whose primary business is the sale of yard-good fabrics. About 600 different patterns are made available to Simplicity’s customers. New patterns are added at the rate of 40 per month, while three times annually the obsolete designs are discontinued so as to maintain the number of designs at a relatively constant level.. The different designs are displayed in a catalogue which is changed monthly in order to reflect the changes in available designs. The patterns themselves are stored and displayed in steel cabinets. The catalogues and storage cabinets are both furnished by Simplicity. The variety stores handle and sell a multitude of relatively low-priced articles. Each article, including dress patterns, is sold for the purpose of returning a profit and would be dropped if it failed to do so. The fabric stores, on the other hand, are primarily interested in selling yard goods; they handle patterns at no profit or even at a loss as an accommodation to their fabric customers and for the purpose of stimulating fabric sales. These differences in motive are reflected in the manner in which each type of store handles its patterns. The variety stores devote the minimum amount of display space consistent with adequate merchandising — consisting usually of nothing more than a place on the counter for the catalogues, with the patterns themselves stored underneath the counter in the steel cabinets furnished by Simplicity. In contrast, the fabric stores usually provide tables and chairs where the customers may peruse the catalogues in comfort and at their leisure. The retail prices of Simplicity patterns are uniform at 250, 350, or 500. Similarly, Simplicity charges a uniform price, to all its customers, of 60% of the retail price. However, in the furnishing of certain services and facilities Simplicity does not follow this uniformity. It furnishes patterns to the variety stores on- a consignment basis, requiring payment only as and when patterns are sold — thus affording them an investment-free inventory. The fabric stores are required to pay cash for their patterns in regular course. In addition, the cabinets and the catalogues are furnished to variety stores free while the fabric stores are charged therefor, the catalogues averaging from $2 to $3 each. Finally, all transportation costs in connection with, its business with variety stores are paid by Simplicity but none is paid on fabric-store transactions. The free services and facilities thus furnished variety store chains are substantial in value. As to four variety store chains, the catalogues which Simplicity furnished free in 1954 were valued at $128,904; the cabinets furnished free which those stores had on hand at the end of 1954 were valued at over $500,000; and their inventory of Simplicity’s patterns at the end of 1954 was valued, at more than $1,775,000, each of these values being based tin Simplicity’s usual sales price. . Simplicity’s president testified that it would cost over $2,000,000 annually to give its other customers the free transportation, free, catalogues, and free cabinets furnished to variety stores. Simplicity does not dispute these findings. Assuming that the existence of competition between purchasers is a necessary element in a § 2 (e) prosecution, it insists that no real competition in patterns exists between the variety and the fabric stores. It also contends that even if competition is present its conduct may be justified by a showing that no competitive injury resulted or, alternatively, that the discriminations are not unlawful if it could be shown that the differential treatment was only reflec.tive of the differences in its costs in dealing with the two types of customers. 1. Existence <Df Competition. The unanimous conclusion of the Examiner, the Commission, and the Court of Appeals on this point was, as stated by the Court of. Appeals, that the variety and fabric stores, “operating in the same cities and in the same shopping area, often side by side, were competitors, purchasing from Simplicity at the same price and then at like prices retailing the identical product to substantially the same segment of the public.” 103 U. S. App. D. C., at 377, 258 F. 2d, at 677. Simplicity argues that “motivation” controls and that since the variety store sells for a profit and the fabric store for accommodation that the competition is minuscule. But the existence of competition does not depend on such motives. Regardless of the necessity the fabric stores find in the handling of patterns it does not remove their incentive to sell those on hand, especially when cash is tied up in keeping patterns on the shelves. The discriminatory terms under which they are obliged to handle them increase their losses. Furthermore, Simplicity not only takes advantage of the captive nature of the fabric stores in not granting them these advantages but compounds the damage by creating a sales outlet in the variety-stores through the granting of these substantial incentives to engage in the pattern business. Without such partial subsidization the variety stores might not. enter into the pattern trade at all. Nor does it follow that the failure here to show specific injury to competition in patterns is inconsistent with a finding that competition in fact exists. It may be, as Simplicity argues, that the sale of patterns is minuscule in the over-all business of a variety store, but the same is true of thousands of other items. While the giving of discriminatory concessions to a variety store on any one isolated item might cause no injury to competition with a-fabric store in its over-all operation, that fact does not render nonexistent the actual competition between them in patterns. It remains, and, because' of the discriminatory concessions, causes further losses to the fabric store. As this Court said in Federal Trade Comm’n v. Morton Salt Co., 334 U. S. 37, 49 (1948), “There are many articles in a grocery store that, considered separately, are comparatively small parts of a merchant’s stock. Congress intended to protect a merchant from competitive injury attributable to discriminatory prices on any or all goods sold in interstate commerce, whether the particular goods constitúted a major or minor portion of his stock. Since a grocery store consists of many comparatively small articles, there is no possible way effectively to protect a grocer .from discriminatory prices except by applying the prohibitions Qf the Act to each individual article in the store.” 2.' Application of the Justification Defenses of § 2 (b). Simplicity contends that an absence of competitive injury constitutes a defense under the justification provisions of § 2 (b) and further that it should have been permitted, under that subsection, to dispel its discrimination in services and facilities by a showing of lower costs in its transactions with the variety stores. We agree with the Commission that the language of the Act, when considered in its entirety, will not support this construction. Section 2 (á) makes unlawful price discriminations “where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevént competition This price discrimination provision is hedged with qualifications. An exception is made for price differentials “which make only due allowance for differences in the cost of manufacture, sale, or delivery.” Care was taken that price changes are not outlawed. where made in response to changing market conditions. Finally, § 2 (a) codifies the rule of United States v. Colgate & Co., 250 U. S. 300 (1919), protecting the right of a persQn in commerce to select his “own customers in bopa fide transactions and not in restraint of trade.” Subsections (c), (d), and (e), on the other hand, unqualifiedly make unlawful certain business practices other than price discriminations. Subsection (c) applies to the payment or receipt of commissions or brokerage allowances “except for services rendered.” Subsection (d) prohibits the payment by a seller to a customer for any services or facilities furnished by the latter, unless “such payment ... is available on proportionally equal terms to all other [competing] customers.” Subsection (e), which as noted is the provision applicable in this case, makes it unlawful for a seller “to discriminate in favor of one purchaser against another purchaser or purchasers of a commodity bought for resale . . .• by . . . furnishing . . . any services or facilities connected with the processing, handling, sale, or offering for sale of such commodity so purchased upon terms not accorded to all purchasers on proportionally equal terms.” In terms, the proscriptions of these three subsections are absolute. Unlike § 2 (a), none of them requires, as proof of a prima facie violation, a showing that the illicit practice has had an injurious or destructive effect on com-' petition. Similarly, none has any built-in defensive matter, as does § 2 (a). Simplicity’s contentions boil down to an argument that the exculpatory provisions which Congress has made expressly applicable only to price discriminations are somehow included as “justifications” for discriminations in services or facilities by § 2 (b), which provides that “Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in price or services or facilities furnished, the.burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section, and unless justification shall be affirmatively shown, the Commission is authorized to issue an order terminating the discrimination: Provided, however, That nothing herein contained shall prevent a seller rebutting the prima-facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor.” (Emphasis added.) We hold that the key word “justification” can be read no more broadly than to allow rebuttal of the respective offenses in one of the ways expressly made available by Congress. Thus; a discrimination in prices may be rebutted-by a showing under any of the § 2 (a) provisos, or under the § 2 (b) proviso — all of.which by their terms apply to price discriminations. On the other hand, the only escape Congress has provided for discriminations in services or. facilities is the permission to meet competition as found in the § 2 (b) proviso. We cannot supply what Congress has studiously omitted. Simplicity’s arguments to the contrary are based essentially on the ground that it would be “bad law and bad economics” to make discriminations' unlawful even where they may be accounted for by cost differentials or where there is no competitive injury. Entirely aside from the fact that this Court is not in a position to review the economic wisdom of Congress, we cannot say that the legislative decision to treat price and other discriminations differently is without a rational basis. In allowing a “cost justification” for price discriminations and not for others, Congress could very well have felt .that sellers would be forced to confine their discriminatory practices to price differentials, where they could be more readily detected and where it would be much easier to make accurate comparisons with any alleged cost savings. Biddle Purchasing Co. v. Federal Trade Comm’n, 96 F. 2d 687, 692 (C. A. 2d Cir. 1938). And, with respect to the absence of competitive injury requirements, it suffices to say that the antitrust laws are not strangers to the policy of nipping potentially destructive practices before they reach full bloom. Cf. Klor’s, Inc., v. Broadway-Hale Stores, 359 U. S. 207 (1959). Our conclusions are further confirmed by the historical setting of the Robinson-Patman amendments to § 2 of the Clayton Act. As originally worded in 1914 (38 Stat. 730), § 2 applied only to price discriminations, and then only where the effect of such discrimination was “to substantially lessen competition or tend to create a monopoly in. any line of commerce.” Furthermore, a proviso excepted price discriminations based on “differences in the . . . quantity of the commodity sold,” regardless of whether the differences in quantity resulted in corresponding cost differentials. A lengthy investigation conducted in the 1930’s by the Federal Trade Commission disclosed that several large chain buyers were effectively avoiding § 2 by taking advantage of gaps in its coverage. Because of their'enormous purchasing power, these chains were able to exact price concessions, based on differences in quantity, which far exceeded any related cost savings to the seller. Consequently, the seller was forced to raise prices even further on smaller quantity lots in order to cover the concessions made to the large purchasers. Comparable competitive advantages were obtained by the large purchasers in several ways other than direct price concessions. Rebates were induced for “brokerage fees,” even though no brokerage services had been performed. “Advertising allowances” were paid by the sellers tó the large buyers in return for certain promotional services undertaken by the latter. Some sellers furnished special services or facilities to the chain buyers. Lacking the purchasing power to demand comparable advantages; the small independent stores were at a hbpeless competitive disadvantage. The Robinson-Patman amendments were enacted to eliminate these inequities. The exception to price discriminations based on quantitative differences was limited to those making “only due allowance for differences in . . . cost.” As noted above, false brokerage- allow-_ anees and the paying for or furnishing of nonproportional services or facilities were banned outright. The. portion of § 2 (b) preceding the proviso, on which Simplicity relies, was inserted in the House bill for the sole purpose of laying down “directions with reference to procedure including a statement with respect to burden of proof.” It was clearly not intended. to have any independent substantive weight of its own. We hold, therefore, that neither “cost-justification” nor an absence of competitive injury may constitute “justification” of a prima facie § 2 (e) violation. The judgment of the Court of Appeals must accordingly he reversed insofar as it set aside and remanded the Commission’s order and affirmed as to the remainder. It is so ordered. The complaint was in two counts, the first being under the Federal Trade Commission .Act. This count was dismissed. The second count, which is the only one before us, involves certain subsections of § 2 of the Clayton Act, 15 U. S. C. § 13. For ready reference we quote § 2 in its entirety: “(a) That it shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition Or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: Provided, That nothing herein contained shall prevent differentials which make only due allowance for differences in'the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered: Provided, however, That the Federal Trade Commission may, after due investigation, and hearing to all interested parties, fix and establish quantity limits, and revise the same as it finds necessary, as to particular commodities or classes of commodities,, where it finds that available purchasers in greater quantities are so few as to render differentials on account thereof- unjustly discriminatory or promotive of monopoly in any line of commerce;, and -the foregoing shall then not be construed to-permit differentials- based on differences in quantities greater than those so fixe.d and established: And provided further, That nothing-herein contained shall prevent persons .engaged in selling goods, wares, or merchandise in commerce From - selecting their own customers inbona fide, transactions and not in .restraint of trade; And provided further, That nothing herein contained shall prevent price changes from time to time where in response to changing conditions affecting the market for or the marketability of the goods concerned, such as but not limited to actual or imminent deterioration of perishable goods; obsolescence of seasonal goods, distress sales under court process, or sales in good faith in discontinuance of business in the goods concerned. “ (b) Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in price or services or facilities furnished, the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section, and unless justification shall be affirmatively shown, the Commission is authorized to issue an order terminating the discrimination: Provided, however, That nothing herein contained shall prevent a seller rebutting the prima-facie case thus made by showing that his lower-price or the furnishing of services or facilities to any purchaser o-r purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor. “(c) That it shall be unlawful for any person engaged in commerce, in the course of such commerce, to pay or grant, or to receive or accept, anything' of value as a commission, brokerage, or other compensation, or any allowance or discount in lieu thereof, except for services rendered in connection with the sale or purchase of goods, wares, or merchandise, either to the other party to such transaction or to an agent, representative, or other intermediary therein where such intermediary is acting in fact for or in behalf, or is subject to the direct or indirect control, of any party tu such transaction other than the person by whom such compensation is so granted or paid. “(d) That it shall be unlawful for any person engaged in commerce to pay or contract for the payment of anything of value to or for the benefit of a customer of such person in the course of such com-' merce as compensation or in consideration for any services or facilities furnished by or through such customer in connection with the processing, handling, sale, or offering, for sale of any products or commodities manufactured, sold, or offered for sale by such person, •unless such, payment or consideration, is available on proportionally equal terms to all other customers competing in the distribution of such products or commodities. “(e) That it shall be unlawful for any person to discriminate in favor of one purchaser against another purchaser or purchasers of a commodity bought for resale, with or without processing, by contracting to furnish or furnishing, or by contributing to thé furnishing of, any services- or facilities connected with the processing, handling, sale, or offering for sale of such commodity so purchased upon terms not accorded to all purchasers on proportionally equal terms. “(f) That it shall be unlawful for any person engaged in commerce, in the course of such commerce, knowingly to induce or receive a discrimination in price which is prohibited by this section.” Judge Washington dissented on the “cost-justification” issue, while Judge Burger was in dissent on the competitive injury question. In dollar volume, Simplicity’s percentage-of-industry total is somewhat lower, due to the fact that its prices are among the lowest in the industry. It should be noted that Simplicity has apparently acted entirely in good faith. While the services and facilities described in the body of the opinion are admittedly furnished free only to- the variety ■stores, Simplicity asserts that other services ánd facilities are furnished only to the smaller customers. These claimed services include: A staff of 12 young- ladies travels throughout the. country giving fashion shows and sewing demonstrations in schools,.-L-H Clubs and' the like. These demonstrations- are' coordinated through the local-fabric stores to assist the latter in pushing sales both of patterns and of fabric's. Large promotional posters, portraying fabrics and fashion trends, are furnished monthly to the fabric stores. “Flyers,” or brochures, designed, printed and distributed by Simplicity solely for the small merchant, tell him (in the words of Simplicity’s president) “what the proper sources of supply, are in'New York, what the trends are, how to trim his wiiidows, how to run certain aspects of his department and a great deal of other material.” A monthly publication called the “Simplicity Pattern Book” is sold through fabric stores at an annual loss to Simplicity of over $100,000. The publication is designed to “glamorize and dramatize for the consumer and for the merchant the textiles and trends throughout the country.” These services and facilities are apparently available to the variety stores, but are not used by them because of their method of doing business. Thus, Simplicity claims that the fabric stores receive services and facilities, valued by Simplicity at more than $1,000,000 annually, which in fact if not in law are not used by the - variety stores. The parties did not explore, before the • Commission, the possibility that this tailoring of services and facilities to meet the different needs of two classes of customers in fact constituted “proportionally equal terms.” And, of course, this point was not raised in the Court of Appeals or in this Court. We note in passing, however, that the Commission has indicated a willingness to give a relatively broad scope to the-standard of proportional equality under §§ 2 (d) and 2 (e). See Lever Brothers Co., 50 F. T. C. 494, 512 (1953). (“[§ 2 (d)] does not prohibit a seller from paying for services of various types.” A “plan providing payment for promotional services and facilities . . . must be honest in its purpose and fair and reasonable in its application.”) See also Procter & Gamble Distributing Co., 50 F. T. C. 513 (1953); Colgate-Palmolive-Peet Co., 50 F. T. C. 525 (1953); Report of the Attorney General’s National Committee to Study the Antitrust Laws 189-190 (1955). Since the issue is not properly before us, we of course do not pass on it. Simplicity -argues that the Examiner “affirmatively found an absence of competitive injury.” This view was apparently adopted by the Court of Appeals. 103 U. S. App. D. C., at 378, 258 F. 2d, at 678. We do not so read the record, however. What the Examiner said was that “there is no showing of competitive injury.” (Emphasis added.) Subsection (f) is a corollary to §2 (a), making it unlawful “knowingly to induce or receive” a price discrimination barred by the latter. See Automatic Canteen Co. v. Federal Trade Comm’n, 346 U. S. 61 (1953). Simplicity .concedes this, in effect, but argues that it should be allowed under §2 (b) to “justify” the §2 (e) violation by making an affirmative showing of absence of competitive injury. In allowing a showing of “cost-justification” under §2 (b), the Court of Appeals negated any inference that it was thereby importing “§ 2 (a) criteria as matters of defense to a Section 2 (e) charge.” Rather, it held that “the justification to be shown under the first clause of § 2 (b) as to a § 2 (e) charge of discrimination in ‘facilities furnished’ to various customers, [would] depend upon the facts in a particular case.” 103 U. S. App. D. C., at 381, 258 F. 2d, at 681. (Italics in the original.) On this theory, the limits of the justification-which could be shown would be established by litigation, on a case-to-case basis. See Standard Oil Co. v. Federal Trade Comm’n, 340 U. S. 231 (1951). The Courts of Appeals, prior to this case, had uniformly rejected the argument that § 2 (e) violations were subject to a cost-justification defense or required a showing of adverse effect on competition. Elizabeth Arden, Inc., v. Federal Trade Comm’n, 156 F. 2d 132 (C. A. 2d Cir. 1946) (competitive injury); Corn Products Refining Co. v. Federal Trade Comm’n, 144 F. 2d 211, 219 (C. A. 7th Cir. 1944), aff’d on other grounds 324 U. S. 726 (competitive injury); Southgate Brokerage Co. v. Federal Trade Comm’n, 150 F. 2d 607, 610 (C. A. 4th Cir. 1945) (dictum as to competitive injury); Great Atlantic & Pacific Tea Co. v. Federal Trade Comm’n, 106 F. 2d 667 (C. A. 3d Cir. 1939) (dictum as to cost-justification); Oliver Bros., Inc., v. Federal Trade Comm’n, 102 F. 2d 763, 767 (C. A. 4th Cir. 1939) (dictum as to competitive injury). It does not appear that any Court of Appeals had previously been asked to decide whether an absence of competitive injury could constitute a “justification” under § 2 (b). Compare the Report of the Attorney General’s National Committee to Study the Antitrust Laws (1955). The Committee recognized that as of that date subsections (c), (d) and (e) had been uniformly interpreted ’ as not requiring a showing of competitive injury, and as not allowing a cost-justification defense. Pp. 187-193. It expressed disagreement with the desirability of-this result, in view of what it deemed the “broader antitrust objectives,” and recommended that § 2 (c) be changed by legislation and § 2 (d) and (e) by “interpretive reform.”. P. 193. During congressional debates on the bill, there were continual references to the subsection (c), (d) and (e) practices as “secret” discriminations. See, e. g., 80 Cong. Rec. 8126, 8127, 8132, 8135, 8137, 8226. Compare Northern Pacific R. Co. v. United States, 356 U. S. 1 (1958); United States v. Socony-Vacuum Oil Co., 310 U. S. 150 (1940), which contain examples of per se violations under the Sherman Act. It is not without significance that earlier versions of both the House and Senate bills would have outlawed even price discriminations without regard to their effect upon competition. H. R. 8442, 74th Cong., 1st Sess.; S. 3154, 74th Cong., 1st Sess. This language was retained in § 2 (a) under the Robinson-Patman Act amendment, and .the following was added, “or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them.” Final Report on the Chain-Store Investigation, S. Doc. No. 4, 74th Cong., 1st Sess. H. R. Rep. No. 2287, 74th Cong., 2d Sess., p. 16. As reported out of Committee, the equivalent of § 2 (b) (which was § 2 (e) in the House bill) applied only to price discriminations. During the floor debate, Congressman McLaughlin introduced an amendment which would add “or services or facilities furnished” at appropriate places in the subsection. He said, “Mr. Chairman, this is a committee' amendment agreed to unanimously by : the committee.- ... It simply allows a..seller to meet not only competition in price of other competitors\but also competition in services and facilities furnished.” 80 Cong. Rec. 8225. The amendment was adopted without further comineiit. Throughout the debate, what reference there, was to this subsection (other than to .the proviso) was to the effect that it was a “procedural” or “burden of proof” provision. See, e. g., 80 Cong. Rec. 8110, 9414, 9418. Congressman Patman, referring to it as a “burden of proof” provision, said “Let me analyze that for you. What does that mean? It means exactly the rule.of law today. It is a restatement of existing law. So far as I am concerned you can strike it out.- It makes no difference.” 80 Cong. Rec. 8231. This statement, coming from one of the authors of the bill; makes it clear beyond peradventure that the provision in question was not intended to operate as .a source of substantive defenses. See also Automatic Canteen Co. v. Federal Trade Comm’n, supra, 346 U. S., at 78. The history of the Senate bill is not helpful. As reported out of .Committee,-it contained neither a provision comparable to § 2 (b) nor one comparable to § 2 (e). S. Rep. No. 1502, 74th Cong., 2d Sess. A provision identical to § 2 (b) was adopted as a floor amendment at a time when the bill did not in terms even- cover the furnishing of services and facilities. 80 Cong. Rec. 6435-6436. The short debate on the amendment is not enlightening. While both of these questions have been presented to us in terms of the “justification” clause of §2(b), we are equally convinced that the competitive injury and cost-differential clauses of § 2 (a) cannot be read directly, into § 2 (e). Elizabeth Arden, Inc., v. Federal Trade Comm’n, supra, note 10; Corn Products Refining Co. v. Federal Trade Comm’n, supra, note 10; Great Atlantic & Pacific Tea Co. v. Federal Trade Comm’n, supra, note 10. It is true that, in reference to the cost-differential clause, we have said, “Time and again there was recognition in Congress of a-freedom to adopt and pass on to buyers the benefits of more economical processes.” Automatic Canteen Co. v. Federal Trade Comm’n, supra, 346 U. S., at 72. But the contexts of the statements referred to show that- the benefits Were to. be made available in price differentials or not at all. See, e. g., 80 Cong. Rec. 8106-8107, 8111-8112, 8114, 8127-8128, 8137, 9415; H. R. Rep. No. 2287, 74th Cong., 2d Sess. See also notes 12 and 13, supra. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Black delivered the opinion of the Court. The Fifth Amendment to the Constitution provides that a person shall not “be twice put in jeopardy of life or limb” for the same offense. The petitioner, now in prison under a court-martial conviction for a serious offense, contends he is entitled to his freedom because another court-martial had previously put him in jeopardy for the same offense. The first court-martial was dissolved by the convening authority before the court reached a decision. The Government contends that the Fifth Amendment’s double-jeopardy provision, if applicable to military courts, did not bar the second court-martial conviction here because, as the Government views the record, dissolution of the first court-martial was dictated by a pressing military tactical situation. The circumstances from which these contentions arise are as follows. March 13, 1945, American troops of the 76th Infantry Division entered Krov, Germany. The next afternoon two German women were raped by two men in American uniforms. Several days later petitioner and another American soldier were arrested upon charges that they committed these offenses. Two weeks later, March 27, the troops had advanced about 22 miles farther into Germany to a place called Pfalzfeld. On that date at Pfalzfeld petitioner and the other soldier were put on trial- before a general court-martial convened by order of the Commanding General of the 76th Infantry Division to which Division the two soldiers were attached. After hearing evidence and arguments of counsel, the court-martial closed to consider the case. Later that day the court-martial reopened and announced that the court would be continued until a later date to be fixed by the judge advocate. The reason for the continuance was the desire of the court-martial to hear other witnesses not then available before deciding the guilt or innocence of the accused. A week later the Commanding General of the 76th Division withdrew the charges from the court-martial directing it to take no further proceedings. The General then transmitted the charges to the Commanding General of the Third Army with recommendations for trial by a new court-martial. The reason for transferring the charges as explained in a communication to the Commanding General of the Third Army was: “The case was previously referred for trial by general court-martial and trial was commenced. Two witnesses, the mother and father of the victim of the alleged rape, were unable to be present due to sickness, and the Court continued the case so that their testimony could be obtained. Due to the tactical situation the distance to the residence of such witnesses has become so great that the case cannot be completed within a reasonable time.” The Commanding General of the Third Army concluded that the “tactical situation” of his command and its “considerable distance” from Krov made it impracticable for the Third Army to conduct the court-martial. Accordingly, he in turn transmitted the charges to the Fifteenth Army stating that this action was necessary to carry out the policy of the American Army in Europe to accelerate prompt trials “in the immediate vicinity of the alleged offenses.” Pursuant to this transmittal, the Fifteenth Army Commanding General convened a court-martial at a point about forty miles from Krov. Petitioner, represented by counsel, filed a plea in bar alleging that he had been put in jeopardy by the first court-martial proceedings and could not be tried again. His plea was overruled, the case was tried, and a conviction followed. He was sentenced to a dishonorable discharge, forfeiture of all pay and allowances, and life imprisonment, which imprisonment was later reduced to twenty years. After exhausting his right to military review, petitioner brought this habeas corpus proceeding in a federal district court. That court ordered his release, holding that his plea of former jeopardy should have been sustained. 72 F. Supp. 755. The Court of Appeals reversed, one judge dissenting. 169 F. 2d 973. We hold that under the circumstances shown, the Fifth Amendment’s double-jeopardy provision did not bar petitioner’s trial before the second court-martial. The interpretation and application of the Fifth Amendment’s double-jeopardy provision have been considered chiefly in civil rather than military court proceedings. Past cases have decided that a defendant, put to trial before a jury, may be subjected to the kind of "jeopardy” that bars a second trial for the same offense even though his trial is discontinued without a verdict. See Kepner v. United States, 195 U. S. 100, 128; cf. Palko v. Connecticut, 302 U. S. 319, 322-323. The same may be true where a judge trying a case without a jury fails for some reason to enter a judgment. McCarthy v. Zerbst, 85 F. 2d 640, 642. The double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed. There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict. In such event the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again. And there have been instances where a trial judge has discovered facts during a trial which indicated that one or more members of a jury might be biased against the Government or the defendant. It is settled that the duty of the judge in this event is to discharge the jury and direct a retrial. What has been said is enough to show that a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments. When justice requires that a particular trial be discontinued is a question that should be decided by persons conversant with factors relevant to the determination. The guiding rule of federal courts for determining when trials should be discontinued was outlined by this Court in United States v. Perez, 9 Wheat. 579. In that case the trial judge without consent of the defendant or the Government discharged the jury because its members were unable to agree. The defendant claimed that he could not be tried again and prayed for his discharge as a matter of right. In answering the claim this Court said at p. 580: “. . . We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office. . . .” The rule announced in the Perez case has been the basis for all later decisions of this Court on double jeopardy. It attempts to lay down no rigid formula. Under the rule a trial can be discontinued when particular circumstances manifest a necessity for so doing, and when failure to discontinue would defeat the ends of justice. We see no reason why the same broad test should not be applied in deciding whether court-martial action runs counter to the Fifth Amendment’s provision against double jeopardy. Measured by the Perez rule to which we adhere, petitioner’s second court-martial trial was not the kind of double jeopardy within the intent of the Fifth Amendment. There is no claim here that the court-martial went beyond its powers in temporarily continuing the trial to obtain the benefit of other witnesses. But the District Court viewed the record as showing that the only purpose of dissolving the court-martial was to get more witnesses. This purpose, the District Court held, was not the kind of “imperious” or “urgent necessity” that came within the recognized exception to the double-jeopardy provision. See Cornero v. United States, 48 F. 2d 69. We are urged to apply the Cornero interpretation of the “urgent necessity” rule here. We are asked to adopt the Cornero rule under which petitioner contends the absence of witnesses can never justify discontinuance of a trial. Such a rigid formula is inconsistent with the guiding principles of the Perez decision to which we adhere. Those principles command courts in considering whether a trial should be terminated without judgment to take “all circumstances into account” and thereby forbid the mechanical application of an abstract formula. The value of the Perez principles thus lies in their capacity for informed application under widely different circumstances without injury to defendants or to the public interest. Furthermore, this record is sufficient to show that the tactical situation brought about by a rapidly advancing army was responsible for withdrawal of the charges from the first court-martial. This appears in the first order of transmittal of the charges. That order was made by the Commanding General of the 76th Division who was responsible for convening the court-martial and who was also responsible for the most effective military employment of that Division in carrying out the plan for the invasion of Germany. There is no intimation in the record that the tactical situation did not require the transfer order. The court-martial was composed of officers of the invading Army Division. Momentous issues hung on the invasion and we cannot assume that these court-martial officers were not needed to perform their military functions. In the Perez case we said that the sound discretion of a presiding judge should be accepted as to the necessity of discontinuing a trial. This case presents extraordinary reasons why the judgment of the Commanding General should be accepted by the courts. At least in the absence of charges of bad faith on the part of the Commanding General, courts should not attempt to review his on-the-spot decision that the tactical situation required transfer of the charges. Affirmed. Mr. Justice Murphy, with whom Mr. Justice Douglas and Mr. Justice Rutledge agree, dissenting. I agree with the court below that in the military courts, as in the civil, jeopardy within the meaning of the Fifth Amendment attaches when the court begins the hearing of evidence. I agree also that a valid charge was pending before the first court-martial with which we are now concerned, and that the court had jurisdiction of the subject-matter and of the person of the petitioner. In the first court-martial evidence was introduced; in fact, both sides had completed the presentation of their cases and had submitted oral argument, and the court had closed to consider its decision. The court was later opened on its own motion, for the purpose of hearing the testimony of three named witnesses, who were expected to shed light on the question of identification. The Commanding General of the unit comprising petitioner and the court-martial that was trying him withdrew the charges and dissolved the court-martial, and transmitted the papers to the Commanding General of the Third Army, “with a recommendation of trial by general court-martial.” They were subsequently transferred to the Commanding General of the Fifteenth Army, who referred the case for trial by general court-martial. Petitioner was tried and convicted, after the court-martial had overruled a plea of former jeopardy based on the prior proceeding. The Commanding General, Fifteenth Army, on the recommendation of his Staff Judge Advocate, approved the finding of guilty and reduced the period of confinement from life to twenty years. The case was assigned for review to Board of Review No. 4, consisting of three Judge Advocates in the Branch Office of the Judge Advocate General with the European Theater. This Board, sitting in Paris, close to the scene of military operations, filed a unanimous opinion to the effect that the plea in bar should have been sustained and that consequently the record of trial was legally insufficient to support the findings and sentence. The Assistant Judge Advocate General filed a dissenting opinion, and the sentence was confirmed by the Commanding General, European Theater. In the habeas corpus proceedings in the United States, the District Court agreed with the Board of Review that the plea of double jeopardy should have been sustained. The Court of Appeals reversed, one judge dissenting. There is no doubt that Wade was placed in jeopardy by his first trial. This Court now holds that the decision of his Commanding Officer, assessing the tactical military situation, is sufficient to deprive him of his right under the Constitution to be free from being twice subjected to trial for the same offense. With this reading of the Constitution I cannot agree. The harassment to the defendant from being repeatedly tried is not less because the army is advancing. The guarantee of the Constitution against double jeopardy is not to be eroded away by a tide of plausible-appearing exceptions. The command of the Fifth Amendment does not allow temporizing with the basic rights it declares. Adaptations of military justice to the exigencies of tactical situations is the prerogative of the commander in the field, but the price of such expediency is compliance with the Constitution. I would reverse the judgment below. The charges were under the 92d Article of War, 10 U. S. C. § 1564. “Law Member: The Court desires that further witnesses be called into the case, and to allow time to secure these witnesses, this case will be continued. We would like to have as witnesses brought before the Court, the parents of this person making the accusation, Rosa Glowsky, and also the sister-in-law that was in the room who could further assist in the identification or identity of the accused. The Court will be continued until a later date set by the T.[rial] J.fudge] A.[dvocate].” The other soldier was acquitted by the court-martial. The acting Army judge advocate in reviewing petitioner’s conviction said: “Four witnesses, all German, positively identified the accused Wade. The same witnesses failed to identify” the other soldier. Our holding that under the circumstances here the Fifth Amendment did not bar trial by the second court-martial makes it unnecessary to consider the following questions discussed in the Government’s brief: (1) To what extent a court-martial’s overruling of a plea of former jeopardy is subject to collateral attack in habeas corpus proceedings. See Carter v. McClaughry, 183 U. S. 365, 390; and cf. Grafton v. United States, 206 U. S. 333, 352-353; Sunal v. Large, 332 U. S. 174, and cases collected in n. 8, p. 179. (2) The validity of the Fortieth Article of War, 41 Stat. 795, 10 U. S. C. § 1511. That article provides in part as follows: “No person shall, without his consent, be tried a second time for the same offense; but no proceeding in which an accused has been found guilty by a court-martial upon any charge or specification shall be held to be a trial in the sense of this article until the reviewing and, if there be one, the confirming authority shall have taken final action upon the case.” Simmons v. United States, 142 U. S. 148, 154; Thompson v. United States, 155 U. S. 271, 273-274. See, e. g., Simmons v. United States, 142 U. S. 148; Logan v. United States, 144 U. S. 263, 297-298; Keerl v. Montana, 213 U. S. 135, 137; Lovato v. New Mexico, 242 U. S. 199. The Manual for Courts-Martial, par. 75a (1928), recommends that where the "... evidence appears to be insufficient for a proper determination of any issue or matter before it, the court may and ordinarily should, take appropriate action with a view to obtaining such available additional evidence as is necessary or advisable for such determination. The court may, for instance, require the trial judge advocate to recall a witness, to summon new witnesses, or to make investigation or inquiry along certain lines with a view to discovering and producing additional evidence.” The opinion of the Board of Review reads in part as follows: “We see nothing which renders the absence of witnesses, as shown by the record of trial in this ease, an emergent situation in exception to the rule in the Federal courts. Their witnesses may lie beyond the reach of process, if process issues witnesses may not respond, oral promises to appear may not be kept, and they may become ill during trial; but such difficulties in proof are not grounds for a termination of trial and a second prosecution. Imperious necessity means a sudden and overwhelming emergency, uncontrollable and unforeseeable, infecting the judicial process and rendering a fair and impartial trial impossible. It does not mean expediency.” Transcript of Record, p. 75. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Chief Justice Burger delivered the opinion of the Court. We granted certiorari to decide whether respondent’s rights under the Confrontation Clause were violated by the introduction of the confession of an accomplice for the non-hearsay purpose of rebutting respondent’s testimony that his own confession was coercively derived from the accomplice’s statement. W Ben Tester was last seen alive on August 26, 1981, as he walked toward his home in Hampton, Tennessee. The next day Tester’s body was found hanging by a nylon rope from an apple tree in his yard. Tester’s house had been ransacked, and it appeared that Tester had struggled with his assailants. Respondent, a neighbor of Tester, was arrested and charged with the murder. At respondent’s trial, which was severed from the trials of others charged with the crime, the State relied on a detailed confession that respondent made during an interview with Sheriff Papantoniou and agents of the Tennessee Bureau of Investigation on September 17, 1981. According to respondent’s confession, he and Clifford Peele decided to burglarize Ben Tester’s house when Tester was away at church. While respondent, Peele and two others were in the house, however, Tester returned home and surprised the intruders. Peele threw Tester to the floor and declared that they were going to “string him up.” Working toward that end, respondent tore a sheet to make a gag for Tester’s mouth. Respondent then watched as the others carried Tester out of the house, placed him in the back of a pickup truck, put a rope around his neck, tied the rope to a tree, and pushed him off the tailgate. Respondent testified at trial that he did not burglarize Tester’s house, nor participate in the murder. He also maintained that his September 17 confession was coerced. The confession, respondent testified, was derived from a written statement that Peele had previously given the Sheriff. Respondent claimed that Sheriff Papantoniou read from Peele’s statement and directed him to say the same thing. In rebuttal, the State called Sheriff Papantoniou to testify about the September 17 interview. The Sheriff denied that respondent was read Peele’s statement or pressured to repeat the terms of Peele’s confession. To corroborate this testimony, and to rebut respondent’s claim that his own confession was a coerced imitation, the Sheriff read Peele’s confession to the jury. Before Peele’s statement was received, however, the trial judge twice informed the jury that it was admitted “not for the purpose of proving the truthfulness of his statement, but for the purpose of rebuttal only.” App. 292, 293. Although Peele’s statement was generally consistent with Street’s confession, there were some differences. For instance, Peele portrayed respondent as an active participant in Tester’s hanging, and respondent’s statement contained factual details that were not found in Peele’s confession. Following the reading of Peele’s confession, the prosecutor elicited from the Sheriff testimony emphasizing the differences between the confessions. The prosecutor referred to Peele’s confession in his closing argument to dispute respondent’s claim that he had been forced to repeat Peele’s statement. The prosecutor noted details of the crime that appeared solely in respondent’s confession and argued that respondent knew these facts because he participated in the murder. In instructing the jury, the trial judge stated: “The Court has allowed an alleged confession or statement by Clifford Peele to be read by a witness. “I instruct you that such can be considered by you for rebutable [sic] purposes only, and you are not to consider the truthfulness of the statement in any way whatsoever.” Id., at 350. Respondent was found guilty and sentenced to life in prison. The Court of Criminal Appeals of Tennessee, ruling that the introduction of Peele’s confession denied respondent his Sixth Amendment right to confront witnesses, reversed. 674 S. W. 2d 741 (1984). The court noted that Peele’s confession was not hearsay evidence because it was not admitted to prove the truth of Peele’s assertions. Nevertheless, the court believed that the jury was left with the impression “that the confession was a true rendition of events on the night of the homicide.” Id., at 745. It held, therefore, that “admission of [Peele’s] confession for any purpose constitutes a denial of [respondent’s] fundamental right to cross-examine those witnesses against him.” Ibid. We granted certiorari. 469 U. S. 929 (1984). We reverse. II A This case is significantly different from the Court’s previous Confrontation Clause cases such as Ohio v. Roberts, 448 U. S. 56 (1980), Dutton v. Evans, 400 U. S. 74 (1970), and Bruton v. United States, 391 U. S. 123 (1968). Confrontation Clause issues arose in Roberts and Dutton because hearsay evidence was admitted as substantive evidence against the defendants. 448 U. S., at 77; 400 U. S., at 79. And in Bruton, the Court considered whether a codefendant’s confession, which was inadmissible hearsay as to Bruton, could be admitted into evidence accompanied by a limiting instruction. 391 U. S., at 135-136. In this case, by contrast, the prosecutor did not introduce Peele’s out-of-court confession to prove the truth of Peele’s assertions. Thus, as the Court of Criminal Appeals acknowledged, Peele’s confession was not hearsay under traditional rules of evidence. 674 S. W. 2d, at 744; accord, Fed. Rule Evid. 801(c). In fact, the prosecutor’s nonhearsay use of Peele’s confession was critical to rebut respondent’s testimony that his own confession was derived from Peele’s. Before the details of Peele’s confession were admitted, the jury could evaluate the reliability of respondent’s confession only by weighing and comparing the testimony of respondent and Sheriff Papantoniou. Once Peele’s statement was introduced, however, the jury could compare the two confessions to determine whether it was plausible that respondent’s account of the crime was a coerced imitation. The nonhearsay aspect of Peele’s confession — not to prove what happened at the murder scene but to prove what happened when respondent confessed — raises no Confrontation Clause concerns. The Clause’s fundamental role in protecting the right of cross-examination, see Douglas v. Alabama, 380 U. S. 415, 418 (1965), was satisfied by Sheriff Papantoniou’s presence on the stand. If respondent’s counsel doubted that Peele’s confession was accurately recounted, he was free to cross-examine the Sheriff. By cross-examination respondent’s counsel could also challenge Sheriff Papantoniou’s testimony that he did not read from Peele’s statement and direct respondent to say the same thing. In short, the State’s rebuttal witness against respondent was not Peele, but Sheriff Papantoniou. See generally Anderson v. United States, 417 U. S. 211, 219-220 (1974). B The only similarity to Bruton is that Peele’s statement, like the codefendant’s confession in Bruton, could have been misused by the jury. If the jury had been asked to infer that Peele’s confession proved that respondent participated in the murder, then the evidence would have been hearsay; and because Peele was not available for cross-examination, Confrontation Clause concerns would have been implicated. The jury, however, was pointedly instructed by the trial court “not to consider the truthfulness of [Peele’s] statement in any way whatsoever.” App. 350. Thus as in Bruton, the question is reduced to whether, in light of the competing values at stake, we may rely on the “‘crucial assumption’” that the jurors followed “‘the instructions given them by the trial judge.’” Marshall v. Lonberger, 459 U. S. 422, 438, n. 6 (1983) (quoting Parker v. Randolph, 442 U. S. 62, 73 (1979) (Rehnquist, J.)). The State’s most important piece of substantive evidence was respondent’s confession. When respondent testified that his confession was a coerced imitation, therefore, the focus turned to the State’s ability to rebut respondent’s testimony. Had the prosecutor been denied the opportunity to present Peele’s confession in rebuttal so as to enable the jury to make the relevant comparison, the jury would have been impeded in its task of evaluating the truth of respondent’s testimony and handicapped in weighing the reliability of his confession. Such a result would have been at odds with the Confrontation Clause’s very mission — to advance “the accuracy of the truth-determining process in criminal trials.” Dutton v. Evans, supra, at 89. Moreover, unlike the situation in Bruton, supra, at 134, there were no alternatives that would have both assured the integrity of the trial’s truth-seeking function and eliminated the risk of the jury’s improper use of evidence. We do not agree with the Court of Criminal Appeals’ suggestion that Peele’s confession could have been edited to reduce the risk of jury misuse “without detracting from the alleged purpose for which the confession was introduced.” 674 S. W. 2d, at 745; see generally Bruton, supra, at 134, n. 10. If all of Peele’s references to respondent had been deleted, it would have been more difficult for the jury to evaluate respondent’s testimony that his confession was a coerced imitation of Peele’s. Indeed, such an approach would have undercut the theory of defense by creating artificial differences between respondent’s and Peele’s confessions. Respondent correctly notes that Sheriff Papantoniou could have pointed out the differences between the two statements without reading Peele’s confession. But such a rebuttal presentation was not the only option constitutionally open. After respondent testified that his confession was based on Peele’s, the Sheriff read Peele’s confession to the jury and answered questions that emphasized the differences. In closing argument, the prosecutor recited the details that appeared only in respondent’s confession, and argued that respondent knew these facts because he participated in the murder. The whole of the State’s rebuttal, therefore, was designed to focus the jury’s attention on the differences, not the similarities between the two confessions. Finally, we reject the Court of Criminal Appeals’ implicit holding that the State was required to call Peele to testify or to forgo effective rebuttal of respondent’s testimony. 674 S. W. 2d, at 745. Because Peele’s confession was introduced to refute respondent’s claim of coercive interrogation, Peele’s testimony would not have made the State’s point. And respondent’s cross-examination of Peele would have been ineffective to undermine the prosecutor’s limited purpose in introducing Peele’s confession. It was appropriate that, instead of forcing the State to call a witness who could offer no relevant testimony on the immediate issue of coercion, the trial judge left to respondent the choice whether to call Peele. HH HH HH The State introduced Peele’s confession for the legitimate, nonhearsay purpose of rebutting respondent’s testimony that his own confession was a coerced “copy” of Peele’s statement. The jury’s attention was directed to this distinctive and limited purpose by the prosecutor’s questions and closing argument. In this context, we hold that the trial judge’s instructions were the appropriate way to limit the jury’s use of that evidence in a manner consistent with the Confrontation Clause. Accordingly, the judgment of the Court of Criminal Appeals is Reversed. Justice Powell took no part in the consideration or decision in this case. The Judicial Commissioner of Carter County testified that respondent made another statement on June 27, 1982, while at the county jail. According to this witness, respondent admitted having placed the rope around Tester’s neck. Peele’s written statement was also introduced into evidence as an exhibit. These details included the color and composition of the rope, the source of the gag placed on Tester, and the taking of money from Tester’s wallet. The Supreme Court of Tennessee denied the State’s application for permission to appeal. The differences between the two confessions do not logically compel the inference that respondent’s testimony was false; for instance, respondent may have invented factual details out of whole cloth. Nevertheless, the discrepancies do cast doubt on respondent’s version of his interrogation. The assumption that jurors are able to follow the court’s instructions fully applies when rights guaranteed by the Confrontation Clause are at issue. See, e. g., Frazier v. Cupp, 394 U. S. 731, 735 (1969). Severance obviously was not an available alternative; respondent’s trial had been severed from those of his codefendants. If Peele did not invoke his privilege against self-incrimination, he might have helped the prosecution prove that respondent participated in the murder; but he would have been of no assistance in rebutting respondent’s claim that he had been forced to repeat Peele’s confession. The parties were aware that Peele was located in the county jail. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Clark delivered the opinion of the Court. This is a habeas corpus action in which the petitioner attacks the validity of the denial of his application for suspension of deportation under the provisions of § 19 (c) of the Immigration Act of 1917. Admittedly deport-able, the petitioner alleged, among other things, that the denial of his application by the Board of Immigration Appeals was prejudged through the issuance by the Attorney General in 1952, prior to the Board’s decision, of a confidential list of “unsavory characters’-’ including petitioner’s name, which made it impossible for him “to secure fair consideration of his case.” The District Judge refused the offer of proof, denying the writ on the allegations of the petitioner without written opinion. A divided panel of the Court of Appeals for the Second Circuit affirmed. 206 F. 2d 897. We granted certiorari. 346 U. S. 884. The Justice Department’s immigration file on petitioner reveals the following relevant facts. He was born in Italy of Italian parents in 1909 and entered the United States by train from Canada in 1932 without immigration inspection and without an immigration visa. This entry clearly falls under § 14 of the Immigration Act of 1924 and is the uncontested ground for deportation. The deportation proceedings against him began in 1947. In 1948 he applied for suspension of deportation pursuant to § 19 (c) of the Immigration Act of 1917. This section as amended in 1948 provides, in pertinent part, that: “In the case of any alien (other than one to whom subsection (d) of this section is applicable) who is deportable under any law of the United States and who has proved good moral character for the preceding five years, the Attorney General may . . . suspend deportation of such alien if he is not ineligible for naturalization or if ineligible, such ineligibility is solely by reason of his race, if he finds (a) that such deportation would result in serious economic detriment to a citizen or legally resident alien who is the spouse, parent, or minor child of such deportable alien; or (b) that such alien has resided continuously in the United States for seven years or more and is residing in the United States upon July 1, 1948.” 8 U. S. C. (1946 ed., Supp. V) § 155 (c). Hearings on the deportation charge and the application for suspension of deportation were held before officers of the Immigration and Naturalization Service at various times from 1948 to 1952. A hearing officer ultimately found petitioner deportable and recommended a denial of discretionary relief. On July 7, 1952, the Acting Commissioner of Immigration adopted the officer’s findings and recommendation. Almost nine months later, on April 3, 1953, the Board of Immigration Appeals affirmed the decision of the hearing officer. A warrant of deportation was issued the same day and arrangements were made for actual deportation to take place on April 24, 1953. The scene of action then shifted to the United States District Court for the Southern District of New York. One day before his scheduled deportation petitioner sued out a writ of habeas corpus. District Judge Noonan dismissed the writ on April 30 and his order, formally entered on May 5, was never appealed. Arrangements were then made for petitioner to depart on May 19. However, on May 15, his wife commenced this action by filing a petition for a second writ of habeas corpus. New grounds were alleged, on information and belief, for attacking the administrative refusal to suspend deportation. The principal ground is that on October 2, 1952— after the Acting Commissioner’s decision in the case but before the decision of the Board of Immigration Appeals— the Attorney General announced at a press conference that he planned to deport certain “unsavory characters”; on or about that date the Attorney General prepared a confidential list of one hundred individuals, including petitioner, whose deportation he wished; the list was circulated by the Department of Justice among all employees in the Immigration Service and on the Board of Immigration Appeals; and that issuance of the list and related publicity amounted to public prejudgment by the Attorney General so that fair consideration of petitioner’s case by the Board of Immigration Appeals was made impossible. Although an opposing affidavit submitted by government counsel denied “that the decision was based on information outside of the record” and contended that the allegation of prejudgment was “frivolous,” the same counsel repeated in a colloquy with the court a statement he had made at the first habeas corpus hearing — “that this man was on the Attorney General’s proscribed list of alien deportees.” District Judge Clancy did not order a hearing on the allegations and summarily refused to issue a writ of habeas corpus. An appeal was taken to the Court of Appeals for the Second Circuit with the contention that the allegations required a hearing in the District Court and that the writ should have been issued if the allegations were proved. A majority of the Court of Appeals’ panel thought the administrative record amply supported a refusal to suspend deportation; found nothing in the record to indicate that the administrative officials considered anything but that record in arriving at a decision in the case; and ruled that the assertion of mere “suspicion and belief” that extraneous matters were considered does not require a hearing. Judge Frank dissented. The same questions presented to the Court of Appeals were raised in the petition for certiorari and are thus properly before us. The crucial question is whether the alleged conduct of the Attorney General deprived petitioner of any of the rights guaranteed him by the statute or by the regulations issued pursuant thereto. Eegulations with the force and effect of law supplement the bare bones of § 19 (c). The regulations prescribe the procedure to be followed in processing an alien’s application for suspension of deportation. Until the 1952 revision of the regulations, the procedure called for decisions at three separate administrative levels below the Attorney General — hearing officer, Commissioner, and the Board of Immigration Appeals. The Board is appointed by the Attorney General, serves at his pleasure, and operates under regulations providing that: “In considering and determining . . . appeals, the Board of Immigration Appeals shall exercise such discretion and power conferred upon the Attorney General by law as is appropriate and necessary for the disposition of the case. The decision of the Board . . . shall be final except in those cases reviewed by the Attorney General . . . .” 8 CFR, 1949, § 90.3 (c). See 8 CFR, Rev. 1952, § 6.1 (d)(1). And the Board was required to refer to the Attorney General for review all cases which: “(a) The Attorney General directs the Board to refer to him. “(b) The chairman or a majority of the Board believes should be referred to the Attorney General for review of its decision. “(c) The Commissioner requests be referred to the Attorney General by the Board and it agrees.” 8 CFR, 1949, § 90.12. See 8 CFR, Rev. 1952, § 6.1 (h)(1)- The regulations just quoted pinpoint the decisive fact in this case: the Board was required, as it still is, to exercise its own judgment when considering appeals. The clear import of broad provisions for a final review by the Attorney General himself would be meaningless if the Board were not expected to render a decision in accord with its own collective belief. In unequivocal terms the regulations delegate to the Board discretionary authority as broad as the statute confers on the Attorney General; the scope of the Attorney General’s discretion became the yardstick of the Board’s. And if the word “discretion” means anything in a statutory or administrative grant of power, it means that the recipient must exercise his authority according to his own understanding and conscience. This applies with equal force to the Board and the Attorney General. In short, as long as the regulations remain operative, the Attorney General denies himself the right to sidestep the Board or dictate its decision in any manner. We think the petition for habeas corpus charges the Attorney General with precisely what the regulations forbid him to do: dictating the Board’s decision. The petition alleges that the Attorney General included the name of petitioner in a confidential list of “unsavory characters” whom he wanted deported; public announcements clearly reveal that the Attorney General did not regard the listing as a mere preliminary to investigation and deportation; to the contrary, those listed were persons whom the Attorney General “planned to deport.” And, it is alleged, this intention was made quite clear to the Board when the list was circulated among its members. In fact, the Assistant District Attorney characterized it as the “Attorney General’s proscribed list of alien deportees.” To be sure, the petition does not allege that the “Attorney General ordered the Board to deny discretionary relief to the listed aliens.” It would be naive to expect such a heavy-handed way of doing things. However, proof was offered and refused that the Commissioner of Immigration told previous counsel of petitioner, “We can’t do a thing in your case because the Attorney General has his [petitioner’s] name on that list of a hundred.” We believe the allegations are quite sufficient where the body charged with the exercise of discretion is a nonstatutory board composed of subordinates within a department headed by the individual who formulated, announced, and circulated such views of the pending proceeding. It is important to emphasize that we are not here reviewing and reversing the manner in which discretion was exercised. If such were the case we would be discussing the evidence in the record supporting or undermining the alien’s claim to discretionary relief. Rather, we object to the Board’s alleged failure to exercise its own discretion, contrary to existing valid regulations. If petitioner can prove the allegation, he should receive a new hearing before the Board without the burden of previous proscription by the list. After the recall or cancellation of the list, the Board must rule out any consideration thereof and in arriving at its decision exercise its own independent discretion, after a fair hearing, which is nothing more than what the regulations accord petitioner as a right. Of course, he may be unable to prove his allegation before the District Court; but he is entitled to the opportunity to try. If successful, he may still fail to convince the Board or the Attorney General, in the exercise of their discretion, that he is entitled to suspension, but at least he will have been afforded that due process required by the regulations in such proceedings. Reversed. 39 Stat. 889, as amended, 8 U. S. C. (1946 ed., Supp. V) § 155 (c). Section 405 is the savings clause of the Immigration and Nationality Act of 1952 and its subsection (a) provides that: “Nothing contained in this Act, unless otherwise specifically provided therein, shall be construed to affect the validity of any . . . proceeding which shall be valid at the time this Act shall take effect; or to affect any . . . proceedings . . . brought ... at the time this Act shall take effect; but as to all such . . . proceedings, . . . the statutes or parts of statutes repealed by this Act are, unless otherwise specifically provided therein, hereby continued in force and effect. . . . An application for suspension of deportation under section 19 of the Immigration Act of 1917, as amended, . . . which is pending on the date of enactment of this Act [June 27, 1952], shall be regarded as a proceeding within the meaning of this subsection.” 66 Stat. 280, 8 U. S. C. (1952 ed.), p. 734. Since Accardi’s application for suspension of deportation was made in 1948, § 19 (c) of the 1917 Act continues to govern this proceeding rather than its more stringent equivalent in the 1952 Act, § 244, 66 Stat. 214, 8 U. S. C. (1952 ed.) § 1254. “Any alien who at any time after entering the United States is found to have been at the time of entry not entitled under this Act to enter the United States . . . shall be taken into custody and deported in the same manner as provided for in sections 19 and 20 of the Immigration Act of 1917 . . . .” 43 Stat. 162, 8 U. S. C. (1946 ed.) § 214. This ground for deportation is perpetuated by § 241 (a) (1) and (2) of the Immigration and Nationality Act of 1952. 66 Stat. 204, 8 U. S. C. (1952 ed.) § 1251 (a)(1) and (2). Meanwhile, Accardi moved the Board of Immigration Appeals to reconsider his case. The motion was denied on May 8. Res judicata does not apply to proceedings for habeas corpus. Salinger v. Loisel, 265 U. S. 224 (1924); Wong Doo v. United States, 265 U. S. 239 (1924). The first ground was that "in all similar cases the Board of Immigration Appeals has exercised favorable discretion and its refusal to do so herein constitutes an abuse of discretion.” This is a wholly frivolous contention, adequately disposed of by the Court of Appeals. 206 F. 2d 897, 901. Another allegation charged "that the Department of Justice maintains a confidential file with respect to [Joseph Accardi].” But at no place does the petition elaborate on this charge, nor does the petition allege that discretionary relief was denied because of information contained in a confidential file. Although the petition does allege that “because of consideration of matters outside the record of his immigration hearing, discretionary relief has been denied,” this allegation seems to refer to the “confidential list” discussed in the body of the opinion. Hence we assume that the charge of reliance on confidential information merely repeats the principal allegation that the Attorney General’s prejudgment of Accardi’s case by issuance of the “confidential list” caused the Board to deny discretionary relief. The applicable regulations in effect during most of this proceeding appear at 8 CFR, 1949, Pts. 150 and 90 and 8 CFR, 1951 Pocket Supp., Pts. 150, 151 and 90. The corresponding sections in the 1952 revision of the regulations, promulgated pursuant to the Immigration and Nationality Act of 1952, may be found at 8 CFR, Rev. 1952, Pts. 242-244 and 6; 8 CFR, 1954 Pocket Supp., Pts. 242-244 and 6; 19 Fed. Reg. 930. See Boske v. Comingore, 177 U. S. 459 (1900); United States ex rel. Bilokumsky v. Tod, 263 U. S. 149, 155 (1923); Bridges v. Wixon, 326 U. S. 135, 150-156 (1945). See the Bilokumsky and Bridges cases cited in note 7, supra. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Chief Justice Vinson delivered ■ the opinion of thp Court. We are once again faced with the recurring problem of determining what,- if any, is the appropriate post-trial procedure in .Illinois by which claims of infringement of federal rights may be raised. See Woods v. Nierstheimer, 328 U. S. 211; Marino v. Ragen, 332 U. S. 561; Loftus v. Illinois, 334 U. S. 804. In 1946, petitioner pleaded guilty to an indictment charging' him with having committed burglary and larceny and wap sentenced to five to seven years imprisonment. A year later he filed a petition for a writ of habeas corpus in the Circuit Court of Randolph County, Illinois, the sentencing, court, containing allegations which, if true, raise substantial questions under the due process clause of- the Fourteenth Amendment. The Attorney General of Illinois concedes that petitioner is entitled to a hearing into the truth or falsity of the charges. The court to which the petition for a writ of habeas corpus was directed denied the petition without holding a hearing, however, for the reason that it “is insufficient in law and substance.” We granted the petition for a writ of certiorari, 334 U. S. 810, to consider the question thus presented. The Attorney General explains the circuit court’s denial of the petition for the writ as based upon state procedural grounds: that habeas corpus was not an appropriate remedy for the relief of denials of due process. He contends, however, that while the circuit court was correct in its interpretation of Illinois law when it denied the petition/ certain statements in the Illinois Supreme Court’s opinions, in People v. Loftus, 400 Ill. 432, 81 N. E. 2d 495; People v. Shoffner, 400 Ill. 174, 79 N. E. 2d 200; and People v. Wilson, 399 Ill. 437, 78 N. E. 2d 514, all of which were handed down subsequent to the circuit court’s denial of relief, strongly indicate that habeas corpus would now be the appropriate Illinois procedure in a case such as' the one before us. His contention is, in other words, that while the petition for habeas corpus was properly denied when acted upon below, the decisions just cited probably broaden the scope of habeas corpus in Illinois, so that a denial of a hearing would be erroneous if the petition were again presented to the circuit court. The situation is further complicated, however, by the •fact that many circuit courts, whose decisions upon habeas corpus are unreviewable by the staté supreme court under Illinois law, have continued to deny petitions for habeas corpus on procedural grounds since the supreme court’s “announcement” in People v. Loftus, supra. The Attorney General’s position concerning these denials, as we understand it, is that these decisions may be wrong, depending upon whether his interpretation of the Loftus “announcement” is the correct one, but that whether right or wrong, they are decisions solely upon a question of Illinois procedural law and thus do not warrant invocation of the jurisdiction of this Court. Of course we do not review state decisions which rest upon adequate nonfederal grounds, and of course Illinois may choose the procedure it deems appropriate for the vindication of federal rights. Loftus v. Illinois, supra. But it is not simply a question of state procedure when a state court of last resort closes the door to any consideration of a claim of denial of a federal right. And that is the effect of the denials of'habeas corpus in a number of cases now before this Court, for in none of the cases does the Attorney General suggest that either of the other two Illinois post-trial remedies, writ of error and coram nobis, is appropriate. Unless habeas corpus is available, therefore, we are led to believe that Illinois offers no post-trial remedy in • cases of this kind. The doctrine of exhaustion of state remedies, to which this Court has required the scrupulous adherence of all federal courts, see Ex parte Hawk, 321 U. S. 114 and cases cited, presupposes that some adequate state remedy exists. We recognize the difficulties with which the Illinois Supreme Court is faced in adapting available state procedures to the requirement that prisoners be given some clearly defined method by which they may raise claims of denial of federal rights. Nevertheless, that requirement must be met. If there is' now no.-post-trial procedure by which federal .rights may be vindicated- in Illinois, we wish to be advised of that fact upon remánd of this case. ' Seven other petitions for certiorari which raise substantial questions under the due-process clause of the Fourteenth Amendment are now before-this Court following denials of habeas corpus'by Illinois circuit courts or the Criminal Court of Cook County. - In none of these cases was a hearing held or the petitioner, pérmitted to submit proof of the truth of his allegations. In three instances, the denial of habeas corpus occurred prior t.o the supreme court’s “announcement” in People v. Loftus, supra, as was true- in the case of Young. A similar disposition of these petitions is therefore required. Four petitions for certiorari involve denials of habeas corpus subsequent to the Loftus “announcement.” It may well be that these decisions represent the opinion of four Illinois cirepót judges that habeas corpus is not an appropriate remedy under Illinois law despite the Loftus opinion. Out of an abundance of caution, we have concluded, however, that these cases should also be remande.d to the state courts, since it is possible that the Lo'ftus- “announcement” was not brought to their attention or its possible significance pointed out. As in the other cases, we wish to be advised, if a hearing is again denied, whether the court is of the opinion that habeas corpus is not an appropriate remedy in Illinois in cases raising questions under the. due-process clause of the Fourteenth Amendment. • Accordingly, the order denying the. petition for a writ of habeas corpus in No. 50, Young v. Ragen, is vacated and the cause remanded for consideration of the present availability of habeas corpus in the light of the State Supreme Court’s “announcement” in People v. Loftus, supra, and other relevant Illinois decisions. The petitions for certiorari in No. 47, Misc., Evans v. Nierstheimer; in No. 106, Misc., Willis v. Ragen; im No. 109, Misc., Thompson v. Ragen; in No. 184, Misc., Lewis v. Ragen; in No. 372, Misc., Sherman v. Ragen et al.; and in No. 374, Misc., Banks v. Ragen, are granted. The orders denying petitions for writs of habeas corpus in these cases, together with that in No. 760, Smith v. Ragen are vacated and the" causes remanded for similar consideration; Orders will be entered accordingly. Existing law as declared by Ex parte Hawk was made a part of the statute by the new Judicial Code, 28 U. S. C. §2254, which provides: “An application for a writ- of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless' it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an. absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner. "An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.” Certiorari granted, 336 U. S. 966. (Docketed as Xo. 265, Misc.) Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Stevens delivered the opinion of the Court. An unusual metaphor in a critical review of an unusual loudspeaker system gave rise to product disparagement litigation that presents us with a procedural question of first impression: Does Rule 52(a) of the Federal Rules of Civil Procedure prescribe the standard to be applied by the Court of Appeals in its review of a District Court’s determination that a false statement was made with the kind of “actual malice” described in New York Times Co. v. Sullivan, 376 U. S. 254, 279-280 (1964)? In the May 1970 issue of its magazine, Consumer Reports, respondent published a seven-page article evaluating the quality of numerous brands of medium-priced loudspeakers. In a boxed-off section occupying most of two pages, respondent commented on “some loudspeakers of special interest,” one of which was the Bose 901 — an admittedly “unique and unconventional” system that had recently been placed on the market by petitioner. After describing the system and some of its virtues, and after noting that a listener “could pinpoint the location of various instruments much more easily with a standard speaker than with the Bose system,” respondent’s article made the following statements: “Worse, individual instruments heard through the Bose system seemed to grow to gigantic proportions and tended to wander about the room. For instance, a violin appeared to be 10 feet wide and a piano stretched from wall to wall. With orchestral music, such effects seemed inconsequential. But we think they might become annoying when listening to soloists.” Plaintiff’s Exhibit 2, p. 274. After stating opinions concerning the overall sound quality, the article concluded: “We think the Bose system is so unusual that a prospective buyer must listen to it and judge it for himself. We would suggest delaying so big an investment until you were sure the system would please you after the novelty value had worn off.” Id., at 275. Petitioner took exception to numerous statements made in the article, and when respondent refused to publish a retraction, petitioner commenced this product disparagement action in the United States District Court for the District of Massachusetts. After a protracted period of pretrial discovery, the District Court denied respondent’s motion for summary judgment, 84 F. R. D. 682 (1980), and conducted a 19-day bench trial on the issue of liability. In its lengthy, detailed opinion on the merits of the case, 508 F. Supp. 1249 (1981), the District Court ruled in respondent’s favor on most issues. Most significantly, the District Court ruled that the petitioner is a “public figure” as that term is defined in Gertz v. Robert Welch, Inc., 418 U. S. 328, 342, 345, 351-352 (1974), for purposes of this case and therefore the First Amendment, as interpreted in New York Times Co. v. Sullivan, 376 U. S., at 279-280, precludes recovery in this product disparagement action unless the petitioner proved by clear and convincing evidence that'respondent made a false disparaging statement with “actual malice.” On three critical points, however, the District Court agreed with petitioner. First, it found that one sentence in the article contained a “false” statement of “fact” concerning the tendency of the instruments to wander. Based primarily on testimony by the author of the article, the District Court found that instruments heard through the speakers tended to wander “along the wall,” rather than “about the room” as reported by respondent. Second, it found that the statement was disparaging. Third, it concluded “on the basis of proof which it considers clear and convincing, that the plaintiff has sustained its burden of proving that the defendant published a false statement of material fact with the knowledge that it was false or with reckless disregard of its truth or falsity.” 508 F. Supp., at 1277. Judgment was entered for petitioner on the product disparagement claim. The United States Court of Appeals for the First Circuit reversed. 692 F. 2d 189 (1982). The court accepted the finding that the comment about wandering instruments was disparaging. It assumed, without deciding, that the statement was one of fact, rather than opinion, and that it was false, observing that “stemming at least in part from the uncertain nature of the statement as one of fact or opinion, it is difficult to determine with confidence whether it is true or false.” Id., at 194. After noting that petitioner did not contest the conclusion that it was a public figure, or the applicability of the New York Times standard, the Court of Appeals held that its review of the “actual malice” determination was not “limited” to the clearly-erroneous standard of Rule 52(a); instead, it stated that it “must perform a de novo review, independently examining the record to ensure that the district court has applied properly the governing constitutional law and that the plaintiff has indeed satisfied its burden of proof.” Id., at 195. It added, however, that it “[was] in no position to consider the credibility of witnesses and must leave questions of demeanor to the trier of fact.” Ibid. Based on its own review of the record, the Court of Appeals concluded: “[W]e are unable to find clear and convincing evidence that CU published the statement that individual instruments tended to wander about the room with knowledge that it was false or with reckless disregard of whether it was false or not. The evidence presented merely shows that the words in the article may not have described precisely what the two panelists heard during the listening test. CU was guilty of using imprecise language in the article — perhaps resulting from an attempt to produce a readable article for its mass audience. Certainly this does not support an inference of actual malice.” Id., at 197. We granted certiorari to consider whether the Court of Appeals erred when it refused to apply the clearly-erroneous standard of Rule 52(a) to the District Court’s “finding” of actual malice. 461 U. S. 904 (1983). I — ( To place the issue m focus, it is necessary to state m somewhat greater detail (a) the evidence on the “actual malice” issue; and (b) the basis for the District Court’s determination. Evidence of Actual Malice. At trial petitioner endeavored to prove that the key sentence embodied three distinct falsehoods about instruments heard through the Bose system: (1) that their size seemed grossly enlarged; (2) that they seemed to move; and (3) that their movement was “about the room.” Although a great deal of the evidence concerned the first two points, the District Court found that neither was false. It concluded that the average reader would understand that the reference to enlarged instruments was intended to describe the size of the area from which the sound seemed to emanate rather than to any perception about the actual size of the musical instruments being played, rejecting as “absurd” the notion that readers would interpret the figurative language literally. 508 F. Supp., at 1266. After referring to testimony explaining that “a certain degree of movement of the location of the apparent sound source is to be expected with all stereo loudspeaker systems,” the District Court recognized that the statement was accurate insofar as it reported that “instruments... tended to wander....” Id., at 1267. Thus, neither the reference to the apparent size of the instruments, nor the reference to the fact that instruments appeared to move, was false. The statement that instruments tended to wander “about the room” was found false because what the listeners in the test actually perceived was an apparent movement back and forth along the wall in front of them and between the two speakers. Because an apparent movement “about the room” — rather than back and forth — would be so different from what the average listener has learned to expect, the District Court concluded that “the location of the movement of the apparent sound source is just as critical to a reader as the fact that movement occurred.” Ibid. The evidence concerning respondent’s knowledge of this falsity focused on Arnold Seligson, an engineer employed by respondent. Seligson supervised the test of the Bose 901 and prepared the written report upon which the published article was based. His initial in-house report contained this sentence: ‘“Instruments not only could not be placed with precision but appeared to suffer from giganticism and a tendency to wander around the room; a violin seemed about 10 ft. wide, a piano stretched from wall to wall, etc.’ ” Id., at 1264, n. 28. Since the editorial revision from “around the room” to “about the room” did not change the meaning of the false statement, and since there was no evidence that the editors were aware of the inaccuracy in the original report, the actual-malice determination rests entirely on an evaluation of Seligson’s state of mind when he wrote his initial report, or when he checked the article against that report. Seligson was deposed before trial and testified for almost six days at the trial itself. At one point in his direct examination, he responded at length to technical testimony by Dr. Bose, explaining the scientific explanation for the apparent movement of the source of sound back and forth across a wall. App. 117-122. The trial judge then questioned Selig-son, and that questioning revealed that the movement which Seligson had heard during the tests was confined to the wall. During his cross-examination, at counsel’s request he drew a rough sketch of the movement of the sound source that he intended to describe with the words “tended to wander about the room”; that sketch revealed a back and forth movement along the wall between the speakers. He was then asked: “Q. Mr. Seligson, why did you use the words ‘tended to wander about the room’ to describe what you have drawn on the board? “A. Well, I don’t know what made me pick that particular choice of words. Would you have been more satisfied if we said ‘across/ — I think not — instead of before. I have the feeling you would have objected in either event. The word ‘about’ meant just as I drew it on the board. Now, I so testified in my deposition.” Id., at 169. The District Court’s Actual-Malice Determination. The District Court’s reasons for finding falsity in the description of the location of the movement of the wandering instruments provided the background for its ruling on actual malice. The court concluded that “no reasonable reader” would understand the sentence as describing lateral movement along the wall. Because the “average reader” would interpret the word “about” according to its “plain ordinary meaning,” the District Court unequivocally rejected Selig-son’s testimony — and respondent’s argument — that the sentence, when read in context, could be understood to refer to lateral movement. On similar reasoning the District Court found Seligson’s above-quoted explanation of the intended meaning of the sentence incredible. The District Court reasoned: “Thus, according to Seligson, the words used in the Article — ‘About the room’ — mean something different to him than they do to the populace in general. If Seligson is to be believed, at the time of publication of the Article he interpreted, and he still interprets today, the words ‘about the room’ to mean ‘along the wall.’ After careful consideration of Seligson’s testimony and of his demeanor at trial, the Court finds that Seligson’s testimony on this point is not credible. Seligson is an intelligent person whose knowledge of the English language cannot be questioned. It is simply impossible for the Court to believe that he interprets a commonplace word such as ‘about’ to mean anything other than its plain ordinary meaning. “Based on the above finding that Seligson’s testimony to the contrary is not credible, the Court further finds that at the time of the Article’s publication Seligson knew that the words ‘individual instruments... tended to wander about the room’ did not accurately describe the effects that he and Lefkow had heard during the ‘special listening test.’ Consequently, the Court concludes, on the basis of proof which it considers clear and convincing, that the plaintiff has sustained its burden of proving that the defendant published a false statement of material fact with the knowledge that it was false or with reckless disregard of its truth or falsity.” 508 F. Supp., at 1276-1277. Notably, the District Court’s ultimate determination of actual malice was framed as a conclusion and was stated in the disjunctive. Even though the District Court found it impossible to believe that Seligson — at the time of trial — was truthfully maintaining that the words “about the room” could fairly be read, in context, to describe lateral movement rather than irregular movement throughout the room, the District Court did not identify any independent evidence that Seligson realized the inaccuracy of the statement, or entertained serious doubts about its truthfulness, at the time of publication. II This is a case in which two well-settled and respected rules of law point in opposite directions. Petitioner correctly reminds us that Rule 52(a) provides: “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” We have repeatedly held that the Rule means what it says. Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844, 855-856 (1982); Pullman-Standard v. Swint, 456 U. S. 273, 287 (1982); United States v. United States Gypsum Co., 333 U. S. 364, 394-396 (1948). It surely does not stretch the language of the Rule to characterize an inquiry into what a person knew at a given point in time as a question of “fact.” In this case, since the trial judge expressly commented on Seligson’s credibility, petitioner argues that the Court of Appeals plainly erred when it refused to uphold the District Court’s actual-malice “finding” under the clearly-erroneous standard of Rule 52(a). On the other hand, respondent correctly reminds us that in cases raising First Amendment issues we have repeatedly held that an appellate court has an obligation to “make an independent examination of the whole record” in order to make sure that “the judgment does not constitute a forbidden intrusion on the field of free expression.” New York Times Co. v. Sullivan, 376 U. S., at 284-286. See also NAACP v. Claiborne Hardware Co., 458 U. S. 886, 933-934 (1982); Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U. S. 6, 11 (1970); St. Amant v. Thompson, 390 U. S. 727, 732-733 (1968). Although such statements have been made most frequently in cases to which Rule 52(a) does not apply because they arose in state courts, respondent argues that the constitutional principle is equally applicable to federal litigation. We quite agree; surely it would pervert the concept of federalism for this Court to lay claim to a broader power of review over state-court judgments than it exercises in reviewing the judgments of intermediate federal courts. Our standard of review must be faithful to both Rule 52(a) and the rule of independent review applied in New York Times Co. v. Sullivan. The conflict between the two rules is in some respects more apparent than real. The New York Times rule emphasizes the need for an appellate court to make an independent examination of the entire record; Rule 52(a) never forbids such an examination, and indeed our seminal decision on the Rule expressly contemplated a review of the entire record, stating that a “finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., supra, at 395 (emphasis supplied). Moreover, Rule 52(a) commands that “due regard” shall be given to the trial judge’s opportunity to observe the demeanor of the witnesses; the constitutionally based rule of independent review permits this opportunity to be given its due. Indeed, as we previously observed, the Court of Appeals in this case expressly declined to second-guess the District Judge on the credibility of the witnesses. The requirement that special deference be given to a trial judge’s credibility determinations is itself a recognition of the broader proposition that the presumption of correctness that attaches to factual findings is stronger in some cases than in others. The same “clearly erroneous” standard applies to findings based on documentary evidence as to those based entirely on oral testimony, see United States Gypsum Co., supra, at 394, but the presumption has lesser force in the former situation than in the latter. Similarly, the standard does not change as the trial becomes longer and more complex, but the likelihood that the appellate court will rely on the presumption tends to increase when trial judges have lived with the controversy for weeks or months instead of just a few hours. One might therefore assume that the cases in which the appellate courts have a duty to exercise independent review are merely those in which the presumption that the trial court’s ruling is correct is particularly weak. The difference between the two rules, however, is much more than a mere matter of degree. For the rule of independent review assigns to judges a constitutional responsibility that cannot be delegated to the trier of fact, whether the factfinding function be performed in the particular case by a jury or by a trial judge. Rule 52(a) applies to findings of fact, including those described as “ultimate facts” because they may determine the outcome of litigation. See Pullman-Standard v. Swint, 456 U. S., at 287. But Rule 52(a) does not inhibit an appellate court’s power to correct errors of law, including those that may infect a so-called mixed finding of law and fact, or a finding of fact that is predicated on a misunderstanding of the governing rule of law. See ibid.; Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S., at 855, n. 15. Nor does Rule 52(a) “furnish particular guidance with respect to distinguishing law from fact.” Pullman Standard v. Swint, 456 U. S., at 288. What we have characterized as “the vexing nature” of that distinction, ibid., does not, however, diminish its importance, or the importance of the principles that require the distinction to be drawn in certain cases. In a consideration of the possible application of the distinction to the issue of “actual malice,” at least three characteristics of the rule enunciated in the New York Times case are relevant. First, the common-law heritage of the rule itself assigns an especially broad role to the judge in applying it to specific factual situations. Second, the content of the rule is not revealed simply by its literal text, but rather is given meaning through the evolutionary process of common-law adjudication; though the source of the rule is found in the Constitution, it is nevertheless largely a judge-made rule of law. Finally, the constitutional values protected by the rule make it imperative that judges — and in some cases judges of this Court — make sure that it is correctly applied. A few words about each of these aspects of the rule are appropriate. The federal rule that prohibits a public official from recovering damages for a defamatory falsehood unless he proves that the false “statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not,” New York Times, 376 U. S., at 279-280, has its counterpart in rules previously adopted by a number of state courts and extensively reviewed by scholars for generations. The earlier defamation cases, in turn, have a kinship to English cases considering the kind of motivation that must be proved to support a common-law action for deceit. It has long been recognized that the formulation of a rule of this kind “allows the judge the maximum of power in passing judgment in the particular case.” Moreover, the exercise of this power is the process through which the rule itself evolves and its integrity is maintained. As we have explained, the meaning of some concepts cannot be adequately expressed in a simple statement: “These considerations fall short of proving St. Amant’s reckless disregard for the accuracy of his statements about Thompson. ‘Reckless disregard,’ it is true, cannot be fully encompassed in one infallible definition. Inevitably its outer limits will be marked out through case-by-case adjudication, as is true with so many legal standards for judging concrete cases, whether the standard is provided by the Constitution, statutes, or case law. Our cases, however, have furnished meaningful guidance for the further definition of a reckless publication.” St. Amant v. Thompson, 390 U. S., at 730-731. When the standard governing the decision of a particular case is provided by the Constitution, this Court’s role in marking out the limits of the standard through the process of case-by-case adjudication is of special importance. This process has been vitally important in cases involving restrictions on the freedom of speech protected by the First Amendment, particularly in those cases in which it is contended that the communication in issue is within one of the few classes of “unprotected” speech. The First Amendment presupposes that the freedom to speak one’s mind is not only an aspect of individual liberty— and thus a good unto itself — but also is essential, to the common quest for truth and the vitality of society as a whole. Under our Constitution “there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” Gertz v. Robert Welch, Inc., 418 U. S., at 339-340 (footnote omitted). Nevertheless, there are categories of communication and certain special utterances to which the majestic protection of the First Amendment does not extend because they “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942). Libelous speech has been held to constitute one such category, see Beauharnais v. Illinois, 343 U. S. 250 (1952); others that have been held to be outside the scope of the freedom of speech are fighting words, Chaplinsky v. New Hampshire, supra, incitement to riot, Brandenburg v. Ohio, 395 U. S. 444 (1969), obscenity, Roth v. United States, 354 U. S. 476 (1957), and child pornography, New York v. Ferber, 458 U. S. 747 (1982). In each of these areas, the limits of the unprotected category, as well as the unprotected character of particular communications, have been determined by the judicial evaluation of special facts that have been deemed to have constitutional significance. In such cases, the Court has regularly conducted an independent review of the record both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited. Providing triers of fact with a general description of the type of communication whose content is unworthy of protection has not, in and of itself, served sufficiently to narrow the category, nor served to eliminate the danger that decisions by triers of fact may inhibit the expression of protected ideas. The principle of viewpoint neutrality that underlies the First Amendment itself, see Police Department of Chicago v. Mosley, 408 U. S. 92, 95-96 (1972), also imposes a special responsibility on judges whenever it is claimed that a particular communication is unprotected. See generally Terminiello v. Chicago, 337 U. S. 1, 4 (1949). We have exercised independent judgment on the question whether particular remarks “were so inherently inflammatory as to come within that small class of 'fighting words’ which are ‘likely to provoke the average person to retaliation, and thereby cause a breach of the peace,’” Street v. New York, 394 U. S. 576, 592 (1969), and on the analogous question whether advocacy is directed to inciting or producing imminent lawless action, Hess v. Indiana, 414 U. S. 105, 108-109 (1973) (per curiam); compare id., at 111 (Rehnquist, J., dissenting) (“The simple explanation for the result in this case is that the majority has interpreted the evidence differently from the courts below”); Edwards v. South Carolina, 372 U. S. 229, 235 (1963) (recognizing duty “to make an independent examination of the whole record”); Pennekamp v. Florida, 328 U. S. 331, 335 (1946) (“[W]e are compelled to examine for ourselves the statements in issue... to see whether or not they do carry a threat of clear and present danger... or whether they are of a character which the principles of the First Amendment... protect”). Similarly, although under Miller v. California, 413 U. S. 15 (1973), the questions of what appeals to “prurient interest” and what is “patently offensive” under the community standard obscenity test are “essentially questions of fact,” id., at 30, we expressly recognized the “ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary,” id., at 25. We have therefore rejected the contention that a jury finding of obscenity ml non is insulated from review so long as the jury was properly instructed and there is some evidence to support its findings, holding that substantive constitutional limitations govern. In Jenkins v. Georgia, 418 U. S. 153, 159-161 (1974), based on an independent examination of the evidence — the exhibition of a motion picture — the Court held that the film in question “could not, as a matter of constitutional law, be found to depict sexual conduct in a patently offensive way....” Id., at 161. And in its recent opinion identifying a new category of unprotected expression — child pornography — the Court expressly anticipated that an “independent examination” of the allegedly unprotected material may be necessary “to assure ourselves that the judgment... ‘does not constitute a forbidden intrusion on the field of free expression.’” New York v. Ferber, 458 U. S., at 774, n. 28 (quoting New York Times Co. v. Sullivan, 376 U. S., at 285). Hence, in New York Times Co. v. Sullivan, after announcing the constitutional requirement for a finding of “actual malice” in certain types of defamation actions, it was only natural that we should conduct an independent review of the evidence on the dispositive constitutional issue. We explained our action as follows: “This Court’s duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles have been constitutionally applied. This is such a case, particularly since the question is one of alleged trespass across ‘the line between speech unconditionally guaranteed and speech which may legitimately be regulated.’ Speiser v. Randall, 357 U. S. 513, 525. In cases where that line must be drawn, the rule is that we ‘examine for ourselves the statements in issue and the circumstances under which they were made to see... whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect.’ Pennekamp v. Florida, 328 U. S. 331, 335; see also One, Inc. v. Olesen, 355 U. S. 371; Sunshine Book Co. v. Summerfield, 355 U. S. 372. We must ‘make an independent examination of the whole record,’ Edwards v. South Carolina, 372 U. S. 229, 235, so as to assure ourselves that the judgment does not constitute a forbidden instrusion on the field of free expression.” 376 U. S., at 285 (footnote omitted). In Time, Inc. v. Pape, 401 U. S. 279 (1971), a case in which the Federal District Court had entered a directed verdict, we again conducted an independent examination of the evidence on the question of actual malice, labeling our definition of “actual malice” as a “constitutional rule” and stating that the question before us was whether that rule had been correctly applied to the facts of the case, id., at 284. Again we stated that independent inquiries “of this kind are familiar under the settled principle that ‘[i]n cases in which there is a claim of denial of rights under the Federal Constitution, this Court is not bound by the conclusions of lower courts, but will reexamine the evidentiary basis on which those conclusions are founded,’” noting that “in cases involving the area of tension between the First and Fourteenth Amendments on the one hand and state defamation laws on the other, we have frequently had occasion to review ‘the evidence in the... record to determine whether it could constitutionally support a judgment’ for the plaintiff.” Ibid, (citations omitted). In Monitor Patriot Co. v. Roy, 401 U. S. 265, 277 (1971) the Court held “as a matter of constitutional law” that the jury could not be allowed to determine the relevance of a defamatory statement to the plaintiff’s status as a public figure. We explained that the jury’s application of such a standard “is unlikely to be neutral with respect to the content of speech and holds a real danger of becoming an instrument for the suppression of those ‘vehement, caustic, and sometimes unpleasantly sharp attacks,’ New York Times, supra, at 270, which must be protected if the guarantees of the First and Fourteenth Amendments are to prevail.” Ibid. The requirement of independent appellate review reiterated in New York Times Co. v. Sullivan is a rule of federal constitutional law. It emerged from the exigency of deciding concrete cases; it is law in its purest form under our common-law heritage. It reflects a deeply held conviction that judges — and particularly Members of this Court — must exercise such review in order to preserve the precious liberties established and ordained by the Constitution. The question whether the evidence in the record in a defamation case is of the convincing clarity required to strip the utterance of First Amendment protection is not merely a question for the trier of fact. Judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of “actual malice.” r — 4 hH The Court of Appeals was correct in its conclusions (1) that there is a significant difference between proof of actual malice and mere proof of falsity, and (2) that such additional proof is lacking in this case. The factual portion of the District Court’s opinion may fairly be read as including the following findings: (1) Selig-son’s actual perception of the apparent movement of the sound source at the time the Bose 901 was tested was “along the wall” rather than “about the room”; (2) even when the words in the disputed sentence are read in the context of the entire article, neither the “average reader,” nor any other intelligent person, would interpret the word “about” to mean “across”; (3) Seligson is an intelligent, well-educated person; (4) the words “about the room” have the same meaning for Seligson as they do for the populace in general; and (5) although he was otherwise a credible witness, Seligson’s testimony that (a) he did not “know what made me pick that particular choice of words” and (b) that the word “about” meant what he had drawn on the board, is not credible. When the testimony of a witness is not believed, the trier of fact may simply disregard it. Normally the discredited testimony is not considered a sufficient basis for drawing a contrary conclusion. See Moore v. Chesapeake & Ohio R. Co., 340 U. S. 573, 575 (1951). In this case the trial judge found it impossible to believe that Seligson continued to maintain that the word “about” meant “across.” Seligson’s testimony does not rebut any inference of actual malice that the record otherwise supports, but it is equally clear that it does not constitute clear and convincing evidence of actual malice. Seligson displayed a capacity for rationalization. He had made a mistake and when confronted with it, he refused to admit it and steadfastly attempted to maintain that no mistake had been made — that the inaccurate was accurate. That attempt failed, but the fact that he made the attempt does not establish that he realized the inaccuracy at the time of publication. Aside from Seligson’s vain attempt to defend his statement as a precise description of the nature of the sound movement, the only evidence of actual malice on which the District Court relied was the fact that the statement was an inaccurate description of what Seligson had actually perceived. Seligson of course had insisted “I know what I heard.” The trial court took him at his word, and reasoned that since he did know what he had heard, and he knew that the meaning of the language employed did not accurately reflect what he heard, he must have realized the statement was inaccurate at the time he wrote it. “Analysis of this kind may be adequate when the alleged libel purports to be an eyewitness or other direct account of events that speak for themselves.” Time, Inc. v. Pape, 401 U. S., at 285. See generally The Santissima Trinidad, 7 Wheat. 283, 338-339 (1822). Here, however, adoption of the language chosen was “one of a number of possible rational interpretations” of an event “that bristled with ambiguities” and descriptive challenges for the writer. Time, Inc. v. Pape, supra, at 290. The choice of such language, though reflecting a misconception, does not place the speech beyond the outer limits of the First Amendment’s broad protective umbrella. Under the District Court’s analysis, any individual using a malapropism might be liable, simply because an intelligent speaker would have to know that the term was inaccurate in context, even though he did not realize his folly at the time. The statement in this case represents the sort of inaccuracy that is commonplace in the forum of robust debate to which the New York Times rule applies. 401 U. S., at 292. “Realistically,... some error is inevitable; and the difficulties of separating fact from fiction convinced the Court in New York Times, Butts, Gertz, and similar cases to limit liability to instances where some degree of culpability is present in order to eliminate the risk of undue self-censorship and the suppression of truthful material.” Herbert v. Lando, 441 U. S. 153, 171-172 (1979). “[E]rroneous statement is inevitable in free debate, and... must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need... to survive.’” New York Times Co. v. Sullivan, 376 U. S., at 271-272 (citation omitted). The Court of Appeals entertained some doubt concerning the ruling that the New York Times rule should be applied to a claim of product disparagement based on a critical review of a loudspeaker system. We express no view on that ruling, but having accepted it for purposes of deciding this case, we agree with the Court of Appeals that the difference between hearing violin sounds move around the room and hearing them wander back and forth fits easily within the breathing space that gives life to the First Amendment. We Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

C

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Minton delivered the opinion of the Court. The question we have here is whether respondent William I. Connelly, hereafter referred to as the taxpayer, is entitled to the $1,500 exclusion from gross income provided by § 22 (b) (13) (A) of the Internal Revenue Code. The taxpayer claimed this additional allowance for the taxable years 1943 and 1944. The Commissioner disallowed the sum deducted. The Tax Court sustained the Commissioner, 8 T. C. 848, and the Court of Appeals reversed, one judge dissenting. 84 U. S. App. D. C. 260, 172 F. 2d 877. We granted certiorari. 337 U. S. 924. On February 19, 1943, taxpayer was a civil service employee in the legal division of the Coast Guard. On that date he was enrolled as a lieutenant commander within one of the six classifications which constituted the temporary members of the Coast Guard Reserve. His enrollment was under authority of the Coast Guard Auxiliary and Reserve Act which provided for the enrolling of “persons (including Government employees without pay other than the compensation of their civilian positions).” 55 Stat. 12, as amended, 56 Stat. 1021, 14 U. S. C. § 307. On April 24, 1944, he was reenrolled as a commander and his class was described as “Coast Guard Civil Service Employees.” After enrollment taxpayer performed duties identical with those which he had previously performed. At the time he was enrolled, his civil service rating was P-5. Later this rating was raised to P-6 and his rank was increased at the same time to that of commander. He received the same pay after enrollment that he had received as a civil service employee. He received overtime pay as a civil service employee, deductions were made from his pay for civil service retirement, and he was subject to civil service regulations as to annual and sick leave. If he had been injured or killed, he would have received benefits as a civil employee of the United States. He was still subject to the Selective Training and Service Act. In the case of sickness or disease contracted while on active duty, taxpayer was entitled to the same hospital and medical care as members of the regular Coast Guard, but dental care was not included. While on active duty he was required to wear the uniform of and he received the courtesies due his rank. He was subject to the laws, regulations and orders of the Coast Guard and to disciplinary action. It is apparent that taxpayer had a dual status. He had a limited military status with the rank of lieutenant commander and later that of commander. He had also the status of a civil service employee, carefully so limited and with all the privileges incident to such status. He was given just enough military status to enable him effectively to carry out his duties. All considerations of an economic character pertaining to his employment by the Government were related to his civil service status. In Mitchell v. Cohen, 333 U. S. 411, we held that one employed in a department of the Federal Government as a civil service employee who was enrolled temporarily in the Volunteer Port Security Force of the Coast Guard Reserve and who worked part-time as a reservist without pay was not an “ex-serviceman” within the meaning of the Veterans’ Preference Act. Looking to the legislative history of that statute, we found that the over-shadowing purpose of the Act was to favor those who had a real record of military service. The Court of Appeals found in this case that by the application of “long-established criteria — oath of office, military duty, and subjection to military discipline” taxpayer had acquired a military status and was thus entitled to the exclusion. We agree that he had a military status for some purposes. But the question for tax purposes is whether he received his pay in that status. To come within § 22 (b)(13)(A), he must have received his compensation “for active service as a commissioned officer.” We understand this to mean that if taxpayer received his pay as a commissioned officer, he would be entitled to the exclusion. It seems equally plain that if he received his pay as a civil service employee and served without military pay and allowances, he is not entitled to the claimed exclusion. As in the Cohen case, the emphasis of the statute is on a military and not on a civilian status. And it is clear that taxpayer received his compensation in a civilian status. As noted, § 307 of the Coast Guard Auxiliary and Reserve Act provided for the enrolling of “persons (including Government employees without pay other than the compensation of their civilian positions).” The Committee on Merchant Marine and Fisheries referred to the amendment by which the parenthetical phrase was added to the statute as being “advisable to clarify this authority [enrollment of temporary members without the pay of their military rank] and resolve any doubt of its applicability to Government employees by specifically providing for temporary membership in the Coast Guard Reserve of Government employees without military pay but with continuance in their civilian positions and the receipt of the compensation thereof.” From the date of the enactment of the enrollment statute there seems to have been no deviation from the view that the taxpayer was to be paid as a civil service employee and not as a commissioned officer. His pay came from congressional appropriations allocated to civilian positions. His pay was at the civil service scale for his grade, with overtime pay and appropriate deductions for civil service retirement. His continuing civilian status is underlined by his receipt of a civil service promotion, from which his military promotion resulted. Indeed, the taxpayer’s certificate of disenrollment described the duty performed as “Chief of Admiralty and Maritime Section having civil service status, receiving civilian but no military pay, and holding rank of Commander as a Temporary Member of the Coast Guard Reserve.” The Court of Appeals ignored the status in which taxpayer was compensated and gave effect to his military status which was provided only to facilitate the performance of his duties in wartime. Taxpayer’s rank was for the purpose of getting the job done, and not for the purpose of receiving compensation. The judgment of the Court of Appeals is Reversed. Mr. Justice Frankfurter and Mr. Justice Douglas took no part in the consideration or decision of this case. As amended by Revenue Act of 1945, § 141 (a), 59 Stat. 571: “(13) Additional allowance for military and naval personnel.— “ (A) In the case of compensation received ... for active service as a commissioned officer ... in the military or naval forces of the United States ... so much of such compensation as does not exceed $1,500.” These classifications and the organization of the Coast Guard Reserve are detailed in Mitchell v. Cohen, 333 U. S. 411, 412-14. See Judge Edgerton, dissenting in part, below: “. . .1 would be unable, in view of the rule that tax exemptions are strictly construed, to say that the compensation of a man who did not receive a commissioned officer’s pay but served ‘without pay other than the compensation of [his] civilian positions’ was ‘received ... for active service as a commissioned officer.’ ” 84 U. S. App. D. C. at 263, 172 F. 2d at 880. H. R. Rep. No. 2525, 77th Cong., 2d Sess., 3 (1942). The Committee added that the amendment “would obviate any possible impairment of the right of such employees to continue to receive the compensation of their civilian positions for the entire period of their performance of active Coast Guard duty as such temporary members. There will be little, if any, change in the nature of their duties after enrollment.” Office Memorandum No. 13-43 issued by the Commandant of the Coast Guard on July 24,1943, states: “6. The attention of heads of offices and chiefs of divisions is invited to the fact that one of the principal reasons for the induction of civil service employees into the military establishment as temporary members of the Reserve was to obtain a homogeneous organization on a military basis and to eliminate differences in procedure and practices applicable to military personnel and civil service personnel engaged on exactly the same duty . . . ." Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

L

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Scalia delivered the opinion of the Court. Respondents sued petitioners for allegedly targeting them for deportation because of their affiliation with a politically unpopular group. While their suit was pending, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009-546, which contains a provision restricting judicial review of the Attorney General’s "decision or action” to "commence proceedings, adjudicate eases, or execute removal orders against any alien under this Act.” 8 U. S. C. § 1252(g) (1994 ed., Supp. III). The issue before us is whether, as petitioners contend, this provision deprives the federal courts of jurisdiction over respondents’ suit. I The Immigration and Naturalization Service (INS), a division of the Department of Justice, instituted deportation proceedings in 1987 against Bashar Amer, Aiad Barakat, Julie Mungai, Amjad Obeid, Ayman Obeid, Naim Sharif, Khader Hamide, and Michel Shehadeh, all of whom belong to the Popular Front for the Liberation of Palestine (PFLP), a group that the Government characterizes as an international terrorist and communist organization. The INS charged all eight under the MeCarran-Walter Act, which, though now repealed, provided at the time for the deportation of aliens who “advocate... world communism.” See 8 U. S. C. §§ 1251(a)(6)(D), (G)(v), and (H) (1982 ed.). In addition, the INS charged the first six, who were only temporary residents, with routine status violations such as overstaying a visa and failure to maintain student status. See 8 U. S. C. §§ 1251(a)(2) and (a)(9) (1988 ed.). Almost immediately, the aliens filed suit in District Court, challenging the constitutionality of the anticommunism provisions of the MeCarran-Walter Act and seeking declaratory and injunctive relief against the Attorney General, the INS, and various immigration officials in their personal and official capacities. The INS responded by dropping the advocacy-of-communism charges, but it retained the technical violation charges against the six temporary residents and charged Hamide and Shehadeh, who were permanent residents, under a different section of the McCarran-Walter Act, which authorized the deportation of aliens who were members of an organization advocating “the duty, necessity, or propriety of the unlawful assaulting or killing of any [government] officer or officers” and “the unlawful damage, injury, or destruction of property.” See 8 U. S. C. §§ 1251(a)(6)(F)(ii)-(iii) (1982 ed.). INS regional counsel William Odenerantz said at a press conference that the charges had been changed for tactical reasons but the INS was still seeking respondents’ deportation because of their affiliation with the PFLP. See American-Arab Anti-Discrimination Committee v. Reno, 70 F. 3d 1045, 1053 (CA9 1995) (AADC I). Respondents amended their complaint to include an allegation that the INS was selectively enforcing immigration laws against them in violation of their First and Fifth Amendment rights. Since this suit seeking to prevent the initiation of deportation proceedings was filed — in 1987, during the administration of Attorney General Edwin Meese — it has made four trips through the District Court for the Central District of California and the United States Court of Appeals for the Ninth Circuit. The first two concerned jurisdictional issues not now before us. See Hamide v. United States District Court, No. 87-7249 (CA9, Feb. 24, 1988); American-Arab Anti-Discrimination Committee v. Thornburgh, 970 F. 2d 501 (CA9 1991). Then, in 1994, the District Court preliminarily enjoined deportation proceedings against the six temporary residents, holding that they were likely to prove that the INS did not enforce routine status requirements against immigrants who were not members of disfavored terrorist groups and that the possibility of deportation, combined with the chill to their First Amendment rights while the proceedings were pending, constituted irreparable injury. With regard to Hamide and Shehadeh’s claims, however, the District Court granted summary judgment to the federal parties for reasons not pertinent here. AADC I, supra, was the Ninth Circuit’s first merits determination in this case, upholding the injunction as to the six and reversing the District Court with regard to Hamide and Shehadeh. The opinion rejected the Attorney General’s argument that selective-enforcement claims are inappropriate in the immigration context, and her alternative argument that the special statutory-review provision of the Immigration and Nationality Act (INA), 8 U. S. C. § 1105a, precluded review of such a claim until a deportation order issued. See 70 F. Bd, at 1056-1057. The Ninth Circuit remanded the case to the District Court, whieh entered an injunction in favor of Hamide and Shehadeh and denied the Attorney General’s request that the existing injunction be dissolved in light of new evidence that all respondents participated in fundraising activities of the PFLP. While the Attorney General’s appeal of this last decision was pending, Congress passed IIRIRA which, inter alia, repealed the old judicial-review scheme set forth in § 1105a and instituted a new (and significantly more restrictive) one in 8 U. S. C. § 1252. The Attorney General filed motions in both the District Court and Court of Appeals, arguing that § 1252(g) deprived them of jurisdiction over respondents’ selective-enforcement claim. The District Court denied the motion, and the Attorney General’s appeal from that denial was consolidated with the appeal already pending in the Ninth Circuit. It is the judgment and opinion in that appeal which is before us here: 119 F. 3d 1367 (CA9 1997). It affirmed the existence of jurisdiction under § 1252, see id., at 1374, and reaching the merits of the injunctions, again affirmed the District Court, id., at 1374-1376. The Attorney General’s petition for rehearing en banc was denied over the dissent of three judges, 132 F. 3d 531 (CA9 1997). The Attorney General sought our review, and we granted certiorari, 524 U. S. 903 (1998). II Before enactment of IIRIRA, judicial review of most administrative action under the INA was governed by 8 U. S. C. § 1105a, a special statutory-review provision directing that "the sole and exclusive procedure for... the judicial review of all final orders of deportation” shall be that set forth in the Hobbs Act, 28 U. S. C. §2341 et seq., which gives exclusive jurisdiction to the courts of appeals, see §2342. Much of the Court of Appeals’ analysis in AADC I was devoted to the question whether this pre-IIRIRA provision applied to selective-enforcement claims. Since neither the Immigration Judge nor the Board of Immigration Appeals has authority to hear such claims (a point conceded by the Attorney General in AADC I, see 70 F. 3d, at 1055), a challenge to a final order of deportation based upon such a claim would arrive in the court of appeals without the factual development necessary for decision. The Attorney General argued unsuccessfully below that the Hobbs Act permits a court of appeals to remand the ease to the agency, see 28 U. S. C. § 2347(e), or transfer it to a district court, see § 2347(b)(3), for further factfinding. The Ninth Circuit, believing these options unavailable, concluded that an original district-court action was respondents’ only means of obtaining factual development and thus judicial review of their selective-enforcement claims. Relying on our decision in Cheng Fan Kwok v. INS, 392 U. S. 206 (1968), it held that the District Court could entertain the suit under either its general federal-question jurisdiction, see 28 U. S. C. § 1331, or the general jurisdictional provision of the INA, see 8 U. S. C. § 1329. Whether we must delve further into the details of this issue depends upon whether, after the enactment of IIRIRA, § 1105a continues to apply to this ease. On the surface of things, at least, it does not. Although the general rule set forth in § 309(c)(1) of IIRIRA is that the revised procedures for removing aliens, including the judicial-review procedures of § 1252, do not apply to aliens who were already in either exclusion or deportation proceedings on IIRIRA’s effective date, see note following 8 U. S. C. § 1101 (1994 ed., Supp. Ill), § 306(c)(1) of IIRIRA directs that a single provision, § 1252(g), shall apply "without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings.” See note following 8 U. S. C. § 1252 (1994 ed., Supp. III). Section 1252(g) reads as follows: "(g) Exclusive Jurisdiction "Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act.” This provision seemingly governs here, depriving the federal courts of jurisdiction “[ejxcept as provided in this section.” But whether it is as straightforward as that depends upon the scope of the quoted text. Here, and in the courts below, both petitioners and respondents have treated § 1252(g) as covering all or nearly all deportation claims. The Attorney General has characterized it as “a channeling provision, requiring aliens to bring all deportation-related claims in the context of a petition for review of a final order of deportation filed in the court of appeals.” Supplemental Brief for Appellants in No. 96-55929 (GA9), p. 2. Respondents have described it as applying to “most of what INS does.” Corrected Supplemental Brief for Appellees in No. 96-55929 (CA9), p. 7. This broad understanding of § 1252(g), combined with IIRIRA’s effective-date provisions, creates an interpretive anomaly. If the jurisdiction-excluding provision of § 1252(g) eliminates other sources of jurisdiction in all deportation-related cases, and if the phrase in § 1252(g) “[ejxeept as provided in this section” incorporates (as one would suppose) all the other jurisdiction-related provisions of § 1252, then § 309(c)(1) would be rendered a virtual nullity. To say that there is no jurisdiction in pending INS cases “except as” § 1252 provides jurisdiction is simply to say that § 1252’s jurisdictional limitations apply to pending cases as well as future cases — which seems hardly what § 309(c)(1) is about. If, on the other hand, the phrase “[except as provided in this section” were (somehow) interpreted not to incorporate the other jurisdictional provisions of § 1252 — if § 1252(g) stood alone, so to speak — judicial review would be foreclosed for all deportation claims in all pending deportation cases, even after entry of a final order. The Attorney General would have us avoid the horns of this dilemma by interpreting § 1252(g)’s phrase “[ejxeept as provided in this section” to mean “except as provided in § 1105a.” Because § 1105a authorizes review of only final orders, respondents must, she says, wait until their administrative proceedings come to a close and then seek review in a court of appeals. (For reasons mentioned above, the Attorney General of course rejects the Ninth Circuit’s position in AADCI that application of § 1105a would leave respondents without a judicial forum because evidence of selective prosecution cannot be introduced into the administrative record.) The obvious difficulty with the Attorney General’s interpretation is that it is impossible to understand how the qualifier in § 1252(g), “[ejxeept as provided in this section” (emphasis added), can possibly mean “except as provided in § 1105a.” And indeed the Attorney General makes no attempt to explain how this can be, except to observe that what she calls a “literal application” of the statute “would create an anomalous result.” Brief for Petitioners 30, n. 15. Respondents note this deficiency, but offer an equally implausible means of avoiding the dilemma. Section 309(c)(3) allows the Attorney General to terminate pending deportation proceedings and reinitiate them under §1252. They argue that § 1252(g) applies only to those pending cases in which the Attorney General has made that election. That way, they claim, the phrase “[ejxeept as provided in this section” can, without producing an anomalous result, be allowed to refer (as it says) to all the rest of § 1252. But this approach collides head-on with §306(c)’s prescription that § 1252(g) shall apply “without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings.” See note following 8 U. S. C. § 1252 (1994 ed., Supp. Ill) (emphasis added). (Respondents argue in the alternative, of course, that if the Attorney General is right and § 1105a does apply, A ADC I is correct that their claims will be effectively unreviewable upon entry of a final order. For this reason, and because they say that habeas review, if still available after IIRIRA, will come too late to remedy this First Amendment injury, respondents contend that we must construe § 1252(g) not to bar constitutional claims.) The Ninth Circuit, for its part, accepted the parties' broad reading of § 1252(g) and concluded, reasonably enough, that on that reading Congress could not have meant § 1252(g) to stand alone: “Divorced from all other jurisdictional provisions of IIRIRA, subsection (g) would have a more sweeping impact on cases filed before the statute’s enactment than after that date. Without incorporating any exceptions, the provision appears to cut off federal jurisdiction over all deportation decisions. We do not think that Congress intended such an absurd result.” 119 F. 3d, at 1372. It recognized, however, the existence of the other horn of the dilemma (“that retroactive application of the entire amended version of 8 U. S. C. § 1252 would threaten to render meaningless section 306(c) of IIRIRA,” ibid.), and resolved the difficulty to its satisfaction by concluding that “at least some of the other provisions of section 1252” must be included in subsection (g) “when it applies to pending cases.” Ibid, (emphasis added). One of those provisions, it thought, must be subsection (f), entitled “Limit on Injunctive Relief,” which reads as follows: “Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of chapter 4 of title II, as amended by [IIRIRA], other than with respect to the application of such provisions to an individual alien against whom proceedings under such chapter have been initiated.” The Ninth Circuit found in this an affirmative grant of jurisdiction that covered the present ease. The Attorney General argued that any such grant of jurisdiction would be limited (and rendered inapplicable to this case) by § 1252(b)(9), which provides: “Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this chapter shall be available only in judicial review of a final order under this section.” The Ninth Circuit replied that, even if § 1252(b)(9) were one of those provisions incorporated into the transitional application of § 1252(g), it could not preclude this suit for the same reason A ADC I had held that § 1105a could not do so— namely, the Court of Appeals’ lack of access to factual findings regarding selective enforcement. Even respondents scarcely try to defend the Ninth Circuit’s reading of § 1252(f) as a jurisdictional grant. By its plain terms, and even by its title, that provision is nothing more or less than a limit on injunctive relief. It prohibits federal courts from granting classwide injunctive relief against the operation of §§ 1221-1231, but specifies that this ban does not extend to individual cases. To find in this an affirmative grant of jurisdiction is to go beyond what the language will bear. We think the seeming anomaly that prompted the parties’ strained readings of § 1252(g) — and that at least accompanied the Court of Appeals’ strained reading — -is a mirage. The parties’ interpretive acrobatics flow from the belief that § 306(c)(1) cannot be read to envision a straightforward application of the “[ejxcept as provided in this section” portion of § 1252(g), since that would produce in all pending INS cases jurisdictional restrictions identical to those that were contained in IIRIRA anyway. That belief, however, rests on the unexamined assumption that § 1252(g) covers the universe of deportation claims — that it is a sort of “zipper” clause that says “no judicial review in deportation cases unless this section provides judicial review.” In fact, what § 1252(g) says is much narrower. The provision applies only to three discrete actions that the Attorney General may take: her “decision or action” to “commence proceedings, adjudicate cases, or execute removal orders.” (Emphasis added.) There are of course many other decisions or actions that may be part of the deportation process — such as the decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order. It is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings. Not because Congress is too unpoetie to use synecdoche, but because that literary device is incompatible with the need for precision in legislative drafting. We are aware of no other instance in the United States Code in which language such as this has been used to impose a general jurisdictional limitation; and that those who enacted IIRIRA were familiar with the normal manner of imposing such a limitation is demonstrated by the text of § 1252(b)(9), which stands in stark contrast to § 1252(g). It could be argued, perhaps, that § 1252(g) is redundant if it channels judicial review of only some decisions and actions, since § 1252(b)(9) channels judicial review of all of them anyway. But that is not so, since only § 1252(g), and not § 1252(b)(9) (except to the extent it is incorporated within § 1252(g)), applies to what § 309(e)(1) calls “transitional eases,” that is, eases pending on the effective date of IIRIRA. That alone justifies its existence. It performs the function of categorically excluding from non-final-order judicial review — even as to transitional cases otherwise governed by § 1105a rather than the unmistakable “zipper” clause of § 1252(b)(9) — certain specified decisions and actions of the INS. In addition, even after all the transitional cases have passed through the system, § 1252(g) as we interpret it serves the continuing function of making it clear that those specified decisions and actions, which (as we shall discuss in detail below) some courts had held not to be included within the non-final-order review prohibition of § 1105a, are covered by the “zipper” clause of § 1252(b)(9). It is rather the Court of Appeals’ and the parties’ interpretation which renders § 1252(g) entirely redundant, adding to one “zipper” clause that does not apply to transitional eases, another one of equal scope that does apply to transitional eases. That makes it entirely inexplicable why the transitional provisions of § 306(c) refer to § 1252(g) instead of § 1252(b)(9) — and why § 1252(g) exists at all. There was good reason for Congress to focus special attention upon, and make special provision for, judicial review of the Attorney General’s discrete acts of “commencing] proceedings, adjudicating] cases, [and] executing] removal orders” — which represent the initiation or prosecution of various stages in the deportation process. At each stage the Executive has discretion to abandon the endeavor, and at the time IIRIRA was enacted the INS had been engaging in a regular practice (which had come to be known as “deferred action”) of exercising that discretion for humanitarian reasons or simply for its own convenience. As one treatise describes it: “To ameliorate a harsh and unjust outcome, the INS may decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation. This commendable exercise in administrative discretion, developed without express statutory authorization, originally was known as nonpriority and is now designated as deferred action. A ease may be selected for deferred action treatment at any stage of the administrative process. Approval of deferred action status means that, for the humanitarian reasons described below, no action will thereafter be taken to proceed against an apparently deportable alien, even on grounds normally regarded as aggravated.” 6 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure §72.03[2][h] (1998). See also Johns v. Department of Justice, 653 F. 2d 884, 890-892 (CA5 1981). Since no generous act goes unpunished, however, the INS’s exercise of this discretion opened the door to litigation in instances where the INS chose not to exercise it. “[I]n each such instance, the determination to withhold or terminate deportation is confined to administrative discretion.... Efforts to challenge the refusal to exercise such discretion on behalf of specific aliens sometimes have been favorably considered by the courts, upon contentions that there was selective prosecution in violation of equal protection or due process, such as improper reliance on political considerations, on racial, religious, or nationality discriminations, on arbitrary or unconstitutional criteria, or on other grounds constituting abuse of discretion.” Gordon, Mailman, & Yale-Loehr, supra, § 72.03[2][a] (footnotes omitted). Such litigation was possible because courts read §1105a,s prescription that the Hobbs Act shall be “the sole and exclusive procedure for the judicial review of all final orders of deportation” to be inapplicable to various decisions and actions leading up to or consequent upon final orders of deportation, and relied on other jurisdictional statutes to permit review. See, e. g., Cheng Fan Kwok v. INS, 392 U. S. 206 (1968) (review of refusal to stay deportation); Ramallo v. Reno, Civ. No. 95-01851 (D. D. C., July 23, 1996) (review of execution of removal order), described in and rev’d on other grounds, 114 F. 3d 1210 (CADC 1997); AADC I, 70 F. 3d 1045 (CA9 1995) (review of commencement of deportation proceedings); Lennon v. INS, 527 F. 2d 187, 195 (CA2 1975) (same, dicta). Section 1252(g) seems clearly designed to give some measure of protection to “no deferred action” decisions and similar discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside the streamlined process that Congress has designed. Of course many provisions of IIRIRA are aimed at protecting the Executive’s discretion from the courts — indeed, that can fairly be said to be the theme of the legislation. See, e. g., 8 U. S. C. § 1252(a)(2)(A) (limiting review of any claim arising from the inspection of aliens arriving in the United States); § 1252(a)(2)(B) (barring review of denials of discretionary relief authorized by various statutory provisions); § 1252(a)(2)(C) (barring review of final removal orders against criminal aliens); § 1252(b)(4)(D) (limiting review of asylum determinations for resident aliens). It is entirely understandable, however, why Congress would want only the discretion-protecting provision of § 1252(g) applied even to pending cases: because that provision is specifically directed at the deconstruction, fragmentation, and hence prolongation of removal proceedings. Our narrow reading of § 1252(g) makes sense of the statutory scheme as a whole, for it resolves the supposed tension between § 306(c)(1) and § 809(c)(1). In cases to which § 1252(g) applies, the rest of § 1252 is incorporated through the “[e]xcept as provided in this section” clause. This incorporation does not swallow §309(c)(l)’s general rule that §§ 1252(a)-(f) do not apply to pending cases, for § 1252(g) applies to only a limited subset of deportation claims. Yet it is also faithful to § 306(e)(l)’s command that § 1252(g) be applied “without limitation” (i. e., including the “[e]xeept as provided” clause) to "claims arising from all past, pending, or future exclusion, deportation, or removal proceedings.” Respondents’ challenge to the Attorney General’s decision to “commence proceedings” against them falls squarely within § 1252(g) — -indeed, as we have discussed, the language seems to have been crafted with such a challenge precisely in mind — and nothing elsewhere in § 1252 provides for jurisdiction. Gf. § 1252(a)(1) (review of final orders); § 1252(e)(2) (limited habeas review for excluded aliens); § 1252(e)(3)(A) (limited review of statutes and regulations pertaining to the exclusion of aliens). As we concluded earlier, § 1252(f) plainly serves as a limit on injunctive relief rather than a jurisdictional grant. Ill Finally, we must address respondents’ contention that, since the lack of prior factual development for their claim will render the § 1252(a)(1) exception to § 1252(g) unavailing; since habeas relief will also be unavailable; and since even if one or both were available they would come too late to prevent the “chilling effect” upon their First Amendment rights; the doctrine of constitutional doubt requires us to interpret § 1252(g) in such fashion as to permit immediate review of their selective-enforcement claims. We do not believe that the doctrine of constitutional doubt has any application here. As a general matter — and assuredly in the context of claims such as those put forward in the present case — an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation. Even in the criminal-law field, a selective prosecution claim is a rara avis. Because such claims invade a special province of the Executive — its prosecutorial discretion — we have emphasized that the standard for proving them is particularly demanding, requiring a criminal defendant to introduce “clear evidence” displacing the presumption that a prosecutor has acted lawfully. United States v. Armstrong, 517 U. S. 456, 463-465 (1996). We have said: “This broad discretion [afforded the Executive] rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution's general deterrence value, the Government’s enforcement priorities, and the ease’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy. All of these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute.” Wayte v. United States, 470 U. S. 598, 607-608 (1985). These concerns are greatly magnified in the deportation context. Regarding, for example, the potential for delay: Whereas in criminal proceedings the consequence of delay is merely to postpone the criminal’s receipt of his just deserts, in deportation proceedings the consequence is to permit and prolong a continuing violation of United States law. Postponing justifiable deportation (in the hope that the alien’s status will change — by, for example, marriage to an American citizen — or simply with the object of extending the alien’s unlawful stay) is often the principal object of resistance to a deportation proceeding, and the additional obstacle of selective-enforcement suits could leave the INS hard pressed to enforce routine status requirements. And as for “chill[ing] law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry”: What will be involved in deportation cases is not merely the disclosure of normal domestic law enforcement priorities and tech-ñiques, but often the disclosure of foreign-policy objectives and (as in this case) foreign-intelligence products and techniques. The Executive should not have to disclose its “real” reasons for deeming nationals of a particular country a special threat — or indeed for simply wishing to antagonize a particular foreign country by focusing on that country’s nationals — and even if it did disclose them a court would be ill equipped to determine their authenticity and utterly unable to assess their adequacy. Moreover, the consideration on the other side of the ledger in deportation cases — the interest of the target in avoiding “selective” treatment — is less compelling than in criminal prosecutions. While the consequences of deportation may assuredly be grave, they are not imposed as a punishment, see Carlson v. Landon, 342 U. S. 524, 537 (1952). In many cases (for six of the eight aliens here) deportation is sought simply because the time of permitted residence in this country has expired, or the activity for which residence was permitted has been completed. Even when deportation is sought because of some act the alien has committed, in principle the alien is not being punished for that act (criminal charges may be available for that separate purpose) but is merely being held to the terms under which he was admitted. And in all cases, deportation is necessary in order to bring to an end an ongoing violation of United States law. The contention that a violation must be allowed to continue because it has been improperly selected is not powerfully appealing. To resolve the present controversy, we need not rule out the possibility of a rare ease in which the alleged basis of discrimination is so outrageous that the foregoing considerations can be overcome. Whether or not there be such exceptions, the general rule certainly applies here. When an alien’s continuing presence in this country is in violation of the immigration laws, the Government does not offend the Constitution by deporting him for the additional reason that it believes him to be a member of an organization that supports terrorist activity. * * * Because 8 U. S. C. § 1252(g) deprives the federal courts of jurisdiction over respondents’ claims, we vacate the judgment of the Ninth Circuit and remand with instructions for it to vacate the judgment of the District Court. It is so ordered. Justice Breyer joins Parts I and II of this opinion. Respondents Barakat and Sharif were subsequently granted legalization and are no longer deportable based on the original status violations. Brief for Petitioners 11, n. 5. When the MeCarran-Walter Aet was repealed, a new “terrorist activity” provision was added by the Immigration Act of 1990. See 8 U. S. C. § 1227(a)(4)(B) (1994 ed., Supp. III). The INS charged Hamide and She-hadeh tmder this, but it is unclear whether that was in addition to, or in substitution for, the old McCarran-Walter charges. and for The amended complaint was styled as an action for “damages and for declaratory and injunctive relief,” but the only monetary relief specifically requested was “costs of suit and attorneys fees.” App. 20, 51. This latter provision was subsequently amended by IIRIRA to make clear that it applies only to actions brought by the United States. See 8 U. S. C. § 1329 (1994 ed., Supp. III). Section 309(c)(1) provides: “(c) Transition for Aliens in Proceedings.— “(1) General rule that new rules do not apply. — Subject to the succeeding provisions of this subsection [§309(a) carves out § 306(c) as an exception], in the case of an alien who is in exclusion or deportation proceedings as of the title III-A effective date— “(A) the amendments made by this subtitle shall not apply, and “(B) the proceedings (including judicial review thereof) shall continue to be conducted without regard to such amendments.” 110 Stat. 3009-625. It is undear why the Attorney General has not exercised this option in this case. Respondents have taken the position that the District Court’s injunction prevents her from doing so. Brief for Respondents 41, n. 38. There is disagreement on this point in the Courts of Appeals. Compare Hose v. INS, 141 F. 3d 932, 935 (CA9) (habeas not available), withdrawn and reh’g en banc granted, 161 F. 3d 1225 (1998), Richardson v. Reno, 162 F. 3d 1338 (CA11 1998) (same), and Yang v. INS, 109 F. 3d 1185, 1195 (CA7 1997) (same), with Goncalves v. Reno, 144 F. 3d 110, 122 (CA1 1998) (habeas available), and Henderson v. INS, 157 F. 3d 106, 117-122 (CA2 1998) (same). See also Magana-Pizano v. INS, 152 F. 3d 1213, 1220 (CA9 1998) (elimination of habeas unconstitutional); Ramallo v. Reno, 114 F. 3d 1210, 1214 (CADC 1997) (§ 1252(g) removes statutory habeas but leaves “constitutional” habeas intact). Prior to 1997, deferred-action decisions were governed by internal INS guidelines which considered, inter alia, such factors as the likelihood of ultimately removing the alien, the presence of sympathetic factors that could adversely affect future cases or generate bad publicity for the INS, and whether the alien had violated a provision that had been given high enforcement priority. See 16 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure §242.1 (1998). These were apparently rescinded on June 27, 1997 Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Black delivered the opinion of the Court. Pennsylvania law provides that “any real or personal property within or subject to the control of this Commonwealth . . . shall escheat to the Commonwealth” whenever it “shall be without a rightful or lawful owner,” “remain unclaimed for the period of seven successive years” or “the whereabouts of such owner . . . shall be and remain unknown for the period of seven successive years.” These proceedings were begun under that law in a Pennsylvania state court to escheat certain obligations of the Western Union Telegraph Company — alleged to be “property within” Pennsylvania — to pay sums of money owing to various people who had left the monies unclaimed for more than seven years and whose whereabouts were unknown. The facts were stipulated. Western Union is a corporation chartered under New York law with its principal place of business in that State. It also does business and has offices in all the other States except Alaska and Hawaii, in the District of Columbia, and in foreign countries, and was from 1916 to 1934 subject to regulation by the I. C. C. and since then by the F. C. C. In addition to sending telegraphic messages throughout its world-wide system, it carries on a telegraphic money order business which commonly works like this. A sender goes to a Western Union office, fills out an application and gives it to the company clerk who waits on him together with the money to be sent and the charges for sending it. A receipt is given the sender and a telegraph message is transmitted to the company’s office nearest to the payee directing that office to pay the money order to the payee. The payee is then notified and upon properly identifying himself is given a negotiable draft, which he can either endorse and cash at once or keep for use in the future. If the payee cannot be located for delivery of the notice, or fails to call for the draft within 72 hours, the office of destination notifies the sending-office. This office then notifies the original sender of the failure to deliver and makes a refund, as it makes payments to payees, by way of a negotiable draft which may be either cashed immediately or kept for use in the future. In the thousands of money order transactions carried on by the company, it sometimes happens that it can neither make payment to the payee nor make a refund to the sender. Similarly payees and senders who accept drafts as payment or refund sometimes fail to cash them. For this reason large sums of money due from Western Union for undelivered money orders and unpaid drafts accumulate over the years in the company’s offices and bank accounts throughout the country. It is an accumulation of this kind that Pennsylvania seeks to escheat here — specifically, the amount of undisbursed money held by Western Union arising out of money orders bought in Pennsylvania offices to be transmitted to payees in Pennsylvania and other States, chiefly other States. Western Union, while not claiming these monies for itself, challenged Pennsylvania’s right to take ownership of them for itself. Among other grounds the company urged that a judgment of escheat for Pennsylvania in its courts would not protect the company from multiple liability either in Pennsylvania or in other States. Its argument in this respect was that senders of money orders and holders of drafts would not be bound by the Pennsylvania judgment because the service by publication did not, for two reasons, give the state court jurisdiction: (1) that under the doctrine of Pennoyer v. Neff, 95 U. S. 714, the presence of property, called a “res,” within the State is a prerequisite for service by publication and that these obligations did not constitute such property within Pennsylvania, and (2) that the notice by publication given in this case did not give sufficient information or afford sufficient likelihood of actual notice to meet due process requirements. In addition, Western Union urged that there might be escheats claimed by other States which would not be bound by the Pennsylvania judgment because they were not and could not be made parties to this Pennsylvania proceeding. Western Union’s apprehensions that other States might later escheat the same funds were buttressed by the Pennsylvania court’s finding that New York had already seized and escheated a part of the very funds here claimed by Pennsylvania. With reference to this the Pennsylvania Court of Common Pleas said: “We take this opportunity of stating that we do not recognize New York’s authority to escheat that money, but since it has been done we have no jurisdiction over this sum.” 73 Dauphin County Rep. 160, 173. Both the Pennsylvania trial court and the State Supreme Court rejected the contentions of Western Union and declared the unclaimed obligations escheated. 73 Dauphin County Rep. 160; 74 Dauphin County Rep. 49; 400 Pa. 337, 162 A. 2d 617. Since the record showed substantial questions as to the jurisdiction of the Pennsylvania courts over the individual owners of the unclaimed monies and as to the power of the State of Pennsylvania to enter a binding judgment that would protect Western Union against subsequent liability to other States, we noted probable jurisdiction. 365 U. S. 801. We find it unnecessary to decide any of Western Union’s contentions as to the adequacy of notice to and validity of service on the individual claimants by publication. For as we view these proceedings, there is a far more important question raised by this record — whether Pennsylvania had power at all to render a judgment of escheat which would bar New York or any other State from escheating this same property. Pennsylvania does not claim and could not claim that the same debts or demands could be escheated by two States. See Standard Oil Co. v. New Jersey, 341 U. S. 428, 443. And our prior opinions have recognized that when a state court’s jurisdiction purports to be based, as here, on the presence of property within the State, the holder of such property is deprived of due process of law if he is compelled to relinquish it without assurance that he will not be held liable again in another jurisdiction or in a suit brought by a claimant who is not bound by the first judgment. Anderson National Bank v. Luckett, 321 U. S. 233, 242-243; Security Savings Bank v. California, 263 U. S. 282, 286-290. Applying that principle, there can be no doubt that Western Union has been denied due process by the Pennsylvania judgment here unless the Pennsylvania courts had power to protect Western Union from any other claim, including the claim of the State of New York that these obligations are property “within” New York and are therefore subject to escheat under its laws. But New York was not a party to this proceeding and could not have been made a party, and, of course, New York’s claims could not be cüt off where New York was not heard as a party. Moreover, the potential multi-state claims to the “property” which is the subject of this escheat make it not unlikely that various States will claim in rem jurisdiction over it. Therefore, Western Union was not protected by the Pennsylvania judgment, for a state court judgment need not be given full faith and credit by other States as to parties or property not subject to the jurisdiction of the court that rendered it. Pennoyer v. Neff, 95 U. S. 714; Riley v. New York Trust Co., 315 U. S. 343. It is true that, on the facts there presented, this Court said in Standard Oil Co. v. New Jersey, 341 U. S. 428, 443, that “The debts or demands . . . having been taken from the appellant company by a valid judgment of New Jersey, the same debts or demands against appellant [Standard Oil] cannot be taken by another state. The Full Faith and Credit Clause bars any such double escheat.” But the Court went on to point out that “The claim of no other state to this property is before us and, of course, determination of any right of a claimant state against New Jersey for the property escheated by New Jersey must await presentation here.” Here, unlike Standard Oil, there is in reality a controversy between States, possibly many of them, over the right to escheat part or all of these funds. The claims of New York are particularly aggressive, not merely potential, but actual, active and persistent— best shown by the fact that New York has already escheated part of the very funds originally claimed by Pennsylvania. These claims of New York were presented to us in both the brief and oral argument of that State as amicus curiae. In presenting its claims New York also called our attention to the potential claims of other States for escheat based on their contacts with the separate phases of the multi-state transactions out of which these unclaimed funds arose, including: the State of residence of the payee, the State of the sender, the State where the money order was delivered, and the State where the fiscal agent on which the money order was drawn is located. Arguments more than merely plausible can doubtless be made to support claims of all these and other States to escheat all or parts of all unclaimed funds held by Western Union. And the large area of the company's business makes it entirely possible that every State may now or later claim a right to participate in these funds. But even if, as seems unlikely, no other State will assert such a claim, the active controversy between New York and Pennsylvania is enough in itself to justify Western Union's contention that to require it to pay this money to Pennsylvania before New York has had its full day in court might force Western Union to pay a single debt more than once and thus take its property without due process of law. Our Constitution has wisely provided a way in which controversies between States can be settled without subjecting individuals and companies affected by those controversies to a deprivation of their right to due process of law. Article III, § 2 of the Constitution gives this Court original jurisdiction of cases in which a State is a party. The situation here is in all material respects like that which caused us to take jurisdiction in Texas v. Florida, 306 U. S. 398. There four States sought to collect death taxes out of an estate. The tax depended upon the domicile of the decedent, and this Court said that “By the law of each state a decedent can have only a single domicile for purposes of death taxes . . . .” Id., at 408. Thus, there was only one tax due to only one State. The estate was sufficient to pay the tax of any one State, but the total of the claims of the four States greatly exceeded the net value of the estate. Por this reason, as we said, the risk of loss to the State of domicile was real and substantial, unless we exercised our jurisdiction. Under these circumstances we exercised our original jurisdiction to avoid “the risk of loss ensuing from the demands in separate suits of rival claimants to the same debt or legal duty.” Id., at 405. The rival state claimants here, as in Texas v. Florida, can invoke our original jurisdiction. While we have previously decided some escheat cases where it was apparent that rival state claims were in the offing, we have not in any of them closed the door to the exercise of our jurisdiction. In Connecticut Mutual Life Ins. Co. v. Moore, 333 U. S. 541, we sustained the power of New York to take custody as a conservator of unclaimed funds due persons insured by that company through policies issued for delivery in New York to persons then resident in New York. In doing so we rejected an argument that the State of domicile of the insurance companies involved alone had jurisdiction to escheat. But there we were careful to point out that “The problem of what another State than New York may do is not before us. That question is not passed upon.” Id., at 548. Even though this reservation was made and New York only took custody of the funds, leaving the way clear for all claimants to bring action to recover them at any time, there were dissents urging that a way should be then found for the conflicting claims of States to be determined. Several years later a divided Court in Standard Oil Co. v. New Jersey, 341 U. S. 428, upheld the right of New Jersey to escheat certain unclaimed shares of stock and dividends due stockholders and employees of the Standard Oil Company. In that case New Jersey’s jurisdiction to escheat was rested, at least in part, on the fact that Standard Oil was a domiciliary of that State. Again, however, the Court justified its conclusion by saying as to claims of other States: “The claim of no other state to this property is before us and, of course, determination of any right of a claimant state against New Jersey for the property escheated by New Jersey must await presentation here.” Id., at 443. Later New York sought leave to file an original action here against New Jersey, alleging a controversy between the two States over jurisdiction to take custody of monies arising out of unclaimed travelers checks, outstanding for more than 15 years, issued by American Express Company, a joint stock company organized under New York law with its principal office in New York. Answering, New Jersey pointed out that under New York’s then controlling law it disclaimed any purpose to escheat property claimed for escheat by any other State. In this state of the New York law, we refused to take jurisdiction. 358 U. S. 924. By an act effective March 29, 1960, New York amended its law eliminating the disclaimer and now strongly asserts its claim to these funds under its new law. The rapidly multiplying state escheat laws, originally applying only to land and other tangible things but recently moving into the elusive and wide-ranging field of intangible transactions have presented problems of great importance to the States and persons whose rights will be adversely affected by escheats. This makes it imperative that controversies between different States over their right to escheat intangibles be settled in a forum where all the States that want to do so can present their claims for consideration and final, authoritative determination. Our Court has jurisdiction to do that. Whether and under what circumstances we will exercise our jurisdiction to hear and decide these controversies ourselves in particular cases, and whether we might under some circumstances refer them to United States District Courts, we need not now determine. Cf. Massachusetts v. Mis souri, 308 U. S. 1, 18-20. Nor need we, at this time, attempt to decide the difficult legal questions presented when many different States claim power to escheat intangibles involved in transactions taking place in part in many States. It will be time enough to consider those complicated problems when all interested States — along with all other claimants — can be afforded a full hearing and a final, authoritative determination. It is plain that Pennsylvania courts, with no power to bring other States before them, cannot give such hearings. They have not done so here; they have not attempted to do so. As a result, their judgments, which cannot, with the assurance that comes only from a full trial with all necessary parties present, protect Western Union from having to pay the same single obligation twice, cannot stand. When this situation developed, the Pennsylvania courts should have dismissed the case. Accordingly, the judgment of the Supreme Court of Pennsylvania is reversed, and the cause is remanded to that Court for further proceedings not inconsistent with this opinion. It is so ordered. Memorandum of Mr. Justice Stewart. The appellant is a New York corporation with its principal office in that State. The funds representing these unpaid money orders are located there. I think only New York has power to escheat the property involved in this case. Eor that reason, while disagreeing with the Court’s opinion, which for me creates more problems than it solves, I join in the judgment of reversal. Act of July 29, 1953, P. L. 986, § 1 (27 Purdon’s Statutes § 333). In its answer Western Union did claim these monies, but it has since abandoned this ground. McKinney’s N. Y. Laws, § 1309, Abandoned Property Law. N. Y. Laws 1960, c. 307. The magnitude of the problem involved is illustrated by the fact that, since 1946, at least 20 States have enacted legislation to bring or enlarge the coverage of intangible transactions under their escheat laws. Florida, 1961; Idaho, 1961; Illinois, 1961; Kentucky, 1960; Virginia, 1960; California, 1959; New Mexico, 1959; Louisiana, 1958; Oregon, 1957; Utah, 1957; Arizona, 1956; Washington, 1955; Pennsylvania, 1953; Massachusetts, 1950; Arkansas, 1949; Connecticut, 1949; New York, 1949; Michigan, 1947; North Carolina, 1947; New Jersey, 1946. Of these, 10 — Arizona, California, Florida, Idaho, Illinois, New Mexico, Oregon, Utah, Virginia, and Washington — have adopted in substance the Uniform Disposition of Unclaimed Property Act promulgated by the National Conference of Commissioners on Uniform State Laws in 1955. In addition legislation has been under consideration by other States. For discussion of this and a general description of the growing importance of these laws, see Ely, Escheats: Perils and Precautions, 15 Bus. Law. 791. The record in this very case shows that Massachusetts is laying claim to funds of Western Union on precisely the same ground that Pennsylvania asserted here, thus bringing Massachusetts into conflict with New York’s claims too. In Texas v. Florida, 306 U. S. 398, 405, we held that individual claimants “whose presence is necessary or proper for the determination of the case or controversy between the states are properly made parties . . . Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

D

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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Harlan delivered the opinion of the Court. This case involves the type of hearing to which an alien crewman is entitled on his claim that he would suffer persecution upon deportation to his native land. The Court of Appeals sustained the respondent crewman’s contention that he must be heard by a special inquiry officer in a proceeding conducted under § 242 (b) of the Immigration and Nationality Act. Petitioner, the Immigration and Naturalization Service, argues that respondent’s claim was properly heard and determined by a district director. We brought the case here, 393 U. S. 912 (1968), to resolve the conflict on this score between the decision below and that of the Court of Appeals for the Second Circuit in Kordic v. Esperdy, 386 F. 2d 232 (1967). I. Respondent, a national of Yugoslavia, was a crewman aboard the Yugoslav vessel, M/V Sumadija, when it docked at Coos Bay, Oregon, in late December 1964. He requested and was issued a “D-l” conditional landing permit, in accordance with 8 CFR §252.1 (d)(1) and §252 (a)(1) of the Immigration and Nationality Act. Under these provisions, the Service may allow a non-immigrant alien crewman temporary shore leave for “the period of time (not exceeding twenty-nine days) during which the vessel or aircraft on which he arrived remains in port, if the immigration officer is satisfied that the crewman intends to depart on the vessel or aircraft on which he arrived.” Ibid. On January 6, 1965, while on shore leave, respondent appeared at the Portland, Oregon, office of the Immigration and Naturalization Service. He claimed that he feared persecution upon return to Yugoslavia, and he flatly stated that he would not return to the M/V Sumadija. On the basis of the latter statement, and in accordance with § 252 (b) of the Act, the District Director revoked respondent’s landing permit. Section 252 (b) provides: “[A]ny immigration officer may, in his discretion, if he determines that an alien . . . does not intend to depart on the vessel or aircraft which brought him, revoke the conditional permit to land which was granted such crewman under the provisions of subsection (a)(1), take such crewman into custody, and require the master or commanding officer of the vessel or aircraft on which the crewman arrived to receive and detain him on board such vessel or aircraft, if practicable, and such crewman shall be deported from the United States at the expense of the transportation line which brought him to the United States. . . . Nothing in this section shall be construed to require the procedure prescribed in section 242 of this Act to [sic] cases falling within the provisions of this subsection.” Section 252 (b) makes no express exception for an alien whose deportation would subject him to persecution. However, § 243 (h) permits the Attorney General to withhold the deportation of any alien to a country in which he would be subject to persecution, and analogously, 8 CFR § 253.1 (e) then provided: “Any alien crewman . . . whose conditional landing permit issued under § 252.1 (d) (1) of this chapter is revoked who alleges that he cannot return to a Communist, Communist-dominated, or Communist-occupied country because of fear of persecution in that country on account of race, religion, or political opinion may be paroled into the United States . . . for the period of time and under the conditions set by the district director having jurisdiction over the area where the alien crewman is located.” Thus, although respondent was admittedly deportable under the terms of § 252 (b), he was not immediately returned to his vessel. On January 7, he was offered the opportunity to present evidence to the District Director in support of his claim of persecution. Respondent presented no evidence to the District Director. Rather, he contended that he had not been given sufficient time to prepare for the hearing, and he also argued that he was entitled to have his claim heard by a special inquiry officer in accordance with the general provisions of § 242 (b). The District Director ruled against respondent and, in the absence of any evidence of probable persecution, ordered him returned to the M/V Sumadija, which was then still in port. Respondent immediately sought relief in the United States District Court for the District of Oregon, which, without opinion, temporarily stayed his deportation and referred the matter back to the District Director for a hearing on the merits of respondent’s claim. On January 25, 1965, after a hearing at which respondent was represented by counsel and presented evidence, the District Director held that respondent “has [not] shown that he would be physically persecuted if he were to return to Yugoslavia.” Appendix 22. On respondent’s supplemental pleadings, the District Court held that the District Director’s findings were supported by the record. The court rejected respondent’s claim that he was entitled to a § 242 (b) hearing before a special inquiry officer, relying on the last sentence of § 252 (b), which provides: “Nothing in this section shall be construed to require the procedure prescribed in section 242 of this Act to cases falling within the provisions of this subsection.” Vucinic [and Stanisic] v. Immigration Service, 243 F. Supp. 113 (1965). Respondent did not appeal the District Court’s decision. Instead, in July 1965, he petitioned Congress for a private bill, pending action on which the Service stayed his deportation. Respondent’s effort proved unsuccessful, and on June 21, 1966, the Service ordered him to appear for deportation to Yugoslavia. The following day, respondent reasserted his claim of persecution before the Service, and requested that the matter be heard by a special inquiry officer pursuant to § 242. The Service, and subsequently the District Court, denied relief, both holding that this issue had previously been determined adversely to respondent. The Court of Appeals for the Ninth Circuit reversed, Stanisic v. Immigration Service, 393 F. 2d 539 (1968), holding that the matter was not res judicata because of a significant change of circumstances: the District Director’s adverse determination in 1965, and the District Court’s unappealed approval thereof, were based on the unstated premise that the M/V Sumadija was still in port; but now the ship had long since sailed, and respondent still had not been deported. The court held that § 252 (b) only authorized respondent’s “summary deportation aboard the vessel on which he arrived or, within a very limited time after that vessel’s departure, aboard another vessel pursuant to arrangements made before . . . [his] vessel departed.” 393 F. 2d, at 542-543. Since neither of these conditions was met, respondent could no longer be deported pursuant to the District Director’s 1965 determination; he was entitled to a de novo hearing before a special inquiry officer under § 242 (b) of the Act. II. At the outset, it is important to recognize the distinction between a determination whether an alien is statutorily deportable — something never contested by respondent — and a determination whether to grant political asylum to an otherwise properly deportable alien. Section 242 (b) provides a generally applicable procedure “for determining the deportability of an alien . . . .” Section 252 (b) provides a specific procedure for the deportation of alien crewmen holding D-l landing permits. Neither of these sections is concerned with the granting of asylum. Relief from persecution, on the other hand, is governed by §§212 (d)(5) and 243 (h). The former section authorizes the Attorney General, in his discretion, to “parole into the United States temporarily under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States . . . .” The latter authorizes the Attorney General “to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion and for such period of time as he deems to be necessary for such reason.” No statute prescribes by what delegate of the Attorney General, or pursuant to what procedure, relief shall be granted under these provisions. By regulation, the decision to grant parole pursuant to § 212 (d) (5) rests with a district director, 8 CFR §§ 212.5 (a), 253.2; and by regulation, the decision to withhold deportation of most aliens pursuant to § 243 (h) is presently made by a special inquiry officer. 8 CFR §§ 242.8 (a), 242.17 (c). Prior to 1960, no regulation provided relief to an alien crewman whose D-l landing permit was revoked but who claimed that return to his country would subject him to persecution. In Szlajmer v. Esperdy, 188 F. Supp. 491 (1960), a district court held that a crewman in this situation was entitled to be heard. The Service responded by promulgating 8 CFR § 253.1 (e), supra, at 67, the regulation which it applied in the case at bar. 8 CFR § 253.1 (e) is a hybrid. The grounds for relief are, for present purposes, identical to those of § 243 (h) of the Act. However, because the Service adheres to the view that a crewman whose D-l permit has been revoked is not “within the United States” in the technical sense of that phrase, see Leng May Ma v. Barber, 357 U. S. 185 (1958), it terms the relief “parole” into the United States rather than “withholding deportation.” Whatever terminological and conceptual differences may exist, the substance of the relief is the same. The Service could provide that all persecution claims be heard by a district director, and we see no reason why the Service cannot validly provide that the persecution claim of an alien crewman whose D-l landing permit has been revoked be heard by a district director, whether or not the ship has departed. It might be argued, however, that the Service has not done so; that 8 CFR § 253.1 (e) was designed to govern the determination of persecution claims only when § 252 (b) of the Act governed determinations of deportability; and that if departure of the vessel renders § 252 (b) inapplicable (a suggestion we consider and reject in Part III, below), then 8 CFR § 253.1 (e) likewise becomes inapplicable. Section 253.1 (e) applies, however, to “[a]ny alien crewman . . . whose conditional landing permit issued under §252.1 (d)(1) [of 8 CFR] ... is revoked” — precisely respondent’s situation — and makes no reference to the departure, vel non, of the vessel. Granting that this regulation and its successor provision are not free from ambiguity, we find it dispositive that the agency responsible for promulgating and administering the regulation has interpreted it to apply even when the vessel has departed. E. g., Kordic v. Esperdy, 386 F. 2d 232 (1967); Glavic v. Beechie, 225 F. Supp. 24 (1963), aff’d, 340 F. 2d 91 (1964). “[T]he ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Bowles v. Seminole Rock Co., 325 U. S. 410, 414 (1945). In sum, it is immaterial to the decision in this case whether § 252 (b)’s exception to the § 242 (b) procedure is, or is not, applicable to respondent. These two provisions govern only the revocation of temporary landing permits and the determination of deportability, and we reiterate that respondent does not contest the District Director’s action on either of these scores. These sections do not state who should hear and determine a request for asylum. That is a matter governed by regulation, and under the applicable regulation the respondent received his due. III. We do not rest on this ground alone, however. Both the court below and the Court of Appeals for the Second Circuit in Kordic v. Esperdy, 386 F. 2d 232 (1967), assumed that a crewman’s statutory entitlement to a § 242 (b) hearing on his request for asylum was coextensive with his right to a § 242 (b) hearing on his statutory deportability, and the case was argued here primarily on that basis. For the balance of the opinion we thus make, arguendo, the same assumption. We conclude, contrary to the court below, that an alien crewman may properly be deported pursuant to § 252 (b) even after his ship has sailed. A. Section 242 (b) of the Immigration and Nationality Act provides a generally applicable administrative procedure pursuant to which a special inquiry officer determines whether an alien is deportable. See nn. 1 and 2, supra. The history of § 252 (b)’s narrow exception to the § 242 (b) deportation procedure is found in the Report of the Senate Committee on the Judiciary, S. Rep. No. 1515, 81st Cong., 2d Sess., which preceded the enactment of the Immigration and Nationality Act. Alien crewmen had traditionally been granted the privilege of temporary admission or shore leave “because of the necessity of freeing international commerce from unnecessary barriers and considerations of comity with other nations . . . .” Id., at 546. A serious problem was created, however, by alien crewmen who deserted their ships and secreted themselves in the United States. The Committee found that: “[T]he temporary ‘shore leave’ admission of alien seamen who remain illegally constitutes one of the most important loopholes in our whole system of restriction and control of the entry of aliens into the United States. The efforts to apprehend these alien seamen for deportation are encumbered by many technicalities invoked in behalf of the alien seamen and create conditions incident to enforcement of the laws which have troubled the authorities for many years.” Id., at 550. To ameliorate this problem, the Committee recommended that: “Authority should be granted to immigration officers in a case where the alien crewman intends to depart on the same vessel on which he arrived, upon a satisfactory finding that an alien is not a bona fide crewman, to revoke the permission to land temporarily, to take the alien into custody, and to require the master of the vessel on which he arrived to detain him and remove him from the country.” Id., at 558. Unlike § 242 (b), § 252 (b) does not prescribe the procedures governing the determination of the crewman’s deportability, nor does it confine that determination to a special inquiry officer. B. As the Court of Appeals noted, the § 252 (b) procedure governs a narrow range of cases only. It is entirely inapplicable to persons other than alien crewmen. It does not apply to an alien crewman who enters the United States illegally without obtaining any landing permit at all, or who enters on a “D-2” permit allowing him to depart on a different vessel. See n. 4, supra. The Service has held § 252 (b) to be inapplicable even to a crewman issued a D-l permit unless formal revocation— as distinguished from actual deportation — -takes place before his vessel leaves American shores. Matter of M-, 5 I. & N. Dec. 127 (1953); 8 CFR § 252.2; see Cheng Fan Kwok v. Immigration Service, 392 U. S. 206, 207 (1968). Section 252 (b) most plainly governs the situation in which a D-l landing permit is revoked and the alien crewman is immediately returned to the vessel on which he arrived, which, by hypothesis, is still in a United States port. At the time of revocation, the crewman usually has not traveled far from the port, so the burden of transporting him back to the vessel is small; there is a readily identifiable vessel and place to return him to; and during his brief shore leave, which cannot exceed 29 days, the crewman is unlikely to have established significant personal or business relationships in the United States. In short, the crewman’s deportation may be expedited, with minimum hardship and inconvenience to him, to the transportation company responsible for him, and to the Service. That this is not the only situation to which the § 252 (b) procedure applies, however, is evident from the language of § 252 (b) itself and the related provisions of § 254. Section 252 (b) requires that where an alien crewman’s landing permit is revoked his transportation company must detain him aboard the vessel on which he arrived, and deport him. Section 254 (a) imposes a fine on the company and ship’s master, inter alia, for failure to detain or deport the crewman “if required to do so by an immigration officer.” However, § 252 (b)’s requirement is modified by the term, “if practicable”; and § 254 (c) eorrelatively provides: “If the Attorney General finds that deportation of an alien crewman ... on the vessel or aircraft on which he arrived is impracticable or impossible, or would cause undue hardship to such alien crewman, he may cause the alien crewman to be deported from the port of arrival or any other port on another vessel or aircraft of the same transportation line, unless the Attorney General finds this to be impracticable.” These provisions contemplate that an alien crewman whose temporary landing permit is revoked pursuant to § 252 (b) may be deported on a vessel other than the one on which he arrived. The other vessel should preferably be one owned by the transportation company which brought him to the United States, but if this is not feasible, the Attorney General may order him deported by other means, at the company’s expense. The Court of Appeals recognized that an alien crewman might properly be deported on a vessel other than the one which brought him. It noted, however, that § 254 (c) holds the owner of that vessel responsible for all of the expenses of his deportation and further provides that the vessel shall not be granted departure clearance until those expenses are paid or their payment is guaranteed. From this it concluded that “the section contemplates that the alternative arrangement shall be made while the vessel upon which the crewman arrived is still in port . . . 393 F. 2d, at 546. Since arrangements for respondent’s deportation had not been made before the M/V Sumadija departed, the § 254 (c), and hence the § 252 (b), procedures were no longer applicable: with the ship’s departure, respondent became entitled to a hearing pursuant to § 242 (b). We agree that the “clearance” provision of § 254 (c) contemplates that the crewman’s departure on another vessel may sometimes be accomplished or arranged before the vessel that brought him departs. If, however, the crewman’s vessel sails before its owner has .paid or guaranteed the expenses of deportation, the owner’s liability under § 254 (c) is in no way diminished. The Government has merely lost a useful means of compelling payment of costs which may still be collected by other methods. Indeed, as the Court of Appeals itself noted, § 254 (c)’s financial responsibility provision is not limited to instances of deportation pursuant to § 252 (b), but applies to the deportation of alien crewmen in a variety of situations, including those in which a § 242 (b) proceeding has been held, and thus those in which the crewman’s vessel may long since have departed. Strong policies support the conclusion that a properly commenced § 252 (b) proceeding does not automatically abort upon the departure of the crewman’s vessel. If the crewman whose landing permit has been revoked pursuant to § 252 (b) attacks the district director’s action in a federal court, the court would usually stay his deportation pending at least a preliminary hearing. Even courts with dockets less crowded than those of most of our major port cities may not be able to hear the matter for several days or more, during which time the vessel may often have departed according to schedule. It requires little legal talent, moreover, to manufacture a colorable case for a temporary stay out of whole cloth, and to delay proceedings once in the federal courts. The Ninth Circuit’s construction would, thus, encourage frivolous applications and intentional delays designed to assure that the crewman’s vessel departed before the case was heard. Alternatively, it would so dispose federal judges not to grant stays that persons presenting meritorious applications might be deported without the opportunity to be heard. We agree with the court below that § 252 (b) is a provision of limited applicability. But we conclude that the court’s construction would restrict its scope to a degree neither intended by Congress nor supported by the language of the Act, and that it would, as a practical matter, render § 252 (b) useless for the very function it was designed to perform. We hold that an alien crewman whose temporary landing permit is properly revoked pursuant to § 252 (b) does not become entitled to a hearing before a special inquiry officer under § 242 (b) merely because his deportation is not finally arranged or effected when his vessel leaves, and that under these circumstances the Attorney General may provide — as he did in 8 CFR § 253.1 (e), now 8 CFR § 253.1 (f) — that the crewman’s request for political asylum be heard by a district director of the Immigration and Naturalization Service. IV. At the time of respondent’s January 1965 hearing before the District Director, § 243 (h) of the Immigration and Nationality Act provided: “The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to physical persecution . . . (Emphasis added.) By the Act of October 3, 1965, § 11 (f), 79 Stat. 918, this section was amended by substituting for “physical persecution” the phrase “persecution on account of race, religion, or political opinion.” Although 8 CFR § 253.1 (e), the regulation under which respondent’s 1965 hearing was conducted, did not itself contain any restriction to “physical persecution,” it is apparent from the District Director’s findings that he read such a limitation into the regulation. We believe, therefore, that it is appropriate that respondent be given a new hearing before the District Director under the appropriate standard, and we remand the case for that purpose. The judgment of the United States Court of Appeals for the Ninth Circuit is reversed and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. A special inquiry officer is “any immigration officer who the Attorney General deems specially qualified to conduct specified classes of proceedings ...” Immigration and Nationality Act, § 101 (b)(4), 66 Stat. 171, 8 U. S. C. § 1101 (b)(4). The special inquiry officer has no enforcement duties. He performs “no functions other than the hearing and decision of issues in exclusion and deportation cases, and occasionally in other adjudicative proceedings.” 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 5.7b, at 5-49 (1967); see generally id., § 5.7. 66 Stat. 209, 8 U. S. C. § 1252 (b): “A special inquiry officer shall conduct proceedings under this section to determine the deportability of any alien, and shall administer oaths, present and receive evidence, interrogate, examine, and cross-examine the alien or witnesses, and, as authorized by the Attorney General, shall make determinations, including orders of deportation. ... No special inquiry officer shall conduct a proceeding in any case under this section in which he shall have participated in investigative functions or in which he shall have participated (except as provided in this subsection) in prosecuting functions. Proceedings before a special inquiry officer acting under the provisions of this section shall be in accordance with such regulations, not inconsistent with this Act, as the Attorney General shall prescribe. Such regulations shall include requirements that— “(1) the alien shall be given notice, reasonable under all the circumstances, of the nature of the charges against him and of the time and place at which the proceedings will be held; “ (2) the alien shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose; “(3) the alien shall have a reasonable opportunity to examine the evidence against him, to present evidence in his own behalf, and to cross-examine witnesses presented by the Government; and “(4) no decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence. “The procedure so prescribed shall be the sole and exclusive procedure for determining the deportability of an alien under this section.” A district director is the officer in charge of a district office of the Immigration and Naturalization Service. He performs a wide range of functions. See 1 C. Gordon •& H. Rosenfield, Immigration Law and Procedure § 1.9c (1967); 8 CFR § 103.1 (f). Section 252 (a), 66 Stat. 220, 8 U. S. C. § 1282 (a) provides: “No alien crewman shall be permitted to land temporarily in the United States except as provided in this section .... If an immigration officer finds upon examination that an alien crewman is a nonimmigrant . . . and is otherwise admissible and has agreed to accept such permit, he may, in his discretion, grant the crewman a conditional permit to land temporarily pursuant to regulations prescribed by the Attorney General, subject to revocation in subsequent proceedings as provided in subsection (b), and for a period of time, in any event, not to exceed— “(1) the period of time (not exceeding twenty-nine days) during which the vessel or aircraft on which he arrived remains in port, if the immigration officer is satisfied that the crewman intends to depart on the vessel or aircraft on which he arrived; or “(2) twenty-nine days, if the immigration officer is satisfied that the crewman intends to depart, within the period for which he is permitted to land, on a vessel or aircraft other than the one on which he arrived.” “D-l” and “D-2” landing permits are permits issued pursuant to 8 CFB, §§ 252.1 (d) (1) and 252.1 (d)(2), which implement §§ 252 (a) (1) and 252 (a) (2) of the Act. 26 Fed. Reg. 11797 (December 8, 1961). Effective March 22, 1967, the section was amended and redesignated § 253.1 (f), 32 Fed. Reg. 4341-4342. Because the District Director’s determination was not pursuant to § 242 (b), the District Court had jurisdiction to review his action. See Cheng Fan Kwok v. Immigration Service, 392 U. S. 206 (1968); Stanisic v. Immigration Service, 393 F. 2d 539, 542 (1968); Vucinic [and Stanisic] v. Immigration Service, 243 F. Supp. 113, 115-117 (1965); 5 U. S. C. § 1009. Actually, the ship sailed from the United States on or about January 16, 1965, or between the date on which the District Director revoked respondent’s landing permit (January 6, 1965), and the date on which, after a hearing, he denied respondent’s persecution claim (January 25, 1965). This fact was not in the record before the Court of Appeals. This was not always so. Until 1962, the final determination was made by a regional commissioner of the Service. 8 CFR §243.3 (b)(2) (1958 rev.); see Foti v. Immigration Service, 375 U. S. 217, 230, n. 16 (1963). The only substantial difference is that the regulation, but not the Statute, is limited to Communist-inspired persecution. For this reason, we have no occasion to decide whether or not respondent was “within the United States.” Compare Szlajmer v. Esperdy, 188 F. Supp. 491 (1960), with Kordic v. Esperdy, 386 F. 2d 232 (1967), and Glavic v. Beechie, 225 F. Supp. 24 (1963), aff'd, 340 F. 2d 91 (1964). It may further be noted that §243 (h), by its terms, “authorizes” but does not require the consideration of persecution claims. This is responsive to the language of §252 (b). Permission to land terminates upon the vessel’s departure, and thereafter there is nothing to “revoke.” 8 CFR § 252.2 (d) provides that a “crewman granted a conditional permit to land under section 252 (a)(1) of the Act . . . is required to depart with his vessel from its port of arrival and from each other port in the United States to which it thereafter proceeds coastwise without touching at a foreign port or place; however, he may rejoin his vessel at another port in the United States before it touches at a foreign port or place if he has advance written permission from the master or agent to do so.” In the latter case the crewman may journey some distance from the port at which he arrived. See infra, this page and at 76. 66 Stat. 221, 8 U. S. C. § 1284. This is doubtless an accommodation made in the light of the transportation company’s liability for the expenses of deportation. “All expenses incurred in connection with such deportation, including expenses incurred in transferring an alien crewman from one place in the United States to another under such conditions and safeguards as the Attorney General shall impose, shall be paid by the owner or owners of the vessel or aircraft on which the alien arrived in the United States. The vessel or aircraft on which the alien arrived shall not be granted clearance until such expenses have been paid or their payment guaranteed to the satisfaction of the Attorney General. . . .” § 264 (c). Thus, if and when respondent is deported, the owners of the M/V Sumadija will be responsible for the related expenses incurred by the United States. And, although we do not decide this question, § 254 (c) would appear to allow the Attorney General to require security for the payment of anticipated expenses of deporting an alien crewman, even though no final arrangements have been made before the vessel that brought him departs. See generally 1968 Director of the Administrative Office of the United States Courts Ann. Rep., Tables C, D, and X (1968). 66 Stat. 214. See supra, at 68; Appendix 18-22 passim. Respondent contends that his 1965 proceeding was infected with various constitutional errors, including the District Director’s alleged bias and his combination of prosecutorial, investigative, and adjudicatory functions. Because that proceeding is not before us, and because we remand for a new hearing, we have no occasion to consider these arguments, except to note that neither § 252 (b) of the Immigration and Nationality Act nor 8 CFR §253.1 (f), under which respondent will be heard on remand, is unconstitutional on its face. Likewise, it is premature to consider whether, and under what circumstances, an order of deportation might contravene the Protocol and Convention Relating to the Status of Refugees, to which the United States acceded on November 1, 1968. See Dept. State Bull., Vol. LIX, No. 1535, p. 538. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. MR. Justice Rutledge delivered the opinion of the Court. Sheridan was indicted on three counts for having violated § 3 of the National Stolen Property Act, as amended, 48 Stat. 794, 53 Stat, 1178,18 U. S. C. §§ 413-419. A jury found him guilty on all counts. On the authority of Kann v. United States, 323 U. S. 88, the Circuit Court of Appeals for the Sixth Circuit reversed the conviction. 152 F. 2d 57. Because of doubt as to the applicability of the Kann case, we granted certiorari. 328 U. S. 829. Each count charged that Sheridan, with fraudulent intent, caused the transportation in interstate commerce of a specified forged check, knowing it to have been forged. The proof offered to support these counts showed that on July 19, 1943, in Jackson, Michigan, Sheridan cashed three checks, receiving for them either cash or cash and hotel service or goods. Two, which were made the basis of counts one and two, were drawn on a bank in Cape Girardeau, Missouri, were payable to the order of “P. H. D. Sheridan,” and purported to be drawn by “U. S. E. F. C. 14A A. J. Davis, Commissioner.” As will be seen, it is not necessary to consider the third count, involving the other check. From the endorsements it was clear that each check had been cashed by or deposited in banks at Jackson, Michigan. They forwarded the two checks drawn on the Missouri bank to it for payment. Both were marked “no account” and returned unpaid to the forwarding bank. An agent of the Federal Bureau of Investigation testified that his office had conducted an investigation in Washington, D. C., and that the United States Department of Commerce had no agent “U. S. E. F. C. 14A,” nor one “A. J. Davis, Commissioner.” Sheridan was sentenced to five years’ imprisonment on each count, the sentences to run concurrently. Hence, if the conviction on any is valid, it is unnecessary to consider the convictions on the other two. Hirabayashi v. United States, 320 U. S. 81, 85; Pinkerton v. United States, 328 U. S. 640, 641, n. 1. Accordingly, for the purposes of this decision it may be taken that only the convictions on counts one and two are in issue. I. The pertinent part of amended § 3 is set out in the margin. Whether or not Sheridan’s situation is within the intended coverage depends upon the answer to be given to two questions, namely: (1) Did he cause to be transported in interstate commerce any forged security; (2) if so, did he do this “with unlawful or fraudulent intent”? It is in these respects that the section’s meaning must be determined. It is not questioned that the checks were “securities,” that they were “forged,” or that they were transported in interstate commerce. It is urged, however, that Sheridan did not “cause” the transportation, since his objective was attained when he cashed the checks and what happened to them later was of no consequence to him or his plan. Hence it is concluded that he can be said to have “caused” the transportation only in the sense that it would not have occurred if he had not cashed the checks. This “but for” relation is considered insufficient since the statute is thought not simply to forbid use of interstate commerce for transportation of forged securities without more, but to outlaw such use only when it contributes to or is an essential part of carrying out the intended specific fraud. The second contention, though stated differently, comes substantially to the same thing. It is that, upon the assumption Sheridan may be held to have “caused” the transportation, still he did not do so with the requisite “unlawful or fraudulent intent,” namely, to aid in completing the fraud. These views are bolstered by strong reliance on the Kann decision. The Government answers with essentially two arguments. One is drawn primarily from the embodiment of amended § 3 in the National Stolen Property Act. It is shortly that the offense takes color and character from the other offenses with which it is associated in the context of § 3. Broadly, therefore, the Government says that the section as amended excludes forged securities from interstate transportation just as it does stolen goods, money or securities, counterfeited securities and counterfeiting tools; or, for that matter, just as diseased cattle, lottery tickets, adulterated foods, etc., are excluded under various statutes related to the National Stolen Property Act. More narrowly the Government argues that the transportation here necessarily aided or contributed to the perpetration of the fraud, if not by enabling respondent to secure possession originally of its fruits, then by giving him the necessary interval to make his escape and thus to avoid either prosecution or restitution of the amount which early detection would make probable. As an entirely fresh matter, we should have difficulty in avoiding the force of the Government’s views. The setting of the offense in amended § 3, together with the complete absence of anything in the legislative history to indicate that causing interstate transportation of forged securities was designed to be treated differently from causing the transportation of stolen goods, counterfeited securities, counterfeiting tools, etc., indicates plainly that transporting all these articles is to be treated in the same manner and, moreover, not in the limited sense for which respondent argues. Congress had in mind preventing further frauds or the completion of frauds partially executed. But it also contemplated coming to the aid of the states in detecting and punishing criminals whose offenses are complete under state law, but who utilize the channels of interstate commerce to make a successful getaway and thus make the state’s detecting and punitive processes impotent. This was indeed one of the most effective ways of preventing further frauds as well as irrevocable completion of partially executed ones. In the light of this purpose, we do not believe that Congress intended to restrict the prohibited transportation of stolen goods, securities and money, or of counterfeited securities and counterfeiting-tools, to situations where it would be effective to complete a specific fraud, in the sense of enabling the defrauder to secure possession initially of what he seeks. The intent was more general. It is true that amended § 3 forbids the interstate transportation of forged and counterfeited securities, and forging and counterfeiting tools, “with unlawful or fraudulent intent,” while the earlier-proscribed transportation of stolen goods, securities and money is not required in terms to be done with such an intent, but only with knowledge that they have been stolen. This difference would seem to be entirely procedural, not substantive in character. But, in any event, it is not controlling here. For the question remains whether the Kann case requires us to hold that “with unlawful or fraudulent intent” must be taken as restricting the forbidden transportation to cases where that element aids in originally securing the fruits of the fraud. II. That case held that one alleged to be party to a fraudulent scheme could not be convicted under § 215 of the Criminal Code, 18 U. S. C. § 338, for using the mails “for the purpose of executing such scheme,” by proving that he or his associates cashed checks, receiving the proceeds at forwarding banks, which in turn mailed them to the drawee banks for collection, the checks being neither forged nor dishonored by the banks on which they were drawn. We think the case is distinguishable both on the statutes applied and on the facts. In order that comparison may be exact, we set forth the applicable wording of the two sections. Section 215 of the Criminal Code, involved in the Kann case, is as follows: "Whoever, having devised . . . any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, . . . shall, for the purpose of executing such scheme or artifice or attempting so to do, place, or cause to be placed, any letter ... in any post office, or . . . cause to be delivered by mail according to the direction thereon . . . any such letter, . . . shall be fined not more than $1,000, or imprisoned not more than five years, or both.” (Emphasis added.) Amended § 3 of the Stolen Property Act reads pertinently, except for its important contextual coloring: “. . . whoever with unlawful or fraudulent intent shall transport or cause to be transported in interstate . . . commerce any falsely made, forged, altered, or counterfeited securities, knowing the same to have been falsely made, forged, altered, or counterfeited, . . . shall be punished by a fine of not more than $10,000 or by imprisonment for not more than ten years, or "both . . .” (Emphasis added.) Under § 215 the express requirement is that the mailing or causing to be delivered by mail shall be “for the purpose of executing such scheme or artifice or attempting so to do.” There is no such explicit requirement in amended § 3. The wording there is that the interstate transportation shall be done “with unlawful or fraudulent intent.” This different wording and the difference in the contextual settings of the proscriptions have meaning, we think, to make their effects distinct. We emphasize at the outset that amended § 3 is part of a scheme of federal-state cooperation in apprehending and punishing criminals, while § 215 deals only with a distinctly federal crime. The language of amended § 3 is broader and less specific than that of § 215. The word “unlawful” in the former is not to be ignored. Nor is it to be rendered meaningless by identifying it with “fraudulent,” more especially if the latter is to be endowed with the restrictive connotation, not expressly stated, of “for the purpose of executing such scheme.” The word “unlawful” has no such narrow meaning. Literally it is broad enough to include any unlawful purpose, such as to aid in concealing what has been done and thus in avoiding prosecution and restoration. Moreover, in the Kami setting, the quoted wording now sought to be read into amended § 3 was restricted to significance in relation to getting the proceeds of the checks irrevocably, and the subsequent mailing was held to have no significant influence in producing that effect or, therefore, upon completing the scheme; or, moreover, toward concealing the crime. Whether or not in those circumstances the mailing had concealing effects, the situation in this respect was very different from the one now presented. The checks there were not forged or altered. Here they were. There the checks were honored by the drawees after the mailing. Here they were dishonored after the' transportation. There the payee-indorsers knew they would not be. In that case the mailing was much less likely to produce disclosure than was the transportation in this one. Accordingly the irrevocable completion of the scheme was much less affected by the mailing than it was by the transportation here. So also with any concealing effect of the transportation and, therefore, with any unlawful or fraudulent intent concerning it. Indeed the Kami opinion recognized that in other circumstances a different result might be called for, even under the explicit and restricted purposive requirement of § 215. For in putting aside the cases sustaining convictions where use of the mails was “a means of concealment so that further frauds which are part of the scheme may be perpetrated,” the Court said: “In these the mailing has ordinarily had a much closer relation to further fraudulent conduct than has the mere clearing of a check, although it is conceivable that this alone, in some settings, would be enough.” 323 U. S. at 95. The Court was not dealing with the transmission of a forged check, certain to be dishonored after the mailing or transportation, or therefore with a situation in which the forbidden transmission was either so likely to result in disclosure of the crime or so obviously intended to provide an interval for escape before that disclosure would be made. We cannot say that in circumstances such as are now here the same result would have been reached in applying § 215, in view of these differences and the express reservation made for other situations involving greater possibilities for concealment. This is enough to distinguish the Kann case. But we think, in addition, we would be altogether unjustified to rewrite the words “with unlawful or fraudulent intent” to mean “for the purpose of executing such scheme or artifice” in the sense of aiding to secure possession of the proceeds of the checks irrevocably, which was the meaning given that phrase in the Kann decision. Apart from the absence here of irrevocability in the legal sense, to do this would be to disregard what we think was Congress’ clear purpose to make amended § 3, like the section in its original form, a means of apprehension and of punishment substantially, though not strictly in the legal sense, for past crimes of the sort specified in situations where interstate commerce was used as a method of defeating the state’s exercise of those functions. We cannot thus tear the transportation of forged checks from its setting and give it the distinct status, with reference to intent, as compared with the other forbidden transportations, which we think would result from respondent’s reading. In amending § 3 Congress was extending the federal law enforcement arm to reach primarily the larger dealers in forged and counterfeited securities. Not only forged checks, but forged or counterfeited bonds and coupons, as well as other forms of securities, and the instruments with which these are made, were the target. The legislative history shows that the purpose was to bring operators in these false securities into substantially the same reach of federal power as applied to others dealing in stolen goods, securities and money. In one respect the object was to make their apprehension and conviction more easy, for the $5,000 minimum in value was intentionally omitted. The amendment was thus an extension, not a contraction of the preexisting provisions. The purpose however was not to reach persons innocently, but knowingly, transporting the forbidden articles. Hence it was necessary to introduce safeguarding language. This was done by inserting “with unlawful or fraudulent intent/'’ Broad as this was, it was .sufficient for the purpose of excluding innocent transportation. We do not think it was also intended to safeguard the counterfeiter or professional forger, simply because the transportation alleged and proved does not aid him initially in securing the possession of the proceeds of his fraudulent dispositions. To take this view would nullify much of the amendment’s intended effectiveness. Nor can we treat forged checks differently from other securities, either because they are forged or because the forgery is done by “little fellows” who perhaps were not the primary aim of the congressional fire. The statute expressly includes checks. It makes no distinction between large and small operators. There is no room for implying such a distinction in view of the absence of the $5,000 limitation with respect to the transportation of forged checks. Whether or not Congress had in mind primarily such small scale transactions as Sheridan’s, his operation was covered literally and we think pur-posively. Had this not been intended, appropriate exception could easily have been made. If it is assumed that the evidence supports the conclusions on which the case has come here, Sheridan perpetrated three frauds, including two forgeries, in one day. Forgery, thus repeated, is not amateurish, though the amounts obtained are small. Notoriously the crime done once becomes habitual. And forgers are notoriously itinerant. Drawing the check upon an out-of-state bank, knowing it must be sent there for presentation, is an obviously facile way to delay and often to defeat apprehension, conviction and restoration of the ill-gotten gain. There are sound reasons therefore why Congress would wish not to exclude such persons, among them the very ease with which they may escape the state’s grasp. A word will dispose of the idea that Sheridan did not “cause” the transportation. Certainly he knew the checks would have to be sent to the Missouri bank for collection. Given the proven forgery and uttering, no other conclusion would be possible. Necessarily, too, it would follow he intended the paying bank to send the checks there for that purpose. He knew they must cross state lines to be presented. One who induces another to do exactly what he intends, and does so by defrauding him, hardly can be held not to “cause” what is so done. The Kann case itself is authority for the Government on this point, in fact goes farther than is necessary here. For, as respected the same contention there advanced, the opinion said: “. . . we think it a fair inference that those defendants who drew, or those who cashed, the checks believed that the banks which took them would mail them to the banks on which they were drawn, and, assuming the petitioner participated in the scheme, their knowledge was his knowledge.” 323 U. S. at 93. The statement was in answer to argument that Kann had not “caused” the mailing. III. Since the Circuit Court of Appeals reversed the conviction on all counts on its view that the Kann case was controlling, it did not discuss respondent’s other contentions. These are renewed here. They are, first, that the evidence was insufficient to support the verdict; and, second, that certain testimony was inadmissible, including that of the federal agent to the effect that the Department of Commerce had no agency “U. S. E. F. C. 14A” nor one “A. J. Davis, Commissioner.” On the facts the two contentions are closely related. We express no opinion as to the admissibility of the evidence. It is desirable that the litigants and this Court, if the case is again before us, have the benefit of the views of the Circuit Court of Appeals. See United States v. Ballard, 322 U. S. 78, 88. However, with respect to the first contention, upon the assumption that the record, as stipulated, correctly sets forth the evidence introduced by the Government and also that all the evidence was admissible, it follows from our discussion of the statute that the evidence was sufficient to send the case to the jury. The jury properly could have inferred that respondent had forged the checks in question; that he therefore had knowledge of their spurious character; and, furthermore, that the checks were negotiated and caused to be transported with unlawful or fraudulent intent. However, counsel assigned here for respondent calls our attention to the fact that the instructions given and the rulings on instructions requested do not appear in the record. He suggests that, if the cause should be remanded to the Circuit Court of Appeals for further proceedings, it would be appropriate for us to suggest to that court in the remand that it exercise its powers to secure a complete bill of exceptions, including the instructions given and all pertinent rulings in connection therewith. That course has been followed in unusual circumstances. See Miller v. United States, 317 U. S. 192, 199-200; Hel- wig v. United States, 328 U. S. 820. Such circumstances are presented on this record. Respondent defended himself at the trial. He did not have counsel on the appeal. The case is here in forma pauperis, and it is stated in his brief that “respondent is now confined in a Michigan state prison, is without funds and is unable to employ counsel of his own choice.” Since the decision in Miller v. United States, supra, the Federal Rules of Criminal Procedure have taken effect and expressly provide that they shall govern all proceedings pending at the effective date “so far as just and practicable.” Rule 59. Bills of exception are abolished. Since the record contains a statement of the evidence, apparently the only serious deficiency is in the matters relating to the instructions, noted above. In these circumstances we think taking any corrective action, in this respect or otherwise, in the interest of seeing that substantial justice is done, well may be left to the judgment of the Court of Appeals. The judgment is reversed and the cause is remanded to that court for further proceedings in conformity with this opinion. The Chief Justice and MR. Justice Douglas dissent. The record states that respondent "having been fully informed of his constitutional right to counsel, and having been asked whether he desired counsel assigned, . . . stated he did not desire the assistance of counsel.” Since certiorari was granted Clarke v. Sanford, 156 F. 2d 115, has been decided by the Fifth Circuit. It appears to be in conflict with the case at bar. See also Tolle v. Sanford, 58 F. Supp. 695. The proceedings at trial were not stenographically reported. Hence the parties prepared a statement of evidence from memory and from notes made during the course of the trial, and stipulated that it “substantially sets forth the testimony and evidence” presented by the Government. Upon approval of the District Court, the statement was made part of the record. Count two is identical in effect with count one for the purposes of the argument made here. Count 3, however, involves a check signed by respondent in his own name as maker, and the Government — apparently of the view that such a check is not “altered” or “counterfeited” — states: “It is not clear that such a check is falsely made or forged within the general law.” The pertinent text of § 3 is as follows: “Whoever shall transport or cause to be transported in interstate or foreign commerce any goods wares, or merchandise, securities, or money, of the value of $5,000 or more theretofore stolen, feloniously converted, or taken feloniously by fraud or with intent to steal or purloin, knowing the same to have been so stolen, feloniously converted, or taken, or whoever with unlawful or fraudulent intent shall transport or cause to be transported in interstate or foreign commerce any falsely made, forged, altered, or counterfeited securities, knowing the same to have been falsely made, forged, altered, or counterfeited, or whoever with unlawful or fraudulent intent shall transport, or cause to be transported in interstate or foreign commerce, any bed piece, bed plate, roll, plate, die, seal, stone, type, or other tool, implement, or thing used or fitted to be used in falsely making, forging, altering, or counterfeiting any security, or any part thereof, shall be punished by a fine of not more than $10,000 or by imprisonment for not more than ten years, or both . . . .” 48 Stat. 794, 795, as amended by 53 Stat. 1178. (Emphasis added.) The Act, § 2 (b), defines the term “securities” as including checks. The sufficiency of the evidence to prove the fact of forgery is challenged, cf. Part III, but for the purposes of the principal contentions, it is conceded arguendo. See Hearings before the Committee on the Judiciary on H. R. 10287, 70th Cong., 1st Sess.; H. Rep. 2528, 70th Cong., 2d Sess.; H. Rep. 1462, 73d Cong., 2d Sess.; S. R.ep. 538, 73d Cong., 2d Sess.; H. Rep. 1599, 73d Cong., 2d Sess.; H. Rep. 422, 76th Cong., 1st Sess.; S. Rep. 674,76th Cong., 1st Sess. See note 5 for pertinent text of § 3. The National Stolen Property Act is said to be modeled after the National Motor Vehicle Theft Act, 41 Stat. 324. H. Rep. 2528, 70th Cong., 2d Sess., 4; H. Rep. 1462, 73d Cong., 2d Sess., 2. See also the Animal Industry Act of 1884, 23 Stat. 31; the Act for the Suppression of Lottery Traffic of 1895, 28 Stat. 963; the Pure Food and Drug Act of 1906, 34 Stat. 768; the White Slave Traffic Act of 1910, 36 Stat. 825; the Webb-Kenyon Act of 1913, 37 Stat. 699. See H. Rep. 2528, 70th Cong., 2d Sess., 2: “Most of the States have laws covering the underlying principle of this proposed legislation, but it must be remembered that the jurisdiction of the State court does not reach into all of the States, especially when the matter of producing witnesses and bringing to the court the proof is concerned.” See also Hearings before the Committee on the Judiciary on H. R. 10287, supra note 8, passim. One who knowingly transports stolen goods would do so for one of three sorts of objects, namely: (1) to dispose of them or use them unlawfully; (2) to aid in concealing the theft, thus avoiding prosecution for himself or another; or (3) for some purpose wholly innocent, such as to turn them over to the police or the rightful owner. In the first two instances there would be inherent in the act “unlawful intent” or “fraudulent intent,” though proof of this might not be required apart from the proof of knowledge and absence of any showing of innocent purpose. Congress obviously did not intend to make criminal such an instance as the third. However, proof of the innocent intent might be required as matter of defense, the other elements being made out. In other words, it may well be doubted that adding the requirement “with unlawful or fraudulent intent” in the amended part of the section added anything to the substantive crime; for its effect is apparently only to require the state to allege and prove the unlawful or fraudulent intent, rather than to require the defendant to allege and prove his innocent purpose. See note 5. It was as to this conclusion that four members of the Court dissented. 323 U. S. at 95. United States v. Lowe, 115 F. 2d 596; Dunham v. United States, 125 F. 2d 895; United States v. Riedel, 126 F. 2d 81. The discovery of the scheme resulted from an examination of the allegedly defrauded corporation’s books by a Government examiner, not as here from return of the checks unpaid by the forwarding bank. See the letter from the Attorney General to Senator Ashurst, Chairman of the Senate Committee on the Judiciary, set out in S. Rep. 674, 76th Cong., 1st Sess., 2. Ibid. See note 6. See Part III. It is argued that excluding the evidence regarded as inadmissible would render the remaining evidence insufficient. That is, the checks which form the basis of counts 1 and 2. We express no opinion concerning the check on which count 3 was based. See note 4. 18 U. S. C. following § 687, effective March 21,1946. In this case the indictment was filed on October 27, 1944; the jury verdict and judgment were filed on November 30, 1944; the judgment of the Circuit Court of Appeals was entered on November 19, 1945; and a Government petition for rehearing was denied on January 28,1946. Certiorari was granted on May 13,1946. See Rule 39 (c) and the note prepared under the direction of the Advisory Committee on Rules for Criminal Procedure. “The new rule supersedes Rules VII, VIII, and IX of the Criminal Appeals Rules of 1933, 292 U. S. 661. One of the results of the change is the abolition of bills of exceptions.” S. Doc. 175, 79th Cong., 2d Sess., 62-63. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Per Curiam. The petitioner brought this suit in the District Court for the District of Massachusetts. He sought damages under the Jones Act, 46 U. S. C. § 688, for injuries suffered while being transferred at sea in a “Navy life ring” from a tug to a Texas tower which the respondents, his employers, were constructing under a contract with the Government on Georges Bank, 110 miles east of Cape Cod. The District Court directed a verdict for the respondents at the close of the petitioner’s case. The trial judge indicated his view that the evidence created a fact question on the issue as to whether the petitioner was a crew member, but held that the petitioner’s exclusive remedy was under the Defense Bases Act, 42 U. S. C. §§ 1651-1654, which incorporates the remedies of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U. S. C. §§ 901-950. The Court of Appeals for the First Circuit held that the Defense Bases Act did not provide the exclusive remedy for a member of a crew in light of § 1654 of the Act providing “This chapter shall not apply in respect to the injury ... of ... (3) a master or member of a crew of any vessel.” However, the Court of Appeals affirmed the District Court’s judgment, one judge dissenting, upon the ground that • the evidence was not sufficient to create a fact question as to whether the petitioner was a crew member. 245 F. 2d 437. We granted certiorari, 355 U. S. 867. We hold, in agreement with the Court of Appeals, that 42 U. S. C. § 1654 saves the remedy under the Jones Act created for a member of a crew of any vessel. We hold further, however, in disagreement with the Court of Appeals, that the petitioner’s evidence presented an evi-dentiary basis for a jury’s finding whether or not the petitioner was a member of a crew of any vessel. Senko v. LaCrosse Dredging Corp., 352 U. S. 370; Gianfala v. Texas Co., 350 U. S. 879; South Chicago Co. v. Bassett, 309 U. S. 251. The judgment is reversed and the case remanded to the District Court for further proceedings not inconsistent with this opinion. Reversed. Mr. Justice Frankfurter is of opinion that, since the course of argument demonstrated that the case turns entirely on evaluation of evidence in a particular set of circumstances, the writ of certiorari was improvidently granted and should be dismissed. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Per Curiam. Appellants contend that Oregon’s $25 appellate court filing fee, as applied in this case, violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment and, also, the First Amendment as incorporated into the Fourteenth. The Supreme Court of Oregon decided otherwise. 262 Ore. 375, 498 P. 2d 757 (1972). We affirm that decision for reasons we found persuasive in United States v. Kras, 409 U. S. 434 (1973). Appellant Ortwein (who also was receiving social security and an urban renewal allowance) sustained a reduction of approximately $39 per month in his Oregon old-age assistance when his county welfare agency determined that he shared shelter and expenses with another person in a manner that relieved him of some of the costs upon which his original award had been based. Ortwein appealed to the Oregon Public Welfare Division. The Division conducted a hearing and upheld the county agency’s decision. Appellant Faubion claimed that certain expenses related to work training under a federal program should have been deducted in calculating her income. Most of these deductions were disallowed, after hearing, by the Public Welfare Division. The disallowance resulted in smaller welfare payments to Faubion over a five-month period. Judicial review of these agency decisions is authorized under state law. Ore. Rev. Stat. § 183.480 (1971). In cases that are contested, as these were, jurisdiction for judicial review is conferred upon the Oregon Court of Appeals. § 183.480 (2). All appellants in civil cases in Oregon pay a $25 filing fee in appellate courts. §§ 21.010 and 21.040 (1971). Each of the present appellants alleged that he was an indigent unable to pay the filing fee; each moved to proceed in forma pauperis in the Oregon Court of Appeals. The motions were denied without opinions. Appellants then petitioned the Supreme Court of Oregon for an alternative writ of mandamus ordering the Court of Appeals to accept appellants’ cases without payment of fees. The Supreme Court of Oregon requested supplemental briefs and then issued its opinion denying the petition for mandamus. 262 Ore. 375, 498 P. 2d 757 (1972). From this denial the present appeal is taken. I Relying on this Court’s opinion in Boddie v. Connecticut, 401 U. S. 371 (1971), and on the remand-for-reconsideration order in Frederick v. Schwartz, 402 U. S. 937 (1971), appellants contend that the Oregon appellate filing fee, when applied to indigents seeking to appeal an adverse welfare decision, violates the Due Process Clause of the Fourteenth Amendment. In United States v. Kras, 409 U. S. 434 (1973), this Court upheld statutorily imposed bankruptcy filing fees against a constitutional challenge based on Boddie. We emphasized the special nature of the marital relationship and its concomitant associational interests, and noted that they were not affected in that case and that the objective sought by appellant Kras could be obtained through alternative means that did not require a fee. Boddie, of course, was not concerned with post-hearing review. We now conclude that Kras, rather than Boddie, governs the present appeal, and we emphasize that Frederick was remanded, and not summarily reversed. A. In Kras, we observed that one’s interest in a bankruptcy discharge “does not rise to the same constitutional level” as one’s inability to dissolve his marriage except through the courts. 409 U. S., at 445. In this case, appellants seek increased welfare payments. This interest, like that of Kras, has far less constitutional significance than the interest of the Boddie appellants. Compare Dandridge v. Williams, 397 U. S. 471 (1970), and Richardson v. Belcher, 404 U. S. 78 (1971), with Loving v. Virginia, 388 U. S. 1 (1967); Skinner v. Oklahoma, 316 U. S. 535 (1942); Griswold v. Connecticut, 381 U. S. 479 (1965), and Eisenstadt v. Baird, 405 U. S. 438 (1972). Each of the present appellants has received an agency hearing at which it was determined that the minimum level of payments authorized by law was being provided. As in Kras, we see “no fundamental interest that is gained or lost depending on the availability” of the relief sought by appellants. 409 U. S., at 445. B. In Kras, the Court also stressed the existence of alternatives, not conditioned on the payment of the fees, to the judicial remedy. Id., at 446. The Court has held that procedural due process requires that a welfare recipient be given a pretermination evidentiary hearing. Goldberg v. Kelly, 397 U. S. 254, 264, 266-271 (1970). These appellants have had hearings. The hearings provide a procedure, not conditioned on payment of any fee, through which appellants have been able to seek redress. This Court has long recognized that, even in criminal cases, due process does not require a State to provide an appellate system. McKane v. Durston, 153 U. S. 684, 687 (1894); see Griffin v. Illinois, 351 U. S. 12, 18 (1956); District of Columbia v. Clawans, 300 U. S. 617, 627 (1937); Lindsey v. Normet, 405 U. S. 56, 77 (1972). Under the facts of this case, appellants were not denied due process. II Appellants urge that the filing fee violates the Equal Protection Clause by unconstitutionally discriminating against the poor. As in Kras, this litigation, which deals with welfare payments, “is in the area of economics and social welfare.” 409 U. S., at 446; see Dandridge v. Williams, 397 U. S., at 485-486. No suspect classification, such as race, nationality, or alienage, is present. See Graham v. Richardson, 403 U. S. 365, 372 (1971). The applicable standard is that of rational justification. United States v. Kras, supra. The purpose of the filing fee, as with the bankruptcy fees in Kras, is apparent. The Oregon court system incurs operating costs, and the fee produces some small revenue to assist in offsetting those expenses. Cf. Ore. Rev. Stat. § 21.590 (1971). Appellants do not contend that the fee is disproportionate or that it is not an effective means to accomplish the State’s goal. The requirement of rationality is met. III Relying on Lindsey v. Normet, supra, appellants contend that the fee is not required of certain classes of litigants, and that an appeal is thus “capriciously and arbitrarily denied” to other appellants, such as themselves, also in violation of the Equal Protection Clause. See 405 U. S., at 77. They assert that criminal appeals, habeas corpus petitions from state institutions or civil commitment proceedings, and appeals from terminations of parental rights may be filed in forma pauperis in the Oregon Court of Appeals. Jurisdictional Statement 23. We are not told just why these filings are permitted, but the opinion of the Supreme Court of Oregon makes it clear that in forma pauperis appeals are allowed only if supervening law requires a right to a free appeal. 262 Ore., at 384, 498 P. 2d, at 761-762. If the Oregon courts have interpreted the applicable law to give special rights in the criminal area, in civil cases that result in loss of liberty, and in cases terminating parental rights, we cannot say that this categorization is capricious or arbitrary. A ,7 Affirmed. The Division found that the county agency “acted within its discretion by determining that the claimant’s living arrangement represented a living situation in which shelter and expenses are shared.” The agency’s order explained that that reduction in the room and board allowance was proper because “[t]he eligibility of recipients who share shelter with non-recipients, and do not pay for room and board, shall be determined on a share/fraction basis at [Public Welfare Division] standards.” Record 9. In his petition for review, Ortwein contended that the order was not supported by “reliable, probative and substantial evidence in the whole record.” Faubion received an incentive training allowance of $120 per month for approximately five months from a program under the Manpower Development and Training Act of 1962, as amended, 76 Stat. 23, 42 U. S. C. §§ 2571-2574. Record 12. Faubion also was receiving over $210 per month through a state-administered AFDC program. Jurisdictional Statement 4; Record 11. States, in making their income calculations under AFDC, deduct from gross income all expenses “reasonably attributable” to the earning of the income. 42 U. S. C. §602 (a) (7); 45 CFR § 233.20 (a) (3) (iv) (Sept. 1972). Faubion claimed that she had work-training expenses of $20 per month for essential clothing and grooming, of $20 per month for lunches on the job, of $30 per month for convenience foods for family use made necessary because of her job, of $5 per month for oil, tuneups and repairs, and of $5 per month for miscellaneous school supplies. Record 13. Although the Division allowed some deductions, it determined that the remaining expenses were not “reasonably attributable” to the training program. Record 12. On appeal, Faubion sought to challenge this finding. See also Huffman v. Boersen, 406 U. S. 337 (1972). These evidentiary hearings, of course, must meet the minimal requirements of due process. Goldberg v. Kelly, 397 U. S. 254, 266-271 (1970). Appellants have alleged that the hearings were deficient in several ways, Jurisdictional Statement 9-10, but neither the record nor the opinion of the Oregon court provides support for these contentions. Appellants also claim a violation of their First Amendment right to petition for redress. Our discussion of the Due Process Clause, however, demonstrates that appellants’ rights under the First Amendment have been fully satisfied. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Stevens delivered the opinion of the Court. Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. Presumably for these reasons, in the 13 years since we decided Penry v. Lynaugh, 492 U. S. 302 (1989), the American public, legislators, scholars, and judges have deliberated over the question whether the death penalty should ever be imposed on a mentally retarded criminal. The consensus reflected in those deliberations informs our answer to the question presented by this case: whether such executions are “cruel and unusual punishments” prohibited by the Eighth Amendment to the Federal Constitution. I Petitioner, Daryl Renard Atkins, was convicted of abduction, armed robbery, and capital murder, and sentenced to death. At approximately midnight on August 16, 1996, Atkins and William Jones, armed with a semiautomatic handgun, abducted Eric Nesbitt, robbed him of the money on his person, drove him to an automated teller machine in his pickup truck where cameras recorded their withdrawal of additional cash, then took him to an isolated location where he was shot eight times and killed. Jones and Atkins both testified in the guilt phase of Atkins’ trial. Each confirmed most of the details in the other’s account of the incident, with the important exception that each stated that the other had actually shot and killed Nesbitt. Jones’ testimony, which was both more coherent and credible than Atkins’, was obviously credited by the jury and was sufficient to establish Atkins’ guilt. At the penalty phase of the trial, the State introduced victim impact evidence and proved two aggravating circumstances: future dangerousness and “vileness of the offense.” To prove future dangerousness, the State relied on Atkins’ prior felony convictions as well as the testimony of four victims of earlier robberies and assaults. To prove the second aggravator, the prosecution relied upon the trial record, including pictures of the deceased’s body and the autopsy report. In the penalty phase, the defense relied on one witness, Dr. Evan Nelson, a forensic psychologist who had evaluated Atkins before trial and concluded that he was “mildly mentally retarded.” His conclusion was based on interviews with people who knew Atkins, a review of school and court records, and the administration of a standard intelligence test which indicated that Atkins had a full scale IQ of 59. The jury sentenced Atkins to death, but the Virginia Supreme Court ordered a second sentencing hearing because the trial court had used a misleading verdict form. 257 Va. 160, 510 S. E. 2d 445 (1999). At the resentencing, Dr. Nelson again testified. The State presented an expert rebuttal witness, Dr. Stanton Samenow, who expressed the opinion that Atkins was not mentally retarded, but rather was of “average intelligence, at least,” and diagnosable as having antisocial personality disorder. App. 476. The jury again sentenced Atkins to death. The Supreme Court of Virginia affirmed the imposition of the death penalty. 260 Va. 375, 385, 534 S. E. 2d 312, 318 (2000). Atkins did not argue before the Virginia Supreme Court that his sentence was disproportionate to penalties imposed for similar crimes in Virginia, but he did contend “that he is mentally retarded and thus cannot be sentenced to death.” Id., at 386, 534 S. E. 2d, at 318. The majority of the state court rejected this contention, relying on our holding in Penry. 260 Va., at 387, 534 S. E. 2d, at 319. The court was “not willing to commute Atkins’ sentence of death to life imprisonment merely because of his IQ score.” Id., at 390, 534 S. E. 2d, at 321. Justice Hassell and Justice Koontz dissented. They rejected Dr. Samenow’s opinion that Atkins possesses average intelligence as “incredulous as a matter of law,” and concluded that “the imposition of the sentence of death upon a criminal defendant who has the mental age of a child between the ages of 9 and 12 is excessive.” Id., at 394, 395-396, 534 S. E. 2d, at 323-324. In their opinion, “it is indefensible to conclude that individuals who are mentally retarded are not to some degree less culpable for their criminal acts. By definition, such individuals have substantial limitations not shared by the general population. A moral and civilized society diminishes itself if its system of justice does not afford recognition and consideration of those limitations in a meaningful way.” Id., at 397, 534 S. E. 2d, at 325. Because of the gravity of the concerns expressed by the dissenters, and in light of the dramatic shift in the state legislative landscape that has occurred in the past 13 years, we granted certiorari to revisit the issue that we first addressed in the Penry case. 533 U. S. 976 (2001). II The Eighth Amendment succinctly prohibits “[e]xcessive” sanctions. It provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” In Weems v. United States, 217 U. S. 349 (1910), we held that a punishment of 12 years jailed in irons at hard and painful labor for the crime of falsifying records was excessive. We explained “that it is a precept of justice that punishment for crime should be graduated and proportioned to [the] offense.” Id., at 367. We have repeatedly applied this proportionality precept in later cases interpreting the Eighth Amendment. See Harmelin v. Michigan, 501 U. S. 957, 997-998 (1991) (Kennedy, J., concurring in part and concurring in judgment); see also id., at 1009-1011 (White, J., dissenting). Thus, even though “imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual,” it may not be imposed as a penalty for “the ‘status’ of narcotic addiction,” Robinson v. California, 370 U. S. 660, 666-667 (1962), because such a sanction would be excessive. As Justice Stewart explained in Robinson: “Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” Id., at 667. A claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the “Bloody Assizes” or when the Bill of Rights was adopted, but rather by those that currently prevail. As Chief Justice Warren explained in his opinion in Trop v. Dulles, 356 U. S. 86 (1958): “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. . . . The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Id., at 100-101. Proportionality review under those evolving standards should be informed by “ ‘objective factors to the maximum possible extent,’ ” see Harmelin, 501 U. S., at 1000 (quoting Rummel v. Estelle, 445 U. S. 263, 274-275 (1980)). We have pinpointed that the “clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures.” Penry, 492 U. S., at 331. Relying in part on such legislative evidence, we have held that death is an impermissibly excessive punishment for the rape of an adult woman, Coker v. Georgia, 433 U. S. 584, 593-596 (1977), or for a defendant who neither took life, attempted to take life, nor intended to take life, Enmund v. Florida, 458 U. S. 782, 789-793 (1982). In Coker, we focused primarily on the then-recent legislation that had been enacted in response to our decision 10 years earlier in Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), to support the conclusion that the “current judgment,” though “not wholly unanimous,” weighed very heavily on the side of rejecting capital punishment as a “suitable penalty for raping an adult woman.” Coker, 433 U. S., at 596. The “current legislative judgment” relevant to our decision in Enmund was less clear than in Coker but “nevertheless weigh[ed] on the side of rejecting capital punishment for the crime at issue.” Enmund, 458 U. S., at 793. We also acknowledged in Coker that the objective evidence, though of great importance, did not “wholly determine” the controversy, “for the 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.” 433 U. S., at 597. For example, in Enmund, we concluded by expressing our own judgment about the issue: “For purposes of imposing the death penalty, Enmund’s criminal culpability must be limited to his participation in the robbery, and his punishment must be tailored to his personal responsibility and moral guilt. Putting Enmund to death to avenge two killings that he did not commit and had no intention of committing or causing does not measurably contribute to the retributive end of ensuring that the criminal gets his just deserts. This is the judgment of most of the legislatures that have recently addressed the matter, and we have no reason to disagree with that judgment for purposes of construing and applying the Eighth Amendment.” 458 U. S., at 801 (emphasis added). Thus, in cases involving a consensus, our own judgment is “brought to bear,” Coker, 438 U. S., at 597, by asking whether there is reason to disagree with the judgment reached by the citizenry and its legislators. Guided by our approach in these cases, we shall first review the judgment of legislatures that have addressed the suitability of imposing the death penalty on the mentally retarded and then consider reasons for agreeing or disagreeing with their judgment. III The parties have not called our attention to any state legislative consideration of the suitability of imposing the death penalty on mentally retarded offenders prior to. 1986. In that year, the public reaction to the execution of a mentally retarded murderer in Georgia apparently led to the enactment of the first state statute prohibiting such executions. In 1988, when Congress enacted legislation reinstating the federal death penalty, it expressly provided that a “sentence of death shall not be carried out upon a person who is mentally retarded.” In 1989, Maryland enacted a similar prohibition. It was in that year that we decided Penry, and concluded that those two state enactments, “even when added to the 14 States that have rejected capital punishment completely, do not provide sufficient evidence at present of a national consensus.” 492 U. S., at 334. Much has changed since then. Responding to the national attention received by the Bowden execution and our decision in Penry, state legislatures across the country began to address the issue. In 1990, Kentucky and Tennessee enacted statutes similar to those in Georgia and Maryland, as did New Mexico in 1991, and Arkansas, Colorado, Washington, Indiana, and Kansas in 1993 and 1994. In 1995, when New York reinstated its death penalty, it emulated the Federal Government by expressly exempting the mentally retarded. Nebraska followed suit in 1998. There appear to have been no similar enactments during the next two years, but in 2000 and 2001 six more States — South Dakota, Arizona, Connecticut, Florida, Missouri, and North Carolina-joined the procession. The Texas Legislature unanimously adopted a similar bill, and bills have passed at least one house in other States, including Virginia and Nevada. It is not so much the number of these States that is significant, but the consistency of the direction of change. Given the well-known fact that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crime, the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal. The evidence carries even greater force when it is noted that the legislatures that have addressed the issue have voted overwhelmingly in favor of the prohibition. Moreover, even in those States that allow the execution of mentally retarded offenders, the practice is uncommon. Some States, for example New Hampshire and New Jersey, 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. And it appears that even among those States that regularly execute offenders and that have no prohibition with regard to the mentally retarded, only five have executed offenders possessing a known IQ less than 70 since we decided Penry. The practice, therefore, has become truly unusual, and it is fair to say that a national consensus has developed against it. To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. 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. Wainwright, 477 U. S. 899 (1986), with regard to insanity, “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Id., at 405, 416-417. IV This consensus unquestionably reflects widespread judgment about the relative culpability of mentally retarded offenders, and the relationship between mental retardation and the penological purposes served by the death penalty. Additionally, it suggests that some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards. As discussed above, clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability. In light of these deficiencies, our death penalty jurisprudence provides two reasons consistent with the legislative consensus that the mentally retarded should be categorically excluded from execution. First, there is a serious question as to whether either justification that we have recognized as a basis for the death penalty applies to mentally retarded offenders. Gregg v. Georgia, 428 U. S. 153, 183 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.), identified “retribution and deterrence of capital crimes by prospective offenders” as the social purposes served by the death penalty. Unless the imposition of the death penalty on a mentally retarded person “measurably contributes to one or both of these goals, it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.” Enmund, 458 U. S., at 798. With respect to retribution — the interest in seeing that the offender gets his “just deserts” — the severity of the appropriate punishment necessarily depends on the culpability of the offender. Since Gregg, our jurisprudence has consistently confined the imposition of the death penalty to a narrow category of the most serious crimes. For example, in Godfrey v. Georgia, 446 U. S. 420 (1980), we set aside a death sentence because the petitioner’s crimes did not reflect “a consciousness materially more ‘depraved’ than that of any person guilty of murder.” Id., at 433. If the culpability 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. Thus, pursuant to our narrowing jurisprudence, which seeks to ensure that only the most deserving of execution are put to death, an exclusion for the mentally retarded is appropriate. With respect to deterrence — the interest in preventing capital crimes by prospective offenders — “it seems likely that ‘capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation,’ ” Enmund, 458 U. S., at 799. Exempting the mentally retarded from that punishment will not affect the “cold calculus that precedes the decision” of other potential murderers. Gregg, 428 U. S., at 186, Indeed, that sort of calculus is at the opposite end of the spectrum from behavior of mentally retarded offenders. The theory of deterrence in capital sentencing is predicated upon the notion that the increased severity of the punishment will inhibit criminal actors from carrying out murderous conduct. Yet it is the same cognitive and behavioral impairments that make these defendants less morally culpable — for example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses — that also make 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. Nor will exempting the mentally retarded from execution lessen the deterrent effect of the death penalty with respect to offenders who are not mentally retarded. Such individuals are unprotected by the exemption and will continue to face the threat of execution. Thus, executing the mentally retarded will not measurably further the goal of deterrence. The reduced capacity of mentally retarded offenders provides a second justification for a categorical rule making such offenders ineligible for the death penalty. The risk “that the death penalty will be imposed in spite of factors which may call for a less severe penalty,” Lockett v. Ohio, 438 U. S. 586, 605 (1978), is enhanced, not only by the possibility of false confessions, but also by the lesser ability of mentally retarded defendants to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors. Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes. As Penry demonstrated, moreover, reliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury. 492 U. S., at 323-325. Mentally retarded defendants in the aggregate face a special risk of wrongful execution. Our independent evaluation of the issue reveals no reason to disagree with the judgment of “the legislatures that have recently addressed the matter” and concluded that death is not a suitable punishment for a mentally retarded criminal. We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty. Construing and applying the Eighth Amendment in the light of our “evolving standards of decency,” we therefore conclude that such punishment is excessive and that the Constitution “places a substantive restriction on the State’s power to take the life” of a mentally retarded offender. Ford, 477 U. S., at 405. The judgment of the Virginia Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Initially, both Jones and Atkins were indicted for capital murder. The prosecution ultimately permitted Jones to plead guilty to first-degree murder in exchange for his testimony against Atkins. As a result of the plea, Jones became ineligible to receive the death penalty. Highly damaging to the credibility of Atkins’ testimony was its substantial inconsistency with the statement he gave to the police upon his arrest. Jones, in contrast, had declined to make an initial statement to the authorities. The American Association on Mental Retardation (AAMR) defines mental retardation as follows: “Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18.” Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th ed. 1992). The American Psychiatric Association’s definition is similar: “The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system.” Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed. 2000). “Mild” mental retardation is typically used to describe people with an IQ level of 50-55 to approximately 70. Id., at 42-43. The doctor interviewed Atkins, members of his family, and deputies at the jail where he had been incarcerated for the preceding 18 months. Dr. Nelson also reviewed the statements that Atkins had given to the police and the investigative reports concerning this case. Dr. Nelson administered the Weehsler Adult Intelligence Scales test (WAIS-III), the standard instrument in the United States for assessing intellectual functioning. AAMR, Mental Retardation, supra. The WAIS-III is scored by adding together the number of points earned on different subtests, and using a mathematical formula to convert this raw score into a scaled score. The test measures an intelligence range from 45 to 155. The mean score of the test is 100, which means that a person receiving a score of 100 is considered to have an average level of cognitive functioning. A. Kaufman & E. Liehtenberger, Essentials of WAIS-III Assessment 60 (1999). It is estimated that between 1 and 3 percent of the population has an IQ between 70 and 75 or lower, which is typically considered the cutoff IQ score for the intellectual function prong of the mental retardation definition. 2 Kaplan & Sadock’s Comprehensive Textbook of Psychiatry 2952 (B. Sadock & V. Sadock eds. 7th ed. 2000). At the sentencing phase, Dr. Nelson testified: “[Atkins’] full scale IQ is 59. Compared to the population at large, that means less than one percentile. . . . Mental retardation is a relatively rare thing. It’s about one percent of the population.” App. 274. According to Dr. Nelson, Atkins’ IQ score “would automatically qualify for Social Security disability income.” Id., at 280. Dr. Nelson also indicated that of the over 40 capital defendants that he had evaluated, Atkins was only the second individual who met the criteria for mental retardation. Id., at 310. He testified that, in his opinion, Atkins’ limited intellect had been a consistent feature throughout his life, and that his IQ score of 59 is not an “aberration, malingered result, or invalid test score.” Id., at 308. Dr. Samenow’s testimony was based upon two interviews with Atkins, a review of his school records, and interviews with correctional staff. He did not administer an intelligence test, but did ask Atkins questions taken from the 1972 version of the Weehsler Memory Scale. Id:, at 524-525, 529. Dr. Samenow attributed Atkins’ “academic performance [that was] by and large terrible” to the fact that he “is a person who chose to pay attention sometimes, not to pay attention others, and did poorly because he did not want to do what he was required to do.” Id., at 480-481. Thus, we have read the text of the Amendment to prohibit ail excessive punishments, as well as cruel and unusual punishments that may or may not be excessive. Jerome Bowden, who was identified as having mental retardation when he was 14 years old, was scheduled for imminent execution in Georgia in June 1986. The Georgia Board of Pardons and Paroles granted a stay following public protests over his execution. A psychologist selected by the State evaluated Bowden and determined that he had an IQ of 65, which is consistent with mental retardation. Nevertheless, the board lifted the stay and Bowden was executed the following day. The board concluded that Bowden understood the nature of his crime and his punishment and therefore that execution, despite his mental deficiencies, was permissible. See Montgomery, Bowden’s Execution Stirs Protest, Atlanta Journal, Oct. 13,1986, p. Al. Ga. Code Ann. §17-7-131(j) (Supp. 1988). The Anti-Drug Abuse Act of 1988, Pub. L. 100-690, §7001(0, 102 Stat. 4390, 21 U. S. C. § 848(0. Congress expanded the federal death penalty law in 1994. It again included a provision that prohibited any individual with mental retardation from being sentenced to death or executed. Federal Death Penalty Act of 1994,18 U. S. C. § 3596(c). Md. Ann. Code, Art. 27, § 412(f)(1) (1989). Ky. Rev. Stat. Ann. §§532.130, 532.135, 532.140; Term. Code Ann. §39-13-203; N. M. Stat. Ann. § 31-20A-2.1; Ark. Code Ann. §5-4-618; Colo. Rev. Stat. § 16-9-401; Wash. Rev. Code § 10.95.030; Ind. Code §§35-36-9-2 through 35-36-9-6; Kan. Stat. Ann. §21-4623. N. Y. Crim. Proc. Law § 400.27. However, New York law provides that a sentence of death “may not be set aside . . . upon the ground that the defendant is mentally retarded” if “the killing occurred while the defendant was confined or under custody in a state correctional facility or local correctional institution.” N. Y. Crim. Proc. Law §400.27.12(d) (McKinney 2001-2002 Interim Pocket Part). Neb. Rev. Stat. §28-105.01. S. D. Codified Laws § 23A-27A-26.1; Ariz. Rev. Stat. Ann. § 13-703.02; Conn. Gen. Stat. §53a-46a; Fla. Stat. §921.137; Mo. Rev. Stat. §565.030; 2001-346 N. C. Sess. Laws p. 45. House Bill No. 236 passed the Texas House on April 24, 2001, and the Senate version, S. 686, passed the Texas Senate on May 16, 2001. Governor Perry vetoed the legislation on June 17, 2001. In his veto statement, the Texas Governor did not express dissatisfaction with the principle of categorically excluding the mentally retarded from the death penalty. In fact, he stated: “We do not execute mentally retarded murderers today.” See Veto Proclamation for H. B. No. 236. Instead, his motivation to veto the bill was based upon what he perceived as a procedural flaw: “My opposition to this legislation focuses on a serious legal flaw in the bill. House Bill No. 236 would create a system whereby the jury and judge are asked to make the same determination based on two different sets of facts. ... Also of grave concern is the fact that the provision that sets up this legally flawed process never received a public hearing during the legislative process.” Ibid. Virginia Senate Bill No. 497 (2002); House Bill No. 957 (2002); see also Nevada Assembly Bill 353 (2001). Furthermore, a commission on capital punishment in Illinois has recently recommended that Illinois adopt a statute prohibiting the execution of mentally retarded offenders. Report of the Governor’s Commission on Capital Punishment 156 (Apr. 2002). A comparison to Stanford v. Kentucky, 492 U. S. 361 (1989), in which we held that there was no national consensus prohibiting the execution of juvenile offenders over age 15, is telling. Although we decided Stanford on the same day as Penry, apparently only two state legislatures have raised the threshold age for imposition of the death penalty. Mont. Code Ann. §45-5-102 (1999); Ind. Code §35-50-2-3 (1998). App. D to Brief for AAMR et al. as Amici Curiae. Those States are Alabama, Texas, Louisiana, South Carolina, and Virginia. D. Keyes, W. Edwards, & R. Perske, People with Mental Retardation are Dying Legally, 35 Mental Retardation (Feb. 1997) (updated by Death Penalty Information Center, available at http://www.advocacyone.org/deathpenalty.html (as visited June 18, 2002)). Additional evidence makes it clear that this legislative judgment reflects a much broader social and professional consensus. For example, several organizations with germane expertise have adopted official positions opposing the imposition of the death penalty upon a mentally retarded offender. See Brief for American Psychological Association et al. as Amici Curiae; Brief for AAMR et al. as Amici Curiae. In addition, representatives of widely diverse religious communities in the United States, reflecting Christian, Jewish, Muslim, and Buddhist traditions, have filed an amicus curiae brief explaining that even though their views about the death penalty differ, they all “share a conviction that the execution of persons with mental retardation cannot be morally justified.” Brief for United States Catholic Conference et al. as Amici Curiae 2. Moreover, within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved. Brief for European Union as Amicus Curiae 4. Finally, polling data shows a widespread consensus among Americans, even those who support the death penalty, that executing the mentally retarded is wrong. Bonner & Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N. Y. Times, Aug. 7, 2000, p. Al; App. B to Brief for AAMR et al. as Amici Curiae (appending approximately 20 state and national polls on the issue). Although these factors are by no means dis-positive, their consistency with the legislative evidence lends further support to our conclusion that there is a consensus among those who have addressed the issue. See Thompson v. Oklahoma, 487 U. S. 815, 830, 831, n. 31 (1988) (considering the views of “respected professional organizations, by other nations that share our Anglo-American heritage, and by the leading members of the Western European community”). The statutory definitions of mental retardation are not identical, but generally conform to the clinical definitions set forth in n. 3, supra. J. McGee & F. Menolascino, The Evaluation of Defendants with Mental Retardation in the Criminal Justice System, in The Criminal Justice System and Mental Retardation 55, 58-60 (R. Conley, R. Luckasson, & G. Bouthilet eds. 1992); Appelbaum & Appelbaum, Criminal-Justice Related Competencies in Defendants with Mental Retardation, 14 J. of Psychiatry & L. 483, 487-489 (Winter 1994). See, e. g., Ellis & Luckasson, Mentally Retarded Criminal Defendants, 53 Geo. Wash. L. Rev. 414, 429 (1985); Levy-Shiff, Kedem, & Sevillia, Ego Identity in Mentally Retarded Adolescents, 94 Am. J. Mental Retardation 541, 547 (1990); Whitman, Self Regulation and Mental Retardation, 94 Am. J. Mental Retardation 347, 360 (1990); Everington & Fulero, Competence to Confess: Measuring Understanding and Suggestibility of Defendants with Mental Retardation, 37 Mental Retardation 212, 212-213, 535 (1999) (hereinafter Everington & Fulero). See Everington & Fulero 212-213. Despite the heavy burden that the prosecution must shoulder in capital cases, we cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated. These exonerations have included at least one mentally retarded person who unwittingly confessed to a crime that he did not commit. See Baker, Death-Row Inmate Gets Clemency; Agreement Ends Day of Suspense, Washington Post, Jan. 15,1994, p. Al. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Blackmun delivered the opinion of the Court. In this appeal, the criminal abortion statutes recently enacted in Georgia are challenged on constitutional grounds. The statutes are §§ 26-1201 through 26-1203 of the State’s Criminal Code, formulated by Georgia Laws, 1968 Session, pp. 1249, 1277-1280. In Roe v. Wade, ante, p. 113, we today have struck down, as constitutionally defective, the Texas criminal abortion statutes that are representative of provisions long in effect in a majority of our States. The Georgia legislation, however, is different and merits separate consideration. I The statutes in question are reproduced as Appendix A, post, p. 202. As the appellants acknowledge, the 1968 statutes are patterned upon the American Law Institute’s Model Penal Code, § 230.3 (Proposed Official Draft, 1962), reproduced as Appendix B, post, p. 205. The ALI proposal has served as the model for recent legislation in approximately one-fourth of our States. The new Georgia provisions replaced statutory law that had been in effect for more than 90 years. Georgia Laws 1876, No. 130, § 2, at 113. The predecessor statute paralleled the Texas legislation considered in Roe v. Wade, supra, and made all abortions criminal except those necessary “to preserve the life” of the pregnant woman. The new statutes have not been tested on constitutional grounds in the Georgia state courts. Section 26-1201, with a referenced exception, makes abortion a crime, and § 26-1203 provides that a person convicted of that crime shall be punished by imprisonment for not less than one nor more than 10 years. Section 26-1202 (a) states the exception and removes from § 1201’s definition of criminal abortion, and thus makes noncriminal, an abortion “performed by a physician duly licensed” in Georgia when, “based upon his best clinical judgment... an abortion is necessary because: “(1) A continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health; or “(2) The fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect; or “(3) The pregnancy resulted from forcible or statutory rape.” Section 26-1202 also requires, by numbered subdivisions of its subsection (b), that, for an abortion to be authorized or performed as a noncriminal procedure, additional conditions must be fulfilled. These are (1) and (2) residence of the woman in Georgia; (3) reduction to writing of the performing physician’s medical judgment that an abortion is justified for one or more of the reasons specified by § 26-1202 (a), with written concurrence in that judgment by at least two other Georgia-licensed physicians, based upon their separate personal medical examinations of the woman; (4) performance of the abortion in a hospital licensed by the State Board of Health and also accredited by the Joint Commission on Accreditation of Hospitals; (5) advance approval by an abortion committee of not less than three members of the hospital’s staff; (6) certifications in a rape situation; and (7), (8), and (9) maintenance and confidentiality of records. There is a provision (subsection (c)) for judicial determination of the legality of a proposed abortion on petition of the judicial circuit law officer or of a close relative, as therein defined, of the unborn child, and for expeditious hearing of that petition. There is also a provision (subsection (e)) giving a hospital the right not to admit an abortion patient and giving any physician and any hospital employee or staff member the right, on moral or religious grounds, not to participate in the procedure. II On April 16, 1970, Mary Doe, 23 other individuals (nine described as Georgia-licensed physicians, seven as nurses registered in the State, five as clergymen, and two as social workers), and two nonprofit Georgia corporations that advocate abortion reform instituted this federal action in the Northern District of Georgia against the State’s attorney general, the district attorney of Fulton County, and the chief of police of the city of Atlanta. The plaintiffs sought a declaratory judgment that the Georgia abortion statutes were unconstitutional in their entirety. They also sought injunctive relief restraining the defendants and their successors from enforcing the statutes. Mary Doe alleged: (1) She was a 22-year-old Georgia citizen, married, and nine weeks'pregnant. She had three living children. The two older ones had been placed in a foster home because of Doe’s poverty and inability to care for them. The youngest, born July 19, 1969, had been placed for adoption. Her husband had recently abandoned her and she was forced to live with her indigent parents and their eight children. She and her husband, however, had become reconciled. He was a construction worker employed only sporadically. She had been a mental patient at the State Hospital. She had been advised that an abortion could be performed on her with less danger to her health than if she gave birth to the child she was carrying. She would be unable to care for or support the new child. (2) On March 25, 1970, she applied to the Abortion Committee of Grady Memorial Hospital, Atlanta, for a therapeutic abortion under § 26-1202. Her application was denied 16 days later, on April 10, when she was eight weeks pregnant, on the ground that her situation was not one described in § 26-1202 (a). (3) Because her application was denied, she was forced either to relinquish “her right to decide when and how many children she will bear” or to seek an abortion that was illegal under the Georgia statutes. This invaded her rights of privacy and liberty in matters related to family, marriage, and sex, and deprived her of the right to choose whether to bear children. This was a violation of rights guaranteed her by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The statutes also denied her equal protection and procedural due process and, because they were unconstitutionally vague, deterred hospitals and doctors from performing abortions. She sued “on her own behalf and on behalf of all others similarly situated.” The other plaintiffs alleged that the Georgia statutes “chilled and deterred” them from practicing their respective professions and deprived them of rights guaranteed by the First, Fourth, and Fourteenth Amendments. These plaintiffs also purported to sue on their own behalf and on behalf of others similarly situated. A three-judge district court was convened. An offer of proof as to Doe’s identity was made, but the court deemed it unnecessary to receive that proof. The case was then tried on the pleadings and interrogatories. The District Court, per curiam, 319 F. Supp. 1048 (ND Ga. 1970), held that all the plaintiffs had standing but that only Doe presented a justiciable controversy. On the merits, the court concluded that the limitation in the Georgia statute of the “number of reasons for which an abortion may be sought,” id., at 1056, improperly restricted Doe’s rights of privacy articulated in Griswold v. Connecticut, 381 U. S. 479 (1965), and of “personal liberty,” both of which it thought “broad enough to include the decision to abort a pregnancy,” 319 F. Supp., at 1055. As a consequence, the court held invalid those portions of §§ 26-1202 (a) and (b) (3) limiting legal abortions to the three situations specified; § 26-1202 (b)(6) relating to certifications in a rape situation; and § 26-1202 (c) authorizing a court test. Declaratory relief was granted accordingly. The court, however, held that Georgia’s interest in protection of health, and the existence of a “potential of independent human existence” (emphasis in original), id., at 1055, justified state regulation of “the manner of performance as well as the quality of the final decision to abort,” id., at 1056, and it refused to strike down the other provisions of the statutes. It denied the.request for an injunction, id., at 1057. Claiming that they were entitled to an injunction and to broader relief, the plaintiffs took a direct appeal pursuant to 28 U. S. C. § 1253. We postponed decision on jurisdiction to the hearing on the merits. 402 U. S. 941 (1971). The defendants also purported to appeal, pursuant to § 1253, but their appeal was dismissed for want of jurisdiction. 402 U. S. 936 (1971). We are advised by the appellees, Brief 42, that an alternative appeal on their part is pending in the United States Court of Appeals for the Fifth Circuit. The extent, therefore, to which the District Court decision was adverse to the defendants, that is, the extent to which portions of the Georgia statutes were held to be unconstitutional, technically is not now before us. Swarb v. Lennox, 405 U. S. 191, 201 (1972). III Our decision in Roe v. Wade, ante, p. 113, establishes (1) that, despite her pseudonym, we may accept as true, for this case, Mary Doe’s existence and her pregnant state on April 16, 1970; (2) that the constitutional issue is substantial; (3) that the interim termination of Doe’s and all other Georgia pregnancies in existence in 1970 has not rendered the case moot; and (4) that Doe presents a justiciable controversy and has standing to maintain the action. Inasmuch as Doe and her class are recognized, the question whether the other appellants — physicians, nurses, clergymen, social workers, and corporations— present a justiciable controversy and have standing is perhaps a matter of no great consequence. We conclude, however, that the physician-appellants, who are Georgia-licensed doctors consulted by pregnant women, also present a justiciable controversy and do have standing despite the fact that the record does not disclose that any one of them has been prosecuted, or threatened with prosecution, for violation of the State’s abortion statutes. The physician is the one against whom these criminal statutes directly operate in the event he procures an abortion that does not meet the statutory exceptions and conditions. The physician-appellants, therefore, assert a sufficiently direct threat of personal detriment. They should not be required to await and undergo a criminal prosecution as the sole means of seeking relief. Crossen v. Breckenridge, 446 F. 2d 833, 839-840 (CA6 1971); Poe v. Menghini, 339 F. Supp. 986, 990-991 (Kan. 1972). In holding that the physicians, while theoretically possessed of standing, did not present a justiciable controversy, the District Court seems to have relied primarily on Poe v. Ullman, 367 U. S. 497 (1961). There, a sharply divided Court dismissed an appeal from a state court on the ground that it presented no real controversy justifying the adjudication of a constitutional issue. But the challenged Connecticut statute, deemed to prohibit the giving of medical advice on the use of contraceptives, had been enacted in 1879, and, apparently with a single exception, no one had ever been prosecuted under it. Georgia’s statute, in contrast, is recent and not moribund. Furthermore, it is the successor to another Georgia abortion statute under which, we are told, physicians were prosecuted. The present case, therefore, is closer to Epperson v. Arkansas, 393 U. S. 97 (1968), where the Court recognized the right of a school teacher, though not yet charged criminally, to challenge her State’s anti-evolution statute. See also Griswold v. Connecticut, 381 U. S., at 481. The parallel claims of the nurse, clergy, social worker, and corporation-appellants are another step removed and as to them, the Georgia statutes operate less directly. Not being licensed physicians, the nurses and the others are in no position to render medical advice. They would be reached by the abortion statutes only in their capacity as accessories or as counselor-conspirators. We conclude that we need not pass upon the status of these additional appellants in this suit, for the issues are sufficiently and adequately presented by Doe and the physician-appellants, and nothing is gained or lost by the presence or absence of the nurses, the clergymen, the social workers, and the corporations. See Roe v. Wade, ante, at 127. IV The appellants attack on several grounds those portions of the Georgia abortion statutes that remain after the District Court decision: undue restriction of a right to personal and marital privacy; vagueness; deprivation of substantive and procedural due process; improper restriction to Georgia residents; and denial of equal protection. A. Roe v. Wade, supra, sets forth our conclusion that a pregnant woman does not have an absolute constitutional right to an abortion on her demand. What is said there is applicable here and need not be repeated. B. The appellants go on to argue, however, that the present Georgia statutes must be viewed historically, that is, from the fact that prior to the 1968 Act an abortion in Georgia was not criminal if performed to “preserve the life” of the mother. It is suggested that the present statute, as well, has this emphasis on the mother’s rights, not on those of the fetus. Appellants contend that it is thus clear that Georgia has given little, and certainly not first, consideration to the unborn child. Yet, it is the unborn child’s rights that Georgia asserts in justification of the statute. Appellants assert that this justification cannot be advanced at this late date. Appellants then argue that the statutes do not adequately protect the woman’s right. This is so because it would be physically and emotionally damaging to Doe to bring a child into her poor, “fatherless” family, and because advances in medicine and medical techniques have made it safer for a woman to have a medically induced abortion than for her to bear a child. Thus, “a statute that requires a woman to carry an unwanted pregnancy to term infringes not only on a fundamental right of privacy but on the right to life itself.” Brief 27. The appellants recognize that a century ago medical knowledge was not so advanced as it is today, that the techniques of antisepsis were not known, and that any abortion procedure was dangerous for the woman. To restrict the legality of the abortion to the situation where it was deemed necessary, in medical judgment, for the preservation of the woman’s life was only a natural conclusion in the exercise of the legislative judgment of that time. A State is not to be reproached, however, for a past judgmental determination made in the light of then-existing medical knowledge. It is perhaps unfair to argue, as the appellants do, that because the early focus was on the preservation of the woman’s life, the State’s present professed interest in the protection of embryonic and fetal life is to be downgraded. That argument denies the State, the right to readjust its views and emphases in the light of the advanced knowledge and techniques of the day. C. Appellants argue that § 26-1202 (a) of the Georgia statutes, as it has been left by the District Court’s decision, is unconstitutionally vague. This argument centers on the proposition that, with the District Court’s having struck down the statutorily specified reasons, it still remains a crime for a physician to perform an abortion except when, as § 26-1202 (a) reads, it is “based upon his best clinical judgment that an abortion is necessary.” The appellants contend that the word “necessary” does not warn the physician of what conduct is proscribed; that the statute is wholly without objective standards and is subject to diverse interpretation; and that doctors will choose to err on the side of caution and will be arbitrary. The net result of the District Court’s decision is that the abortion determination, so far as the physician is concerned, is made in the exercise of his professional, that is, his “best clinical,” judgment in the light of all the attendant circumstances. He is not now restricted to the three situations originally specified. Instead, he may range farther afield wherever his medical judgment, properly and professionally exercised, so dictates and directs him. The vagueness argument is set at rest by the decision in United States v. Vuitch, 402 U. S. 62, 71-72 (1971), where the issue was raised with respect to a District of Columbia statute making abortions criminal “unless the same were done as necessary for the preservation of the mother’s life or health and under the direction of a competent licensed practitioner of medicine.” That statute has been construed to bear upon psychological as well as physical well-being. This being so, the Court concluded that the term “health” presented no problem of vagueness. “Indeed, whether a particular operation is necessary for a patient’s physical or mental health is a judgment that physicians are obviously called upon to make routinely whenever surgery is considered.” Id., at 72. This conclusion is equally applicable here. Whether, in the words of the Georgia statute, “an abortion is necessary” is a professional judgment that the Georgia physician will be called upon to make routinely. We agree with the District Court, 319 F. Supp., at 1058, that the medical judgment may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman. D. The appellants next argue that the District Court should have declared unconstitutional three procedural demands of the Georgia statute: (1) that the abortion be performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals: (2) that the procedure be approved by the hospital staff abortion committee; and (3) that the performing physician’s judgment be confirmed by the independent examinations of the patient by two other licensed physicians. The appellants attack these provisions not only on the ground that they unduly restrict the woman’s right of privacy, but also on procedural due process and equal protection grounds. The physician-appellants also argue that, by subjecting a doctor’s individual medical judgment to committee approval and to confirming consultations, the statute impermissibly restricts the physician’s right to practice his profession and deprives him of due process. 1. JCAH accreditation. The Joint Commission on Accreditation of Hospitals is an organization without governmental sponsorship or overtones. No question whatever is raised concerning the integrity of the organization or the high purpose of the accreditation process. That process, however, has to do with hospital standards generally and has no present particularized concern with abortion as a medical or surgical procedure. In Georgia, there is no restriction on the performance of non-abortion surgery in a hospital not yet accredited by the JCAH so long as other requirements imposed by the State, such as licensing of the hospital and of the operating surgeon, are met. See Georgia Code §§ 88-1901 (a) and 88-1905 (1971) and 84-907 (Supp. 1971). Furthermore, accreditation by the Commission is not granted until a hospital has been in operation at least one year. The Model Penal Code, § 230.3, Appendix B hereto, contains no requirement for JCAH accreditation. And the Uniform Abortion Act (Final Draft, Aug. 1971), approved by the American Bar Association in February 1972, contains no JCAH-accredited hospital specification. Some courts have held that a JCAH-accreditation requirement is an overbroad infringement of fundamental rights because it does not relate to the particular medical problems and dangers of the abortion operation. E, g., Poe v. Menghini, 339 F. Supp., at 993-994. We hold that the JCAH-accreditation requirement does not withstand constitutional scrutiny in the present context. It is a requirement that simply is not “based on differences that are reasonably related to the purposes of the Act in which it is found.” Morey v. Doud, 354 U. S. 457, 465 (1957). This is not to say that Georgia may not or should not, from and after the end of the first trimester, adopt standards for licensing all facilities where abortions may be performed so long as those standards are legitimately related to the objective the State seeks to accomplish. The appellants contend that such a relationship would be lacking even in a lesser requirement that an abortion be performed in a licensed hospital, as opposed to a facility, such as a clinic, that may be required by the State to possess all the staffing and services necessary to perform an abortion safely (including those adequate to handle serious complications or other emergency, or arrangements with a nearby hospital to provide such services). Appellants and various amici have presented us with a mass of data purporting to demonstrate that some facilities other than hospitals are entirely adequate to perform abortions if they possess these qualifications. The State, on the other hand, has not presented persuasive data to show that only hospitals meet its acknowledged interest in insuring the quality of the operation and the full protection of the patient. We feel compelled to agree with appellants that the State must show more than it has in order to prove that only the full resources of a licensed hospital, rather than those of some other appropriately licensed institution, satisfy these health interests. We hold that the hospital requirement of the Georgia law, because it fails to exclude the first trimester of pregnancy, see Roe v. Wade, ante, at 163, is also invalid. In so holding we naturally express no opinion on the medical judgment involved in any particular case, that is, whether the patient's situation is such that an abortion should be performed in a hospital, rather than in some other facility. 2. Committee approval. The second aspect of the appellants’ procedural attack relates to the hospital abortion committee and to the pregnant woman’s asserted ladk of access to that committee. Relying primarily on Goldberg v. Kelly, 397 U. S. 254 (1970), concerning the termination of welfare benefits, and Wisconsin v. Constantineau, 400 U. S. 433 (1971), concerning the posting of an alcoholic’s name, Doe first argues that she was denied due process because she could not make a presentation to the committee. It is not clear from the record, however, whether Doe’s own consulting physician was or was not a member of the committee or did or did not present her case, or, indeed, whether she herself was or was not there. We see nothing in the Georgia statute that explicitly denies access to the committee by or on behalf of the woman. If the access point alone were involved, we would not be persuaded to strike down the committee provision on the unsupported assumption that access is not provided. Appellants attack the discretion the statute leaves to the committee. The most concrete argument they advance is their suggestion that it is still a badge of infamy “in many minds” to bear an illegitimate child, and that the Georgia system enables the committee members’ personal views as to extramarital sex relations, and punishment therefor, to govern their decisions. This approach obviously is one founded on suspicion and one that discloses a lack of confidence in the integrity of physicians. To say that physicians will be guided in their hospital committee decisions by their predilections on extramarital sex unduly narrows the issue to pregnancy outside marriage. (Doe’s own situation did not involve extramarital sex and its product.) The appellants’ suggestion is necessarily somewhat degrading to the conscientious physician, particularly the obstetrician, whose professional activity is concerned with the physical and mental welfare, the woes, the emotions, and the concern of his female patients. He, perhaps more than anyone else, is knowledgeable in this area of patient care, and he is aware of human frailty, so-called “error,” and needs. The good physician — despite the presence of rascals in the medical profession, as in all others, we trust that most physicians are “good”— will have sympathy and understanding for the pregnant patient that probably are not exceeded by those who participate in other areas of professional counseling. It is perhaps worth noting that the abortion committee has a function of its own. It is a committee of the hospital and it is composed of members of the institution’s medical staff. The membership usually is a changing one. In this way, its work burden is shared and is more readily accepted. The committee’s function is protective. It enables the hospital appropriately to be advised that its posture and activities are in accord with legal requirements. It is to be remembered that the hospital is an entity and that it, too, has legal rights and legal obligations. Saying all this, however, does not settle the issue of the constitutional propriety of the committee requirement. Viewing the Georgia statute as a whole, we see no constitutionally justifiable pertinence in the structure for the advance approval by the abortion committee. With regard to the protection of potential life, the medical judgment is already completed prior to the committee stage, and review by a committee once removed from diagnosis is basically redundant. We are not cited to any other surgical procedure made subject to committee approval as a matter of state criminal law. The woman’s right to receive medical care in accordance with her licensed physician’s best judgment and the physician’s right to administer it are substantially limited by this statutorily imposed overview. And the hospital itself is otherwise fully protected. Under § 26-1202 (e), the hospital is free not to admit a patient for an abortion. It is even free not to have an abortion committee. Further, a physician or any other employee has the right to refrain, for moral or religious reasons, from participating in the abortion procedure. These provisions obviously are in the statute in order to afford appropriate protection to the individual and to the denominational hospital. Section 26-1202 (e) affords adequate protection to the hospital, and little more is provided by the committee prescribed by §26-1202 (b)(5). We conclude that the interposition of the hospital abortion committee is unduly restrictive of the patient’s rights and needs that, at this point, have already been medically delineated and substantiated by her personal physician. To ask more serves neither the hospital nor the State. 3. Two-doctor concurrence. The third aspect of the appellants’ attack centers on the “time and availability of adequate medical facilities and personnel.” It is said that the system imposes substantial and irrational roadblocks and “is patently unsuited” to prompt determination of the abortion decision. Time, of course, is critical in abortion. Risks during the first trimester of pregnancy are admittedly lower than during later months. The appellants purport to show by a local study of Grady Memorial Hospital (serving indigent residents in Fulton and DeKalb Counties) that the “mechanics of the system itself forced... discontinuance of the abortion process” because the median time for the workup was 15 days. The same study shows, however, that 27% of the candidates for abortion were already 13 or more weeks pregnant at the time of application, that is, they were at the end of or beyond the first trimester when they made their applications. It is too much to say, as appellants do, that these particular persons “were victims of a system over which they [had] no control.” If higher risk was incurred because of abortions in the second rather than the first trimester, much of that risk was due to delay in application, and not to the alleged cumbersomeness of the system. We note, in passing, that appellant Doe had no delay problem herself; the decision in her case was made well within the first trimester. It should be manifest that our rejection of the accredited-hospital requirement and, more important, of the abortion committee’s advance approval eliminates the major grounds of the attack based on the system’s delay and the lack of facilities. There remains, however, the required confirmation by two Georgia-licensed physicians in addition to the recommendation of the pregnant woman’s own consultant (making under the statute, a total of six physicians involved, including the three on the hospital’s abortion committee). We conclude that this provision, too, must fall. The statute’s emphasis, as has been repetitively noted, is on the attending physician’s “best clinical judgment that an abortion is necessary.” That should be sufficient. The reasons for the presence of the confirmation step in the statute are perhaps apparent, but they are insufficient to withstand constitutional challenge. Again, no other voluntary medical or surgical procedure for which Georgia requires confirmation by two other physicians has been cited to us. If a physician is licensed by the State, he is recognized by the State as capable of exercising acceptable clinical judgment. If he fails in this, professional censure and deprivation of his license are available remedies. Required acquiescence by co-practitioners has no rational connection with a patient’s needs and unduly infringes on the physician’s right to practice. The attending physician will know when a consultation is advisable — the doubtful situation, the need for assurance when the medical decision is a delicate one, and the like. Physicians have followed this routine historically and know its usefulness and benefit for all concerned. It is still true today that “[r]eliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he [the physician] possesses the requisite qualifications.” Dent v. West Virginia, 129 U. S. 114, 122-123 (1889). See United States v. Vuitch, 402 U. S., at 71. E. The appellants attack the residency requirement of the Georgia law, §§ 26-1202 (b) (1) and (b)(2), as violative of the right to travel stressed in Shapiro v. Thompson, 394 U. S. 618, 629-631 (1969), and other cases. A requirement of this kind, of course, could be deemed to have some relationship to the availability of post-procedure medical care for the aborted patient. Nevertheless, we do not uphold the constitutionality of the residence requirement. It is not based on any policy of preserving state-supported facilities for Georgia residents, for the bar also applies to private hospitals and to privately retained physicians. There is no intimation, either, that Georgia facilities are utilized to capacity in caring for Georgia residents. Just as the Privileges and Immunities Clause, Const. Art. IV, § 2, protects persons who enter other States to ply their trade, Ward v. Maryland, 12 Wall. 418, 430 (1871); Blake v. McClung, 172 U. S. 239, 248-256 (1898), so must it protect persons who enter Georgia seeking the medical services that are available there. See Toomer v. Witsell, 334 U. S. 385, 396-397 (1948). A contrary holding would mean that a State could limit to its own residents the general medical care available within its borders. This we could not approve. F. The last argument on this phase of the case is one that often is made, namely, that the Georgia system is vio-lative of equal protection because it discriminates against the poor. The appellants do not urge that abortions should be performed by persons other than licensed physicians, so we have no argument that because the wealthy can better afford physicians, the poor should have non-physicians made available to them. The appellants acknowledged that the procedures are “nondiscriminatory in... express terms” but they suggest that they have produced invidious discriminations. The District Court rejected this approach out of hand. 319 F. Supp., at 1056. It rests primarily on the accreditation and approval and confirmation requirements, discussed above, and on the assertion that most of Georgia’s counties have no accredited hospital. We have set aside the accreditation, approval, and confirmation requirements, however, and with that, the discrimination argument collapses in all significant aspects. V The appellants complain, finally, of the District Court’s denial of injunctive relief. A like claim was made in Roe v. Wade, ante, p. 113. We declined decision there insofar as injunctive relief ivas concerned, and we decline it here. We assume that Georgia’s prosecutorial authorities will give full recognition to the judgment of this Court. In summary, we hold that the JCAH-accredited hospital provision and the requirements as to approval by the hospital abortion committee, as to confirmation by two independent physicians, and as to residence in Georgia are all violative of the Fourteenth Amendment. Specifically, the following portions of § 26-1202 (b), remaining after the District Court’s judgment, are invalid: (1) Subsections (1) and (2). (2) That portion of Subsection (3) following the words “[s]uch physician’s judgment is reduced to writing.” (3) Subsections (4) and (5). The judgment of the District Court is modified accordingly and, as so modified, is affirmed. Costs are allowed to the appellants. APPENDIX A TO OPINION OF THE COURT Criminal Code of Georgia (The italicized portions are those held unconstitutional by the District Court) CHAPTER 26-12. ABORTION. 26-1201. Criminal Abortion. Except as otherwise provided in section 26-1202, a person commits criminal abortion when he administers any medicine, drug or other substance whatever to any woman or when he uses any instrument or other means whatever upon any woman with intent to produce a miscarriage or abortion. 26-1202. Exception, (a) Section 26-1201 shall not apply to an abortion performed by a physician duly licensed to practice medicine and surgery pursuant to Chapter 84-9 or 84-12 of the Code of Georgia of 1933, as amended, based upon his best clinical judgment that an abortion is necessary because: {1) A continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health; or (2) The fetus would, very likely be born with a grave, permanent, and irremediable mental or physical defect; or (3) The pregnancy resulted from forcible or statutory rape. (b) No abortion is authorized or shall be performed under this section unless each of the following conditions is met: (1) The pregnant woman requesting the abortion certifies in writing under oath and subject to the penalties of false swearing to the physician who proposes to perform the abortion that she is a bona fide legal resident of the State of Georgia. (2) The physician certifies that he believes the woman is a bona fide resident of this State and that he has no information which should lead him to believe otherwise. (3) Such physiciau’s judgment is reduced to writing and concurred in by at least two other physicians duly licensed to practice medicine and surgery pursuant to Chapter 84^-9 of the Code of Georgia of 1933, as amended, who certify in writing that based upon their separate personal medical examinations of the pregnant woman, the abortion is, in their judgment, necessary because of one or more of the reasons enumerated above. (4) Such abortion is performed in a hospital licensed by the State Board of Health and accredited by the Joint Commission on Accreditation of Hospitals. (5) The performance of the abortion has been approved in advance by a committee of the medical staff of the hospital in which the operation is to be performed. This committee must be one established and maintained in accordance with the standards promulgated by the Joint Commission on the Accreditation of Hpspitals, and its approval must be by a majority vote of a membership of not less than three members of the hospital’s staff; the physician proposing to perform the operation may not be counted as a member of the committee for this purpose. (6) If the proposed abortion is considered necessary because the woman has been raped, the woman makes a written statement under oath, and subject to the penalties of false swearing, of the date Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

E

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Me. Justice Rehnquist delivered the opinion of the Court. The United States seeks review of a decision of the United States Court of Appeals for the Tenth Circuit that a proceeding for the assessment of a “civil penalty” under § 311 (b) (6) of the Federal Water Pollution Control Act (FWPCA) is a “criminal case” within the meaning of the Fifth Amendment’s guarantee against compulsory self-incrimination. We granted certiorari, 444 U. S. 939, and now reverse. I At the time this case arose, § 311 (b) (3) of the FWPCA prohibited the discharge into navigable waters or onto adjoining shorelines of oil or hazardous substances in quantities determined by the President to be “harmful.” Section 311 (b) (5) of the Act imposed a duty upon “any person in charge of a vessel or of an onshore facility or an offshore facility” to report any discharge of oil or a hazardous substance into navigable waters to the “appropriate agency” of the United States Government. Should that person fail to supply such notification, he or she was liable to a fine of not more than $10,000 or imprisonment of not more than one year. Section 311 (b)(5) also provided for a form of “use immunity,” specifying that “[notification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement.” 33 U. S. C. § 1321 (b)(5). Section 311 (b) (6) provided for the imposition of a “civil penalty” against “[a]ny owner or operator of any vessel, onshore facility, or offshore facility from which oil or a hazardous substance is discharged in violation” of the Act. In 1975, that subsection called for a penalty of up to $5,000 for each violation of the Act. In assessing penalties, the Secretary of the appropriate agency was to take into account “the appropriateness of such penalty to the size of the business or of the owner or operator charged, the effect on the owner or operator’s ability to continue in business, and the gravity of the violation. . . .” 33 TJ. S. C. § 1321 (b)(6). According to § 311 (k) of the Act, funds collected from the assessment of penalties under § 311 (b) (6) were to be paid into a “revolving fund” together with “other funds received . . . under this section” and any money appropriated to the revolving fund by Congress. See 33 U. S. C. § 1321 (k). Money contained in this fund was to be used to finance the removal, containment, or dispersal of oil and hazardous substances discharged into navigable waters and to defray the costs of administering the Act. 33 U. S. C. § 1321 (?). Another section of the Act allowed the United States Government to collect the costs of removal, containment, or dispersal of a discharge from the person or corporation responsible for that discharge in cases where that person or corporation had been identified. 33 U. S. C. § 1321 (f). On or about March 23, 1975, oil escaped from an oil retention pit at a drilling facility located near Enid, Okla., and eventually found its way into Boggie Creek, a tributary of the Arkansas River system. At the time of the discharge, the premises were being leased by respondent L. 0. Ward, who was doing business as L. 0. Ward Oil & Gas Operations. On April 2, 1975, respondent Ward notified the regional office of the Environmental Protection Agency (EPA) that a discharge of oil had taken place. Ward later submitted a more complete written report of the discharge, which was in turn forwarded to the Coast Guard, the agency responsible for assessing civil penalties under §311 (b)(6). After notice and opportunity for hearing, the Coast Guard assessed a civil penalty against respondent in the amount of $500. Respondent filed an administrative appeal from this ruling, contending, inter alia, that the reporting requirements of § 311 (b)(5) of the Act violated his privilege against compulsory self-incrimination. The administrative appeal was denied. On April 13, 1976, Ward filed suit in the United States District Court for the Western District of Oklahoma, seeking to enjoin the Secretary of Transportation, the Commandant of the Coast Guard, and the Administrator of EPA from enforcing §§ 311 (b)(5) and (6) and from collecting the penalty of $500. On June 4, 1976, the United States filed a separate suit in the same court to collect the unpaid penalty. The District Court eventually ordered the two suits consolidated for trial. Prior to trial, the District Court rejected Ward’s contention that the reporting requirements of §311 (b)(5), as used to support ¿ civil penalty under § 311 (b)(6), violated his right against compulsory self-incrimination. The case was tried to a jury, which found that Ward’s facility did, in fact, spill oil into Boggie Creek. The District Court, however, reduced Ward’s penalty to $250 because of the amount of oil that had spilled and because of its belief that Ward had been diligent in his attempts to clean up the discharge after it had been discovered. The United States Court of Appeals for the Tenth Circuit reversed. Ward v. Coleman, 598 F. 2d 1187 (1979). Although admitting that Congress had labeled the penalty provided for in § 311 (b)(6) as civil and that the use of funds collected under that section to finance the administration of the Act indicated a “remedial” purpose for the provision, the Court of Appeals tested the statutory scheme against the standards set forth in Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168-169 (1963), and held that §311 (b)(6) was sufficiently punitive to intrude upon the Fifth Amendment’s protections against compulsory self-incrimination. It therefore reversed and remanded for further proceedings in the collection suit. II The distinction between a civil penalty and a criminal penalty is of some constitutional import. The Self-Incrimination Clause of the Fifth Amendment, for example, is expressly limited to “any criminal case.” Similarly, the protections provided by the Sixth Amendment are available only in “criminal prosecutions.” Other constitutional protections, while not explicitly limited to one context or the other, have been so limited by decision of this Court. See, e. g., Helvering v. Mitchell, 303 U. S. 391, 399 (1938) (Double Jeopardy Clause protects only against two criminal punishments); United States v. Regan, 232 U. S. 37, 47-48 (1914) (proof beyond a reasonable doubt required only in criminal cases). This Court has often stated that the question whether a particular statutorily defined penalty is civil or criminal is a matter of statutory construction. See, e. g., One Lot Emerald Cut Stones v. United States, 409 U. S. 232, 237 (1972); Helvering v. Mitchell, supra, at 399. Our inquiry in this regard has traditionally proceeded on two levels. First, we have set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. See One Lot Emerald Cut Stones v. United States, supra, at 236-237. Second, where Congress has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to negate that intention. See Flemming v. Nestor, 363 U. S. 603, 617-621 (1960). In regard to this latter inquiry, we have noted that “only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground.” Id., at 617. See also One Lot Emerald Cut Stones v. United States, supra, at 237; Rex Trailer Co. v. United States, 350 U. S. 148, 154 (1956). As for our first inquiry in the present case, we believe it quite clear that Congress intended to impose a civil penalty upon persons in Ward’s position. Initially, and importantly, Congress labeled the sanction authorized in §311 (b)(6) a “civil penalty,” a label that takes on added significance given its juxtaposition with the criminal penalties set forth in the immediately preceding subparagraph, § 311 (b) (5). Thus, we have no doubt that Congress intended to allow imposition of penalties under § 311 (b) (6) without regard to the procedural protections and restrictions available in criminal prosecutions. We turn then to consider whether Congress, despite its manifest intention to establish a civil, remedial mechanism, nevertheless provided for sanctions so punitive as to “trans-for[m] what was clearly intended as a civil remedy into a criminal penalty.” Rex Trailer Co. v. United States, supra, at 154. In making this determination, both the District Court and the Court of Appeals found it useful to refer to the seven considerations listed in Kennedy v. Mendoza-Martinez, supra, at 168-169. This list of considerations, while certainly neither exhaustive nor dispositive, has proved helpful in our own consideration of similar questions, see, e. g., Bell v. Wolfish, 441 U. S. 520, 537-538 (1979), and provides some guidance in the present case. Without setting forth here our assessment of each of the seven Mendoza-Martinez factors, we think only one, the fifth, aids respondent. That is a consideration of whether “the behavior to which [the penalty] applies is already a crime.” 372 U. S., at 168-169. In this regard, respondent contends that § 13 of the Rivers and Harbors Appropriation Act of 1899, 33 U. S. C. § 407, makes criminal the precise conduct penalized in the present case. Moreover, respondent points out that at least one federal court has held that § 13 of the Rivers and Harbors Appropriation Act defines a “strict liability crime,” for which the Government need prove no scienter. See United States v. White Fuel Corp., 498 F. 2d 619 (CA1 1974). According to respondent, this confirms the lower court’s conclusion that this fifth factor “falls clearly in favor of a finding that [§ 311 (b)(6)] is criminal in nature.” 598 F. 2d, at 1193. While we agree that this consideration seems to point toward a finding that § 311 (b)(6) is criminal in nature, that indication is not as strong as it seems at first blush. We have noted on a number of occasions that “Congress may impose both a criminal and a civil sanction in respect to the same act or omission.” Helvering v. Mitchell, supra, at 399; One Lot Emerald Cut Stones v. United States, supra, at 235. Moreover, in Helvering, where we held a 50% penalty for tax fraud to be civil, we found it quite significant that “the Revenue Act of 1928 contains two separate and distinct provisions imposing sanctions,” and that “these appear in different parts of the statute. . . .” 303 U. S., at 404. See also One Lot Emerald Cut Stones v. United States, supra, at 236-237. To the extent that we found significant the separation of civil and criminal penalties within the same statute, we believe that the placement of criminal penalties in one statute and the placement of civil penalties in another statute enacted 70 years later tends to dilute the force of the fifth Mendoza-Martinez criterion in this case. In sum, we believe that the factors set forth in Mendoza-Martinez, while neither exhaustive nor conclusive on the issue, are in no way sufficient to render unconstitutional the congres-sionai classification of the penalty established in § 311 (b)(6) as civil. Nor are we persuaded by any of respondent's other arguments that he has offered the “clearest proof” that the penalty here in question is punitive in either purpose or effect. Ill Our conclusion that § 311 (b) (6) does not trigger all the protections afforded by the Constitution to a criminal defendant does not completely dispose of this case. Respondent asserts that, even if the penalty imposed upon him was not sufficiently criminal in nature to trigger other guarantees, it was “quasi-criminal,” and therefore sufficient to implicate the Fifth Amendment’s protection against compulsory self-in-erimination. He relies primarily in this regard upon Boyd v. United States, 116 U. S. 616 (1886), and later cases quoting its language. In Boyd, appellants had been indicted under § 12 of an “Act to amend the customs revenue laws and to repeal moieties,” for fraudulently attempting to deprive the United States of lawful customs duties payable on certain imported merchandise. According to the statute in quéstion, a person found in violation of its provisions was to be “fined in any sum not exceeding $5,000 nor less than $50, or be imprisoned for any time not exceeding two years, or both; and, in addition to such fine, such merchandise shall be forfeited.” 116 U. S., at 617. Despite the pending indictment, appellants filed a claim for the goods held by the United States. In response, the prosecutor obtained an order of the District Court requiring appellants to produce the invoice covering the goods at issue. Appellants objected that such an order violated the Fourth and Fifth Amendments by subjecting them to an unreasonable search and seizure and by requiring them to act as witnesses against themselves. This Court found the Fifth Amendment applicable, even though the action in question was one contesting the forfeiture of certain goods. According to the Court: “We are . . . clearly of opinion that proceedings instituted for the purpose of declaring the forfeiture of a man’s property by reason of offences committed by him, though they may be civil in form, are in their nature criminal.” Id., at 633-634. While at this point in its opinion, the Court seemed to limit its holding to proceedings involving the forfeiture of property, shortly after the quoted passage it broadened its reasoning in a manner that might seem to apply to the present case: “As, therefore, suits for 'penalties and forfeitures incurred by the commission of offences against the law, are of this quasi-criminal nature, we think that they are within the reason of criminal proceedings for all the purposes of the Fourth Amendment of the Constitution, and of that portion of the Fifth Amendment which declares that no person shall be compelled in any criminal case to be a witness against himself. . . Id., at 634 (emphasis added). Seven years later, this Court relied primarily upon Boyd in holding that a proceeding resulting in a “forfeit and penalty” of $1,000 for violation of an Act prohibiting the employment of' aliens was sufficiently criminal to trigger the protections of the Self-Incrimination Clause of the Fifth Amendment. Lees v. United States, 150 U. S. 476 (1893). More recently, in One 1958 Plymouth Sedan v. Pennsylvania, 380 U. S. 693 (1965), and United States v. United States Coin & Currency, 401 U. S. 715 (1971), this Court applied Boyd to proceedings involving the forfeiture of property for alleged criminal activity. Plymouth Sedan dealt with the applicability of the so-called exclusionary rule to a proceeding brought by the State of Pennsylvania to secure the forfeiture of a car allegedly involved in the illegal transportation of liquor. Coin & Currency involved the applicability of the Fifth Amendment privilege against compulsory self-incrimination in a proceeding brought by the United States to secure forfeiture of $8,674 found in the possession of a gambler at the time of his arrest. Read broadly, Boyd might control the present case. This Court has declined, however, to give full scope to the reasoning and dicta in Boyd, noting on at least one occasion that “[s]everal of Boyd’s express or implicit declarations have not stood the test of time.” Fisher v. United States, 425 U. S. 391, 407 (1976). In United States v. Regan, 232 U. S. 37 (1914), for example, we declined to apply Boyd’s classification of penalties and forfeitures as criminal in a case where a defendant assessed with a $1,000 penalty for violation of the Alien Immigration Act claimed that he was entitled to have the Government prove its case beyond a reasonable doubt. Boyd and Lees, according to Regan, were limited in scope to the Fifth Amendment’s guarantee against compulsory self-incrimination, which “is of broader scope than are the guarantees in Art. III and the Sixth Amendment governing trials and criminal prosecutions.” 232 U. S., at 50. See also Helvering v. Mitchell, 303 U. S., at 400, n. 3. Similarly, in Hepner v. United States, 213 U. S. 103 (1909), this Court upheld the entry of a directed verdict against the appellant under a statute similar to that examined in Lees. According to Hepner, “the Lees and Boyd cases do not modify or disturb but recognize the general rule that penalties may be recovered by civil actions, although such actions may be so far criminal in their nature that the defendant cannot be compelled to testify against himself in such actions in respect to any matters involving, or that may involve, his being guilty of a criminal offense.” Id., at 112. The question before us, then, is whether the penalty imposed in this case, although clearly not “criminal” enough to trigger the protections of the Sixth Amendment, the Double Jeopardy Clause of the Fifth Amendment, or the other procedural guarantees normally associated with criminal prosecutions, is nevertheless “so far criminal in [its] nature” as to trigger the Self-Incrimination Clause of the Fifth Amendment. Initially, we note that the penalty and proceeding considered in Boyd were quite different from those considered in this case. Boyd dealt- with forfeiture of property, a penalty that had absolutely no correlation to any damages sustained by society or to the cost of enforcing the law. See also Lees v. United States, supra (fixed monetary penalty) ; One 1958 Plymouth Sedan v. Pennsylvania, supra (forfeiture) ; United States v. United States Coin & Currency, supra (forfeiture). Here the penalty is much more analogous to traditional civil damages. Moreover, the statute under scrutiny in Boyd listed forfeiture along with fine and imprisonment as one possible punishment for customs fraud, a fact of some significance to the Boyd Court. See 116 U. S., at 634. Here, as previously stated, the civil remedy and the criminal remedy are contained in separate statutes enacted 70 years apart. The proceedings in Boyd also posed a danger that the appellants would prejudice themselves in respect to later criminal proceedings. See Hepner v. United States, supra, at 112. Here, respondent is protected by § 311 (b) (5), which expressly provides that “[notification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except [for] prosecution for perjury or for giving a false statement.” 33 U. S. C. § 1321 (b)(5). More importantly, however, we believe that in the light of what we have found to be overwhelming evidence that Congress intended to create a penalty civil in all respects and quite weak evidence of any countervailing punitive purpose or effect it would be quite anomalous to hold that § 311 (b) (6) created a criminal penalty for the purposes of the Self-Incrimination Clause but a civil penalty for all other purposes. We do not read Boyd as requiring a contrary conclusion. IV We conclude that the penalty imposed by Congress was civil, and that the proceeding in which it was imposed was not “quasi-criminal” as that term is used in Boyd v. United States, supra. The judgment of the Court of Appeals is therefore Reversed. Section 311 was amended by the Clean Water Act of 1977, Pub. L. 95-217, 91 .Stat. 1566, and the Federal Water Pollution Control Act Amendments of 1978, Pub. L. 95-576, 92 Stat. 2468. Except as noted, those amendments have no bearing on the present case.' See nn. 2 and 4, infra. Section 311 (b) (3) was amended by the Federal Water Pollution Control Act Amendments of 1978, Pub. L. 95-576, 92 Stat. 2468, to prohibit the discharge of oil and hazardous substances “in such quantities as may be harmful” (emphasis added), as determined by the President. At the time in question, § 311 (b) (5) read in full: “Any person in charge of a vessel or of an onshore facility or an offshore facility shall, as soon as he has knowledge of any discharge of oil or a hazardous substance from such vessel or facility in violation of paragraph (3) of this subsection, immediately notify the appropriate agency of the United States Government of such discharge. Any such person who fails to notify immediately such agency of such discharge shall, upon conviction, be fined not more than $10,000, or imprisoned for not more than one year, or both. Notification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement.” Section 311 (b) (6) was amended by the Federal Water Pollution Control Act Amendments of 1978, Pub. L. 95-576, 92 Stat. 2468, to authorize civil penalties of up to $50,000 per offense, or up to $250,000 per offense in cases where the discharge was the result of willful negligence or misconduct. At the time of the discharge in this case, § 311 (b)(6), as set forth in 33 U. S. C. §1321 (b)(6), read: “Any owner or operator of any vessel, onshore facility, or offshore facility from which oil or a hazardous substance is discharged in violation of paragraph (3) of this subsection shall be assessed a civil penalty by the Secretary of the department in which the Coast Guard is operating of not more than $5,000 for each offense. No penalty shall be assessed unless the owner or operator charged shall have been given notice and opportunity for a hearing on such charge. Each violation is a separate offense. Any such civil penalty may be compromised by such Secretary. In determining the amount of the penalty, or the amount agreed upon in compromise, the appropriateness of such penalty to the size of the business of the owner or operator charged, the effect on the owner or operator’s ability to continue in business, and the gravity of the violation, shall be considered by such Secretary. The Secretary of the Treasury shall withhold at the request of such Secretary the clearance required by section 91 of Title 46 of any vessel the owner or operator of which is subject to the foregoing penalty. Clearance may be granted in such cases upon the filing of a bond or other surety satisfactory to such Secretary.” All parties concede that Boggie Creek is a “navigable water” within the meaning of 33 U. S. C. § 1362 (7). The standards set forth were “[w]hether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment— retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned. . . .” 372 U. S., at 168-169 (footnotes omitted). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Me. Justice Blackmun delivered the opinion of the Court. Petitioner Oliver T. Fein is a doctor of medicine. In February 1969 he filed this pre-induction suit in the United States District Court for the Southern District of New York. Jurisdiction was asserted under the federal-question statute, 28 U. S. C. § 1331, under the civil rights statute, 28 U. S. C. § 1343, and under the federal-officer statute, 28 U. S. C. § 1361. Fein challenged, on due process grounds, the constitutionality of his Selective Service appeal procedures and sought declaratory and injunctive relief that would prevent his induction into military service. The defendants are Fein’s local board at Yonkers, New York, the Appeal Board for the Southern District, the State Selective Service Director, and the National Appeal Board. In an unreported memorandum decision, the District Court dismissed the complaint for want of jurisdiction. A divided panel of the Second Circuit affirmed. 430 F. 2d 376 (1970). Certiorari was granted, 401 U. S. 953 (1971), so that this Court might consider the important question whether § 10 (b) (3) of the Military Selective Service Act of 1967, 50 U. S. C. App. § 460 (b) (3), permits this pre-induction challenge to Selective Service appeal procedures. I Fein, born May 5, 1940, registered with his Yonkers local board at age 18. He was assigned a II-S student deferment during his undergraduate years at Swarth-more College and, subsequently, during the period of his attendance at Case-Western Reserve University School of Medicine. Upon graduation from medical school, Fein was assigned a II-A occupational deferment because of his internship at Cleveland Metropolitan General Hospital. In September 1967, while still an intern, Fein wrote his local board “to declare myself a conscientious objector to war and the institution which propagates war, the military.” He requested and received SSS Form 150 for conscientious objectors. He promptly completed and returned the form to the local board. In the form Fein stated: He believes in a Supreme Being. The beliefs from which his conscientious objection springs include the concepts that “human beings are primarily 'good,’ ” that this goodness “can only be realized, if human beings are allowed to fulfill their potential,” and that “all human beings are fundamentally equal, in terms of their value as human beings.” War violates “this essential being in all men . . . .” It “fosters irresponsibility for inhuman and cruel acts.” It “demands a style of fife, which is violent and hierarchical. It curbs and extinguishes rather than expands man’s potential.” The “substance of my beliefs stems from this common foundation of all religions. Thus my beliefs are not merely a personal moral code, but are ideals which emanate from centuries of religious tradition.” He attributes the shaping of his beliefs to four principal sources: his parents, the church he formerly belonged to (a Lutheran body), the civil rights movement, and medicine. He believes “in the power and values of moral and ethical force,” but rejects “violent force” except perhaps in defense of self or of a loved one. His ideals were not articulated by age 18, but he began to formulate them at Swarthmore. Then followed a trip to the South; his break with his church ; a summer in Germany where he learned of “biased American journalism about Cuba”; his helping organize a trip by students to Cuba; his interest in SNCC; his work in the slums of San Francisco; his settling in Cleveland’s “Negro ghetto” during his first year at medical school; his then “full commitment to non-violence”; his contact with Students for a Democratic Society, which provided “a framework for working out my ideals about justice and equality”; and his “commitment to cooperative living and the poor community [which] stands as a mature expression of my beliefs.” Upon receiving Fein’s Form 150 and letters supportive of his claim, the local board invited him to appear personally before it. He did so on November 15, 1967. After the interview the board denied him a 1-0 classification “at this time.” Inasmuch as Fein then held his II-A classification, this action by the board was consistent with Selective Service Regulation 32 CFR § 1623.2 providing that a registrant be placed in the lowest class for which he is eligible. In February 1968, however, Fein was reclassified I-A. He immediately asked for another personal appearance before the board. The request was granted and he appeared on May 27. The board then classified him as 1-0 and thus gave him his desired conscientious objector classification. On June 4 the State Director, pursuant to 32 CFR § 1626.1, wrote the appeal board requesting an appeal and stating, “It is our opinion that the registrant would not qualify for a. 1-0 classification as a conscientious objector.” Notice of this was given Dr. Fein by mail. Fein then wrote seeking “a statement indicating the basis for the State Director’s appeal” and an opportunity to reply. No explanation was forthcoming. The local board forwarded the file to the appeal board. Accompanying the file was a so-called “brief.” This, as petitioner has conceded, was merely a summary of the file prepared by a lay employee of the board. The appeal board, by a unanimous 4-0 vote on June 20, classified Dr. Fein I-A and thus rejected his claim to conscientious objector status. The board stated no reasons for its decision. Fein was notified of his reclassification. Under 32 CFR § 1627.3 a registrant was not entitled to take an appeal to the presidential, or national, appeal board from an adverse classification by the state appeal board made by a unanimous vote. Fein was in this position. Accordingly, he wrote the National Director of Selective Service in July and asked that the Director appeal on his behalf under 32 CFR § 1627.1 (a). Fein’s letter to the Director was detailed. It emphasized his above-stated beliefs and the way of life to which those beliefs had guided him. “It should be clear, that I am willing to serve my country, but only in activities consistent with my conscience.” Fein outlined the administrative proceedings and listed five claimed inequities: (1) the appeal board’s rejection, upon the appeal by the State Director, of the local board’s classification; (2) the failure of the Director to state the basis for his challenge; (3) the absence of an opportunity to submit supplemental information before the file was forwarded; (4) the absence of an opportunity to rebut the State Director’s decision to take an appeal; and (5) the absence of an opportunity for a personal appearance before the appeal board. On July 31 Fein was ordered to report for induction September 6. The National Director, however, complied with Fein’s request and noted an appeal. Fein’s outstanding induction order was canceled. He again asked the State Director for a statement of reasons. He was now advised that in the State Director’s opinion he did not qualify for a Class 1-0 deferment and that the decision to appeal “was based upon the information contained in [his] selective service file.” On November 26, 1968, the national board, by a vote of 3-0, classified Dr. Fein I-A. No reason for this action was stated. No new order that Fein report for induction has been issued. Fein then instituted this suit. The complaint alleged that the statute and regulations governing Fein’s classification and appeal violated the Due Process Clause of the Fifth Amendment in that they did not provide for a statement of reasons to the registrant for the State Director’s decision to appeal, or for the appeal board’s subsequent decision denying Fein a 1-0 classification. It also alleged that the defendants acted unconstitutionally by failing to provide Fein with the statements of reasons, by failing to permit him to submit additional material for consideration by the appeal boards, and by refusing him an opportunity to rebut the State Director’s decision to appeal. The District Court did not reach the merits of the constitutional claims. While expressing concern about Fein’s ability to establish jurisdiction, the court assumed, arguendo, that he had done so, but then concluded that the suit was barred by § 10 (b)(3). The Second Circuit affirmed, 430 F. 2d, at 377-380, relying, as did the District Court, upon Oestereich v. Selective Service Board, 393 U. S. 233 (1968); Clark v. Gabriel, 393 U. S. 256 (1968); and Boyd v. Clark, 287 F. Supp. 561 (SDNY 1968), aff’d, 393 U. S. 316 (1969). One judge, in separate concurrence, 430 F. 2d, at 380, also thought that Fein had failed to establish the jurisdictional amount required under 28 U. S. C. § 1331. The third judge, citing the same cases as did the majority, dissented on the statutory issue; on the merits he would have ruled in Fein’s favor. 430 F. 2d, at 380-388. II The case pivots, of course, upon the meaning and reach of § 10 (b)(3), and this Court’s decisions in Oestereich, Gabriel, and Boyd, all supra, and in Breen v. Selective Service Board, 396 U. S. 460 (1970). Section 10 (b) (3) states flatly that a classification decision of the local board “shall be final, except where an appeal is authorized . . .” and that the classification decision on appeal also “shall be final. . . .” It further provides, “No judicial review shall be made of the classification or processing of any registrant ... except as a defense to a criminal prosecution . . . after the registrant has responded either affirmatively or negatively to an order to report for induction . . . .” Even then, the review “shall go to the question of the jurisdiction . . . only when there is no basis in fact for the classification The finality language appeared in conscription statutes prior to the 1967 Act. See Selective Draft Act of May 18, 1917, §4, 40 Stat. 80; Selective Training and Service Act of 1940, § 10 (a)(2), 54 Stat. 893; and Selective Service Act of 1948, §10 (b)(3), 62 Stat. 619. The Court construed this finality language, however, as indicating a congressional intent to restrict only the scope of judicial review and not to deprive the registrant of all access to the courts. See, for example, Estep v. United States, 327 U. S. 114 (1946), and McKart v. United States, 395 U. S. 185 (1969). But judicial relief was confined to the “no basis in fact” situation. Estep, supra, at 122-123; McKart, supra, at 196. The “except” clause and the “no basis in fact” language came into § 10 (b) (3) with the- 1967 statute by way of prompt congressional reaction provoked by the Second Circuit’s decision in Wolff v. Selective Service Local Bd., 372 F. 2d 817 (1967). See H. R. Rep. No. 267, 90th Cong., 1st Sess., 30-31; 113 Cong. Rec. 15426. Section 10 (b)(3), as so amended, was promptly challenged. In Oestereich the Court refrained from striking down the statute on constitutional grounds. It held, however, that pre-induction judicial review was available to that petitioner who, as a divinity student, claimed his local board had wrongfully denied him a statutory exemption from military service. To rule otherwise “is to construe the Act with unnecessary harshness.” And, “No one, we believe, suggests that § 10 (b) (3) can sustain a literal reading.” This construction, it was said, leaves the section “unimpaired in the normal operations of the Act.” 393 U. S., at 238. See Gutknecht v. United States, 396 U. S. 295, 303 (1970), where reference was made to the “unusual circumstances” of Oestereich. In the companion Gabriel case, on the other hand, the registrant was asserting a conscientious objector claim. The Court said: “Oestereich, as a divinity student, was by statute unconditionally entitled to exemption. Here, by contrast, there is no doubt of the Board’s statutory authority to take action which appellee challenges, and that action inescapably involves a determination of fact and an exercise of judgment. . . . To allow pre-induction judicial review of such determinations would be to permit precisely the kind of ‘litigious interruptions of procedures to provide necessary military manpower' (113 Cong. Rec. 15426 (report by Senator Russell on Conference Committee action)) which Congress sought to prevent when it enacted § 10 (b)(3).” 393 U. S., at 258-259. The constitutionality of the statute again was upheld. Id., at 259. Mr. Justice Douglas, separately concurring, noted hypothetical fact situations as to which he might take a different view and then observed: “But in my view it takes the extreme case where the Board can be said to flout the law, as it did in Oestereich v. Selective Service Bd., [393 U. S. 233], to warrant pre-induction review of its actions.” 393 U. S., at 260. Oestereich was complemented by Breen a year later with respect to a registrant statutorily entitled to a deferment rather than to an exemption. See also Kolden v. Selective Service Board, 397 U. S. 47 (1970). Finally, pre-induction review was denied under § 10 (b)(3) in Boyd v. Clark, 287 F. Supp. 561 (SDNY 1968), a decision affirmed here, 393 U. S. 316 (1969), with only a single reference to Gabriel, decided just four weeks before. In Boyd, four registrants, each classified I-A, challenged student deferment on the ground that it discriminated against those financially unable to attend college. They did not otherwise contest their own I-A classifications. Thus Oestereich, Gabriel, Breen, and Boyd together establish the principles (a) that § 10 (b) (3) does not foreclose pre-induction judicial review in that rather rare instance where administrative action, based on reasons unrelated to the merits of the claim to exemption or deferment, deprives the registrant of the classification to which, otherwise and concededly, he is entitled by statute, and (b) that § 10 (b) (3) does foreclose pre-induction judicial review in the more common situation where the board, authoritatively, has used its discretion and judgment in determining facts and in arriving at a classification for the registrant. In the latter case the registrant’s judicial review is confined — and constitutionally so — to the situations where he asserts his defense in a criminal prosecution or where, after induction, he seeks a writ of habeas corpus. By these cases the Court accommodated constitutional commands with the several provisions of the Military Selective Service Act and the expressed congressional intent to prevent litigious interruption of the Selective Service process. Ill These principles do not automatically decide Fein’s case. The doctor, unlike Oestereich and unlike Breen, cannot and does not claim a statutory exemption or a statutory deferment on the basis of objectively established and conceded status. On the other hand, while Gabriel focuses on the administrative and discretionary process, it does not necessarily foreclose Fein’s claim. This is so because Fein challenges the constitutionality of the very administrative procedures by which, he claims, the presentation of his case was adversely affected. This was the aspect of the Oestereich and Breen decisions that concerned Mr. Justice Harlan. 393 U. S., at 239; 396 U. S., at 468-469. He would have allowed pre-induction judicial review of a procedural challenge on constitutional grounds if it presented no “opportunity for protracted delay” in the system’s operations, and if the issue was beyond the competence of the board to hear and determine. This view, however, commanded the vote of no other member of the Court. We again conclude that the line drawn by the Court between Oestereich and Breen, on the one hand, and Gabriel and, inferentially, Boyd, on the other, is the appropriate place at which, in the face of the bar of § 10 (b)(3), to distinguish between availability and unavailability of pre-induction review. We therefore adhere to the principles established by those cases. We further conclude that, as measured against the facts of Fein’s case, it is Gabriel, and not Oestereich and Breen, that is controlling. Unlike the registrants in Oestereich and Breen, Fein’s claimed status is not one that was factually conceded and thus was assured by the statute upon objective criteria. His administrative classification action was, in contrast, a product of the “process” and the “system of classification,” as the petitioner stressed at oral argument. It turned “on the weight and credibility of the testimony,” as Mr. Justice Douglas noted in his concurrence in Gabriel, 393 U. S., at 259. And it was “dependent upon an act of judgment by the Board.” Gabriel, 393 U. S., at 258. The case strikes us, as did Gabriel, as representative of a category that, if allowed pre-induction review, would tend to promote the “litigious interruptions of procedures to provide necessary military manpower” that Congress intended to prevent. 113 Cong. Rec. 15426. The conscientious objector claim is one ideally fit for administrative determination. We are not persuaded, as has been suggested, that the local board’s grant of the 1-0 classification equates with the conceded exemption and deferment involved in Oestereich and Breen. Objective certainty of status is lacking; in addition, the respective rulings of the two appeal boards were themselves based on an evaluation of the same file and yet were opposite to that of the local board. It is true that in Oestereick and Breen a result favorable to the registrant was also reversed, but there the change came about only by the board’s consideration of extraneous circumstances apart from the merits of the underlying claims. Finally, we find no merit in the petitioner’s argument, apparently asserted for the first time in this Court, that a local board’s determination, on a conscientious objector claim, favorable to the registrant is not amenable to the appeal procedures prescribed by the Act. Section 10 (b) (3), by its terms, makes a board’s decision final subject to appeal and we see no confinement of that right of appeal to the registrant alone so as to nullify the regulations’ express grant of appellate power to the State Director as well as to the registrant. The statute, furthermore, is specific as to the President’s right to review. The conclusion we have reached makes it unnecessary to consider in any detail the propositions, urged by the respondents, that the petitioner has not demonstrated the presence of the jurisdictional amount required under 28 U. S. C. § 1331, and that his arguments are premature because he is presently not the subject of an outstanding induction order. IV All this does not mean, however, that this decision assures Dr. Fein’s immediate induction into military service. Events since the inception and trial of the case indicate otherwise: A. The 1971 Statute. By Pub. L. 92-129, § 101 (a) (36), 85 Stat. 353, approved September 28, 1971, the following new section, 50 U. S. C. App. § 471a (1970 ed. Supp. I), was added to the 1967 Act, now renamed the Military Selective Service Act: “Procedural Rights “Sec. 22. (a) It is hereby declared to be the purpose of this section to guarantee to each registrant asserting a claim before a local or appeal board, a fair hearing consistent with the informal and expeditious processing which is required by selective service cases. “(b) Pursuant to such rules and regulations as the President may prescribe— “(1) Each registrant shall be afforded the opportunity to appear in person before the local or any appeal board of the Selective Service System to testify and present evidence regarding his status. “(4) In the event of a decision adverse to the claim of a registrant, the local or appeal board making such decision shall, upon request, furnish to such registrant a brief written statement of the reasons for its decision.” A registrant thus is now statutorily entitled to a personal appearance before a local or appeal board and, on request, to a statement of reasons for any decision of the board adverse to him. This 1971 addition to the statute does not, by its terms, purport to be retroactive. B. The Emerging Regulations. In implementation of the new statute, the administrative regulations have been undergoing change. Some amendments were promulgated effective December 10, 1971. 36 Fed. Reg. 2337T-23385. Others were promulgated effective March 11, 1972. 37 Fed. Reg. 5120-5127. From these it appears that all, or nearly all, the procedural features about which Dr. Fein complains in the present case have been changed administratively. Specifically: (1) When an appeal is taken by the State Director “he shall place in the registrant’s file a written statement of his reasons for taking such appeal.” The local board shall notify the registrant in writing of the action and the reasons therefor, and advise him that the registrant may request a personal appearance before the appeal board. §§ 1626.3 (a) and (b). (2) At such personal appearance the registrant may present evidence, discuss his classification, point out the class or classes in which he thinks he should have been placed, and may direct attention to any information in his file that he believes the local board has overlooked or to which it has given insufficient weight. He may present such further information as he believes will assist the board. The registrant, however, may not be represented before an appeal board by anyone acting as attorney and he shall not be entitled to present witnesses. §§ 1624.4 (e) and (d). (3) If the appeal board classifies the registrant in a class other than the one he requested, it shall record its reasons therefor in his file. The local board shall inform the registrant of such reasons in writing at the time it mails his notice of classification. § 1626.4 (i). (4) On the director’s appeal to the national board the registrant may request an appearance. § 1627.3 (d). At that appearance the registrant may present evidence, other than witnesses, bearing on his classification. There, too, he may discuss his classification, point out the class or classes in which he thinks he should have been placed, and direct attention to any information in his file that he believes the local board overlooked or to which it has given insufficient weight. He may also present such further information as he believes will assist the national board in determining his proper classification. §§ 1627.4 (c) and (e). (5) If the national board classifies the registrant in a class other than the one he requested it shall record its reasons therefor in his file and on request by the registrant it shall furnish him a brief statement of the reasons for its decision. § 1627.4 (h). Thus, under present procedure effective in part since December 10, 1971, and in part since March 11, 1972, complaints about one’s inability to appear before appeal boards, about not being given reasons for adverse classifications, and about inability to present additional material at the appellate stages are all alleviated and, indeed, eliminated. C. The Change in the Government’s Position. In their brief filed prior to the adoption of the 1971 Act, the respondents acknowledged the appearance of “a relatively recent line of authority” exemplified by United States v. Haughton, 413 F. 2d 736 (CA9 1969), to the effect that the failure of a local board to articulate in writing the reason for its denial of a conscientious objector classification is a fatal procedural flaw when the registrant has made a prima facie case for such status. Brief 52-53. The rationale is that some statement of reasons is necessary for “meaningful” review of the administrative decision when the registrant’s claim has met the statutory criteria or has placed him prima facie within the statutory exemption, and his veracity is the principal issue. The respondents appropriately noted, however, that these decisions were all so-called post-induction cases in the sense that they were appeals from convictions under § 12 (a), 50 U. S. C. App. §462 (a). The respondents accordingly took the position that this line of authority, however appropriate it might be for post-induction review, did not support or justify an exception to the bar of § 10 (b) (3) against pre-induction review of the processing or classifying of registrants. In a memorandum filed here since the 1971 Act in No. 70-251, Joseph v. United States, cert. granted, 404 U. S. 820 (1971), the Government has now taken the position that “[although this judicial rule [of Haughton and its progeny] finds little support in early precedent ... we do not think it appropriate to contend that it is erroneous.” The Government also notes that the requirement for an administrative statement of reasons “seems fully consistent with the new statutory . . . and regulatory . . . provisions on this point.” Memo 13, 14. While Joseph also is a conviction case and is not one on pre-induction review, its obvious significance for Fein is that if the doctor is ever again called for induction, the rule of Haughton will provide a defense for him unless and until the requirements of the new statute and regulations are fulfilled. Whether this necessitates a complete reprocessing of Fein’s case is a matter we leave in the first instance to the administrative authorities. The judgment of the Court of Appeals is therefore to be affirmed. We express no view upon the merits of Dr. Fein’s conscientious objector claim other than to observe the obvious, namely, that his claim is not frivolous. Affirmed. Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case. “The decisions of such local board shall be final, except where an appeal is authorized and is taken in accordance with such rules and regulations as the President may prescribe. . . . The decision of such appeal boards shall be final in cases before them on appeal unless modified or changed by the President. The President, upon appeal or upon his own motion, shall have power to determine all claims or questions with respect to inclusion for, or exemption or deferment from training and service under this title . . . and the determination of the President shall be final. No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution . . . after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant. . . .” 50 U. S. C. App. §460 (b)(3). Section 10 (b) (3) of the 1967 Act was amended by Pub. L. 92-129, §101 (a) (26), 85 Stat. 351, approved Sept. 28, 1971. The amendment, however, did not change that portion of § 10 (b) (3) quoted above. Tr. of Oral. Arg. 22. The provision is now 32 CFR § 1627.1 (b). S. Rep. No. 209, 90th Cong., 1st Sess., 10, contained the observation that a registrant may also challenge his classification by post-induction habeas corpus. See Witmer v. United States, 348 U. S. 375, 377 (1955). Tr. of Oral Arg. 13, 18. Id., at 16-18. See also United States v. Edwards, 450 F. 2d 49 (CA1 1971); United States v. Lenhard, 437 F. 2d 936 (CA2 1970); Scott v. Commanding Officer, 431 F. 2d 1132 (CA3 1970); United States v. Broyles, 423 F. 2d 1299 (CA4 1970); United States v. Stetter, 445 F. 2d 472 (CA5 1971); United States v. Washington, 392 F. 2d 37 (CA6 1968); United States v. Lemmens, 430 F. 2d 619 (CA7 1970); United States v. Cummins, 425 F. 2d 646 (CA8 1970); United States v. Pacheco, 433 F. 2d 914 (CA10 1970). See Gonzales v. United States, 348 U. S. 407, 415 (1955). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

C

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. JUSTICE THOMAS delivered the opinion of the Court. This case requires us to determine the scope of the statutory prohibition on awards of "punitive damages" in cases brought against the United States under the Federal Tort Claims Act, 28 U. S. C. §~ 2671-2680. I Petitioner Shirley Moizof is the personal representative of the estate of Robert Molzof, her late husband. On October 31, 1986, Mr. Molzof, a veteran, underwent lung surgery at a Veterans' Administration hospital in Madison, Wisconsin. After surgery, he was placed on a ventilator. For some Un-, disclosed reason, the ventilator tube that was providing oxygen to him became disconnected. The ventilator's alarm system also was disconnected. As a result of this combination of events, Mr. Molzof was deprived of oxygen for approximately eight minutes before his predicament was discovered. Because of this unfortunate series of events, triggered by the hospital employees' conceded negligence, Mr. Moizof suffered irreversible brain damage, leaving him permanently comatose. Mr. Moizof's guardian ad litem filed suit in District Court under the Federal Tort Claims Act (FTCA or Act) seeking damages for supplemental medical care, future medical expenses, and loss of enjoyment of life. The Government admitted liability, and the case proceeded to a bench trial on the issue of damages. The District Court determined that the free medical care being provided to Mr. Moizof by the veterans' hospital was reasonable and adequate, that Mrs. Moizof was satisfied with those services and had no intention of transferring Mr. Moizof to a private hospital, and that it was in Mr. Moizof's best interests to remain at the veterans' hospital because neighboring hospitals could not provide a comparable level of care. In addition to ordering the veterans' hospital to continue the same level of care, the court awarded Mr. Moizof damages for supplemental care-physi- Cal therapy, respiratory therapy, and weekly doctor's visits-not provided by the veterans' hospital. The District Court refused, however, to award damages for medical care that would duplicate the free medical services already being provided by the veterans' hospital. Similarly, the court declined to award Mr. Molzof damages for loss of enjoyment of life. Mr. Moizof died after final judgment had been entered, and Mrs. Moizof was substituted as plaintiff in her capacity as personal representative of her late husband's estate. The United States Court of Appeals for the Seventh Circuit affirmed the District Court's judgment. 911 F. 2d 18 (1990). The Court of Appeals agreed with the District Court that, given the Government's provision of free medical care to Mr. Molzof and Mrs. Molzof's apparent satisfaction with that care, any award for future medical expenses would be punitive in effect and was therefore barred by the FTCA prohibition on "punitive damages." Id., at 21. With respect to the claim for Mr. Molzof's loss of enjoyment of life, the Court of Appeals stated that Wisconsin law was unclear on the question whether a comatose plaintiff could recover such damages. Ibid. The court decided, however, that "even if Wisconsin courts recognized the claim for loss of enjoyment of life, in this case it would be barred as punitive under the Federal Tort Claims Act," ibid., because "an award of damages for loss of enjoyment of life can in no way recompense, reimburse or otherwise redress a comatose patient's uncognizable loss . . . ." Id., at 22. We granted certiorari to consider the meaning of the term "punitive damages" as used in the FTCA. 499 U. S. 918 (1991). II Prior to 1946, the sovereign immunity of the United States prevented those injured by the negligent acts of federal employees from obtaining redress through lawsuits; compensation could be had only by passage of a private bill in Congress. See Dalehite v. United States, 346 U. S. 15, 24-25 (1953). The FTCA replaced that “notoriously clumsy,” id., at 25, system of compensation with a limited waiver of the United States’ sovereign immunity. United States v. Orleans, 425 U. S. 807, 813 (1976). In this case, we must determine the scope of that waiver as it relates to awards of “punitive damages” against the United States. The FTCA provides in pertinent part as follows: “The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.” 28 U. S. C. § 2674 (emphasis added). As this provision makes clear, in conjunction with the jurisdictional grant over FTCA cases in 28 U. S. C. § 1346(b), the extent of the United States’ liability under the FTCA is generally determined by reference to state law. See United States v. Muniz, 374 U. S. 150, 153 (1963); Richards v. United States, 369 U. S. 1, 6-7, 11 (1962); Rayonier Inc. v. United States, 352 U. S. 315, 318-319 (1957); Indian Towing Co. v. United States, 350 U. S. 61, 64-65, 68-69 (1955); United States v. Aetna Casualty & Surety Co., 338 U. S. 366, 370 (1949). . Nevertheless, the meaning of the term “punitive damages” as used in § 2674, a federal statute, is by definition a federal question. Cf. Reconstruction Finance Corp. v. Beaver County, 328 U. S. 204, 208 (1946) (definition of “real property” as used in a federal statute is a federal question). Petitioner argues that “§2674 must be interpreted so as to permit awards against the United States of those state-law damages which are intended by state law to act as compensation for injuries sustained as a result of the tort, and to preclude awards of damages which are intended to act as punishment for egregious conduct.” Brief for Petitioner 8; see also id., at 12. We understand petitioner to be suggesting that the Court define the term “punitive damages” by reference to traditional common law, leaving plaintiffs free to recover any damages that cannot be characterized as “punitive” under that standard. The Government, on the other hand, suggests that we define “punitive damages” as “damages that are in excess of, or bear no relation to, compensation.” Brief for United States 5. In the Government’s view, there is a strict dichotomy between compensatory and punitive damages; damages that are not strictly compensatory are necessarily “punitive damages” barred by the statute. Thus, the Government contends that any damages other than those awarded for a plaintiff’s actual loss — which the Government narrowly construes to exclude damages that are excessive, duplicative, or for an inherently noncompensa-ble loss, id., at 22 — are “punitive damages” because they are punitive in effect. We agree with petitioner’s interpretation of the term “punitive damages,” and conclude that the Government’s reading of § 2674 is contrary to the statutory language. Section 2674 prohibits awards of “punitive damages,” not “damages awards that may have a punitive effect.” “Punitive damages” is a legal term of art that has a widely accepted common-law meaning; “[pjunitive damages have long been a part of traditional state tort law.” Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 255 (1984). Although the precise nature and use of punitive damages may have evolved over time, and the size and frequency of such awards may have increased, this Court’s decisions make clear that the concept of “punitive damages” has a long pedigree in the law. “It is a well-established principle of the common law, that in actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive, or vindictive damages upon a defendant, having in view the enormity of his offence rather than the measure of compensation to the plaintiff.” Day v. Woodworth, 13 How. 363, 371 (1852). See also Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 15-17 (1991); id., at 25-27 (Scalia, J., concurring in judgment). Legal dictionaries in existence when the FTCA was drafted and enacted indicate that “punitive damages” were commonly understood to be damages awarded to punish defendants for torts committed with fraud, actual malice, violence, or oppression. See, e. g., Black’s Law Dictionary 501 (3d ed. 1933); The Cyclopedic Law Dictionary 292 (3d ed. 1940). On more than one occasion, this Court has confirmed that general understanding. “By definition, punitive damages are based upon the degree of the defendant’s culpability.” Massachusetts Bonding & Ins. Co. v. United States, 352 U. S. 128, 133 (1956); see also Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 274, n. 20, 278, n. 24 (1989); Milwaukee & St. Paul R. Co. v. Arms, 91 U. S. 489, 493 (1876); Day v. Woodworth, supra, at 371. The common-law definition of “punitive damages” focuses on the nature of the defendant’s conduct. As a general rule, the common law recognizes that damages intended to compensate the plaintiff are different in kind from “punitive damages.” A cardinal rule of statutory construction holds that: “[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.” Morissette v. United States, 342 U. S. 246, 263 (1952). See also NLRB v. Amax Coal Co., 453 U. S. 322, 329 (1981); Braxton v. United States, 500 U. S. 344, 351, n. (1991). This rule carries particular force in interpreting the FTCA. “Certainly there is no warrant for assuming that Congress was unaware of established tort definitions when it enacted the Tort Claims Act in 1946, after spending ‘some twenty-eight years of congressional drafting and redrafting, amendment and counter-amendment.’” United States v. Neustadt, 366 U. S. 696, 707 (1961) (quoting United States v. Spelar, 338 U. S. 217, 219-220 (1949)). The Government’s interpretation of §2674 appears to be premised on the assumption that the statute provides that the United States “shall be liable only for compensatory damages.” But the first clause of §2674, the provision we are interpreting, does not say that. What it clearly states is that the United States “shall not be liable ... for punitive damages.” The difference is important. The statutory language suggests that to the extent a plaintiff may be entitled to damages that are not legally considered “punitive damages,” but which are for some reason above and beyond ordinary notions of compensation, the United States is liable “in the same manner and to the same extent as a private individual.” These damages in the “gray” zone are not by definition “punitive damages” barred under the Act. In the ordinary case in which an award of compensatory damages is subsequently reduced on appeal, one does not say that the jury or the lower court mistakenly awarded “punitive damages” above and beyond the actual compensatory damages. It is simply a matter of excessive or erroneous compensation. Excessiveness principles affect only the amount, and not the nature, of the damages that may be recovered. The term “punitive damages,” on the other hand, embodies an element of the defendant’s conduct that must be proved before such damages are awarded. The Government argues that we must construe the prohibition on “punitive damages” in pari materia with the second clause of § 2674 which was added by Congress just one year after the FTCA was enacted. The amendment provides as follows: “If, however, in any case wherein death was caused, the law of the place where the act or omission complained of occurred provides, or has been construed to provide, for damages only punitive in nature, the United States shall be liable for actual or compensatory damages, measured by the pecuniary injuries resulting from such death to the persons respectively, for whose benefit the action was brought, in lieu thereof.” 28 U. S. C. §2674. This provision was added to the statute to address the fact that two States, Alabama and Massachusetts, permitted only punitive damages in wrongful-death actions. Massachusetts Bonding & Ins. Co. v. United States, supra, at 130-131. The Government contends that the second clause of §2674 “confirms the compensatory purpose of the statute and demonstrates that Congress intended to define ‘punitive damages’ by contrasting them with ‘actual or compensatory damages.’” Brief for United States 18-19 (footnote omitted). This argument is undermined, however, not only by the fact that “punitive damages” is a legal term of art with a well-established common-law meaning, but also by the Government’s own statement that, although the second clause defines “actual or compensatory damages” as “the pecuniary injuries resulting from such death,” the “pecuniary injuries” standard does not apply in determining compensatory damages in any other kind of tort suit against the United States. Id., at 19, n. 13. Given this concession, which we agree to be a correct statement of the law, the second clause of §2674 cannot be read as proving so much as the Government claims. The Government’s interpretation of “punitive damages” would be difficult and impractical to apply. Under the Government’s reading, an argument could be made that Mr. Mol-zof’s damages for future medical expenses would have to be reduced by the amount he saved on rent, meals, clothing, and other daily living expenses that he did not incur while hospitalized. Otherwise, these duplicative damages would be “punitive damages” because they have the effect of making the United States pay twice. The difficulties inherent in attempting to prove such offsets would be enormous. That the Government has refused to acknowledge the practical implications of its theory is evidenced by its representations at oral argument that, as a general matter, it is willing to accept state-law definitions of compensatory awards for purposes of the FTCA, Tr. of Oral Arg. 28, and that “there are very few circumstances” in which States have authorized damages awards that the Government would challenge as punitive, id., at 38. The Government’s reading of the statute also would create problems in liquidated damages cases and in other contexts in which certain kinds of injuries are compensated at fixed levels that may or may not correspond to a particular plaintiff’s actual loss. At oral argument, however, the Government disclaimed that extension of its theory, see id., at 28, 35, and instead asserted that its position was that state compensatory awards are recoverable under the Act so long as they are a “reasonable” approximation of the plaintiff’s actual damages, id., at 36. We agree that § 2674 surely does not prohibit any compensatory award that departs from the actual damages in a particular case. But the Government’s restrictive reading of the statute would involve the federal courts in the impractical business of determining the actual loss suffered in each case and whether the damages awarded are a “reasonable” approximation of that loss. Finally, we reject the Government’s reliance on this Court’s interpretations of various statutory exceptions to FTCA liability contained in §2680, some of which depart from traditional common-law concepts, as supportive of the notion that we should adopt a definition of “punitive damages” that departs from the common law. Many of the § 2680 exceptions simply have no obvious common-law antecedent. For example, § 2680(a) provides that the United States shall not be liable for any claim based on “the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or employee of the Government.” 28 U. S. C. § 2680(a). It would have made little sense to try to incorporate common-law standards in explicating terms like “discretionary function” in the absence of any evidence that such concepts had any basis in the common law of most States or had been given some widely shared meaning. In marked contrast, the concept of “punitive damages” is deeply rooted in the common law. An examination of the nature of the exceptions in §2680 further demonstrates that those limitations serve a qualitatively different purpose than § 2674’s bar on “punitive damages.” The §2680 exceptions are designed to protect certain important governmental functions and prerogatives from disruption. They mark “the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” United States v. Varig Airlines, 467 U. S. 797, 808 (1984). Through the §2680 exceptions, “Congress has taken steps to protect the Government from liability that would seriously handicap efficient government operations.” United States v. Muniz, 374 U. S., at 163. See also United States v. Gaubert, 499 U. S. 315, 322-323 (1991); Berkovitz v. United States, 486 U. S. 531, 536-537 (1988). For example, there are exceptions for claims involving the mishandling of mail, § 2680(b), the assessment or collection of taxes or customs duties, § 2680(c), the imposition or establishment of a quarantine, § 2680(f), damages caused by the fiscal operations of the Treasury or by regulation of the monetary system, § 2680(i), the combatant activities of the military, § 2680(j), the activities of the Tennessee Valley Authority or the Panama Canal Company, §§2680(1), (m), and the activities of federal land banks, §2680(n). These examples suggest that Congress’ primary concern in enumerating the §2680 exceptions was to retain sovereign immunity with respect to certain governmental functions that might otherwise be disrupted by FTCA lawsuits. That the Court has not relied on the common law in interpreting some of the exceptions in §2680, then, is not persuasive evidence that it should do the same in interpreting § 2674. We conclude that §2674 bars the recovery only of what are legally considered “punitive damages” under traditional common-law principles. This reading of the statute is consistent with the language of § 2674 and the structure of the Act, and it provides courts with a workable standard for determining when a plaintiff is improperly seeking “punitive damages” against the United States. Our interpretation of the term “punitive damages” requires us to reverse the Court of Appeals’ decision that Mrs. Molzof is not permitted to recover damages for her husband’s future medical expenses and his loss of enjoyment of life. It is undisputed that the claims in this case are based solely on a simple negligence theory of liability. Thus, the damages Mrs. Molzof seeks to recover are not punitive damages under the common law or the FTCA because their recoverability does not depend upon any proof that the defendant has engaged in intentional or egregious misconduct and their, purpose is not to punish. We must remand, however, because we are in no position to evaluate the recoverability of those damages under Wisconsin law. Cf. Sheridan v. United States, 487 U. S. 392, 401, and n. 6 (1988). It may be that under Wisconsin law the damages sought in this case are not recoverable as compensatory damages. This might be true because Wisconsin law does not recognize such damages, or because it requires a setoff when a defendant already has paid (or agreed to pay) expenses incurred by the plaintiff, or for some other reason. These questions were not resolved by the lower courts. III 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. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Judgment of the Court, and opinion of Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice Stevens, announced by Mr. Justice Stewart. The question in this case is whether the imposition of a death sentence for the crime of first-degree murder under the law of North Carolina violates the Eighth and Fourteenth Amendments. I The petitioners were convicted of first-degree murder as the result of their participation in an armed robbery of a convenience food store, in the course of which the cashier was killed and a customer was seriously wounded. There were four participants in the robbery: the petitioners James Tyrone Woodson and Luby Waxton and two others, Leonard Tucker and Johnnie Lee Carroll. At the petitioners’ trial Tucker and Carroll testified for the prosecution after having been permitted to plead guilty to lesser offenses; the petitioners testified in their own defense. The evidence for the prosecution established that the four men had been discussing a possible robbery for some time. On the fatal day Woodson had been drinking heavily. About 9:30 p. m., Waxton and Tucker came to the trailer where Woodson was staying. When Woodson came out of the trailer, Waxton struck him in the face and threatened to kill him in an effort to make him sober up and come along on the robbery. The three proceeded to Waxton’s trailer where they met Carroll. Waxton armed himself with a nickel-plated derringer, and Tucker handed Woodson a rifle. The four then set out by automobile to rob the store. Upon arriving at their destination Tucker and Waxton went into the store while Carroll and Woodson remained in the car as lookouts. Once inside the store, Tucker purchased a package of cigarettes from the woman cashier. Waxton then also asked for a package of cigarettes, but as the cashier approached him he pulled the derringer out of his hip pocket and fatally shot her at point-blank range. Waxton then took the money tray from the cash register and gave it to Tucker, who carried it out of the store, pushing past an entering customer as he reached the door. After he was outside, Tucker heard a second shot from inside the store, and shortly thereafter Waxton emerged, carrying a handful of paper money. Tucker and Wax-ton got in the car and the four drove away. The petitioners’ testimony agreed in large part with this version of the circumstances of the robbery. It differed diametrically in one important respect: Waxton claimed that he never had a gun, and that Tucker had shot both the cashier and the customer. During the trial Waxton asked to be allowed to plead guilty to the same lesser offenses to which Tucker had pleaded guilty, but the solicitor refused to accept the pleas. Woodson, by contrast, maintained throughout the trial that he had been coerced by Waxton, that he waS Therefore innocent, and that he would not consider pleading guilty to any offense. The petitioners were found guilty on all charges, and, as was required by statute, sentenced to death. The Supreme Court of North Carolina affirmed. 287 N. C. 578, 215 S. E. 2d 607 (1975). We granted certiorari, 423 U. S. 1082 (1976), to consider whether the imposition of the death penalties in this case comports 'with the Eighth and Fourteenth Amendments to the United States Constitution. II The petitioners argue that the imposition of the death penalty under any circumstances is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. We reject this argument for the reasons stated today in Gregg v. Georgia, ante, at 168-187. III At the time of this Court’s decision in Furman v. Georgia, 408 U. S. 238 (1972), North Carolina law provided that in cases of first-degree murder, the jury in its unbridled discretion could choose whether the convicted defendant should be sentenced to death or to life imprisonment. After the Furman decision the Supreme Court of North Carolina in State v. Waddell, 282 N. C. 431; 194 S. E. 2d 19 (1973), held unconstitutional the provision of the death penalty statute that gave the jury the option of returning a verdict of guilty without capital punishment, but held further that this provision was severable so that the statute survived as a mandatory death penalty law. The North Carolina General Assembly in 1974 followed the court’s lead and enacted a new statute that was essentially unchanged from the old one except that it made the death penalty mandatory. The statute now reads as follows: “Murder in the first and second degree defined; punishment. — A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, kidnapping, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death. All other kinds of murder shall be deemed murder in the second degree, and shall be punished by imprisonment for a term of not less than two years nor more than life imprisonment in the State’s prison.” N. C. Gen. Stat. §14-17 (Cum. Supp. 1975). It was under this statute that the petitioners, who committed their crime on June 3, 1974, were tried, convicted, and sentenced to death. North Carolina, unlike Florida, Georgia, and Texas, has thus responded to the Furman decision by making death the mandatory sentence for all persons convicted of first-degree murder. In ruling on the constitutionality of the sentences imposed on the petitioners under this North Carolina statute, the Court now addresses for the first time the question whether a death sentence returned pursuant to a law imposing a mandatory death penalty for a broad category of homicidal offenses constitutes cruel and unusual punishment within the meaning of the Eighth and Fourteenth Amendments. The issue, like that explored in Furman, involves the procedure employed by the State to select persons for the unique and irreversible penalty of death. A The Eighth Amendment stands to assure that the State’s power to punish is “exercised within the limits of civilized standards.” Trop v. Dulles, 356 U. S. 86, 100 (1958) (plurality opinion). See id., at 101; Weems v. United States, 217 U. S. 349, 373, 378 (1910); Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 468-469 (1947) (Frankfurter, J., concurring); Robinson v. California, 370 U. S. 660, 666 (1962); Furman v. Georgia, 408 U. S., at 242 (Douglas, J., concurring); id., at 269-270 (Brennan, J., concurring); id., at 329 (Marshall, J., concurring) ; id., at 382-383 (Burger, C. J., dissenting) ; id., at 409 (Blackmun, J., dissenting); id., at 428-429 (Powell, J., dissenting). Central to the application of the Amendment is a determination of contemporary standards regarding the infliction of punishment. As discussed in Gregg v. Georgia, ante, at 176-182, indicia of societal values identified in prior opinions include history and traditional usage, legislative enactments, and jury determinations. In order to provide a frame for assessing the relevancy of these factors in this case we begin by sketching the history of mandatory death penalty statutes in the United States. At the time the Eighth Amendment was adopted in 1791, the States uniformly followed the common-law practice of making death the exclusive and mandatory sentence for certain specified offenses. Although the range of capital offenses in the American Colonies was quite limited in comparison to the more than 200 offenses then punishable by death in England, the Colonies at the time of the Revolution imposed death sentences on all persons convicted of any of a considerable number of crimes, typically including at a minimum, murder, treason, piracy, arson, rape, robbery, burglary, and sodomy. As at common law, all homicides that were not involuntary, provoked, justified, or excused constituted murder and were automatically punished by death. Almost from the outset jurors reacted unfavorably to the harshness of mandatory death sentences. The States initially responded to this expression of public dissatisfaction with mandatory statutes by limiting the classes of capital offenses. This reform, however, left unresolved the problem posed by the not infrequent refusal of juries to convict murderers rather than subject them to automatic death sentences. In 1794, Pennsylvania attempted to alleviate the undue severity of the law by confining the mandatory death penalty to “murder of the first degree” encompassing all “wilful, deliberate and premeditated” killings. Pa. Laws 1794 c. 1766. Other jurisdictions, including Virginia and Ohio, soon enacted similar measures, and within a generation the practice spread to most of the States. Despite the broad acceptance of the division of murder into degrees, the reform proved to be an unsatisfactory means of identifying persons appropriately punishable by death. Although its failure was due in part to the amorphous nature of the controlling concepts of willfulness, deliberateness, and premeditation, a more fundamental weakness of the reform soon became apparent. Juries continued to find the death penalty inappropriate in a significant number of first-degree murder cases and refused to return guilty verdicts for that crime. The inadequacy of distinguishing between murderers solely on the basis of legislative criteria narrowing the definition of the capital offense led the States to grant juries sentencing discretion in capital cases. Tennessee in 1838, followed by Alabama in 1841, and Louisiana in 1846, were the first States to abandon mandatory death sentences in favor of discretionary death penalty statutes. This flexibility remedied the harshness of mandatory statutes by permitting the jury to respond to mitigating factors by withholding the death penalty. By the turn of the century, 23 States and the Federal Government had made death sentences discretionary for first-degree murder and other capital offenses. During the next two decades 14 additional States replaced their mandatory death penalty statutes. Thus, by the end of World War I, all but eight States, Hawaii, and the District of Columbia either had adopted discretionary death penalty schemes or abolished the death penalty altogether. By 1963, all of these remaining jurisdictions had replaced their automatic death penalty statutes with discretionary jury sentencing. The history of mandatory death penalty statutes in the United States thus reveals that the practice of sentencing to death all persons convicted of a particular offense has been rejected as unduly harsh and unwork-ably rigid. The two crucial indicators of evolving standards of decency respecting the imposition of punishment in our society — jury determinations and legislative enactments — both point conclusively to the repudiation of automatic death sentences. At least since the Revolution, American jurors have, with some regularity, disregarded their oaths and refused to convict defendants where a death sentence was the automatic consequence of a guilty verdict. As we have seen, the initial movement to reduce the number of capital offenses and to separate murder into degrees was prompted in part by the reaction of jurors as well as by reformers who objected to the imposition of death as the penalty for any crime. Nineteenth century journalists, statesmen, and jurists repeatedly observed that jurors were often deterred from convicting palpably guilty men of first-degree murder under mandatory statutes. Thereafter, continuing evidence of jury reluctance to convict persons of capital offenses in mandatory death penalty jurisdictions resulted in legislative authorization of discretionary jury sentencing — by Congress for federal crimes in 1897, by North Carolina in 1949, and by Congress for the District of Columbia in 1962. As we have noted today in Gregg v. Georgia, ante, at 179-181, legislative measures adopted by the people’s chosen representatives weigh heavily in ascertaining contemporary standards of decency. The consistent course charted by the state legislatures and by Congress since the middle of the past century demonstrates that the aversion of jurors to mandatory death penalty statutes is shared by society at large. Still further evidence of the incompatibility of mandatory death penalties with contemporary values is provided by the results of jury sentencing under discretionary statutes. In Witherspoon v. Illinois, 391 U. S. 510 (1968), the Court observed that “one of the most important functions any jury can perform” in exercising its discretion to choose “between life imprisonment and capital punishment” is “to maintain a link between contemporary community values and the penal system.” Id., at 519, and n. 15. Various studies indicate that even in first-degree murder cases juries with sentencing discretion do not impose the death penalty “with any great frequency.” H. Kalven & H. Zeisel, The American Jury 436 (1966). The actions of sentencing juries suggest that under contemporary standards of decency death is viewed as an inappropriate punishment for a substantial portion of convicted first-degree murderers. Although the Court has never ruled on the constitutionality of mandatory death penalty statutes, on several occasions dating back to 1899 it has commented upon our society’s aversion to automatic death sentences. In Winston v. United States, 172 U. S. 303 (1899), the Court noted that the “hardship of punishing with death every crime coming within the definition of murder at common law, and the reluctance of jurors to concur in a capital conviction, have induced American legislatures, in modern times, to allow some cases of murder to be punished by imprisonment, instead of by death.” Id., at 310. Fifty years after Winston, the Court underscored the marked transformation in our attitudes toward mandatory sentences: “The belief no longer prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender. This whole country has traveled far from the period in which the death sentence was an automatic and commonplace result of convictions....” Williams v. New York, 337 U. S. 241, 247 (1949). More recently, the Court in McGautha v. California, 402 U. S. 183 (1971), detailed the evolution of discretionary imposition of death sentences in this country, prompted by what it termed the American “rebellion against the common-law rule imposing a mandatory death sentence on all convicted murderers.” Id., at 198. See id., at 198-202. Perhaps the one important factor about evolving social values regarding capital punishment upon which the Members of the Furman Court agreed was the accuracy of McGautha’s assessment of our Nation’s rejection of mandatory death sentences. See Furman v. Georgia, 408 U. S., at 245-246 (Douglas, J., concurring); id., at 297-298 (Brennan, J., concurring); id., at 339 (Marshall, J., concurring); id., at 402-403 (Burger, C. J., with whom Blackmun, Powell, and Rehnquist, JJ., joined, dissenting); id., at 413 (Blackmun, J., dissenting). Mr. 'Justice Blackmun, for example, emphasized that legislation requiring an automatic death sentence for specified crimes would be “regressive and of an antique mold” and would mark a return to a “point in our criminology [passed beyond] long ago.” Ibid. The Chief Justice, speaking for the four dissenting Justices in Furman, discussed the question of mandatory death sentences at some length: “I had thought that nothing was clearer in history, as we noted in McGautha one year ago, than the American abhorrence of 'the common-law rule imposing a mandatory death sentence on all convicted murderers.’ 402 U. S., at 198. As the concurring opinion of Mr. Justice Marshall shows, [408 U. S.,] at 339, the 19th century movement away from mandatory death sentences marked an enlightened introduction of flexibility into the sentencing process. It recognized that individual culpability is not always measured by the category of the crime committed. This change in sentencing practice was greeted by the Court as a humanizing development. See Winston, v. United States, 172 U. S. 303 (1899); cf. Calton v. Utah, 130 U. S. 83 (1889). See also Andres v. United States, 333 U. S. 740, 753 (1948) (Frankfurter, J., concurring).” Id., at 402. Although it seems beyond dispute that, at the time of the Furman decision in 1972, mandatory death penalty statutes had been renounced by American juries and legislatures, there remains the question whether the mandatory statutes adopted by North Carolina and a number of other States following Furman evince a sudden reversal of societal values regarding the imposition of capital punishment. In view of the persistent and unswerving legislative rejection of mandatory death penalty statutes beginning in 1838 and continuing for more than 130 years until Furman, it seems evident that the post-Furman enactments reflect attempts by the States to retain the death penalty in a form consistent with the Constitution, rather than a renewed societal acceptance of mandatory death sentencing. The fact that some States have adopted mandatory measures following Fur-man while others have legislated standards to guide jury discretion appears attributable to diverse readings of this Court’s multi-opinioned decision in that case. A brief examination of the background of the current North Carolina statute serves to reaffirm our assessment of its limited utility as an indicator of contemporary values regarding mandatory death sentences. Before 1949, North Carolina imposed a mandatory death sentence on any person convicted of rape or first-degree murder. That year, a study commission created by the state legislature recommended that juries be granted discretion to recommend life sentences in all capital cases: “We propose that a recommendation of mercy by the jury in capital cases automatically carry with it a life sentence. Only three other states now have the mandatory death penalty and we believe its retention will be definitely harmful. Quite frequently, juries refuse to convict for rape or first degree murder because, from all the circumstances, they do not believe the defendant, although guilty, should suffer death. The result is that verdicts are returned hardly in harmony with evidence. Our proposal is already in effect in respect to the crimes of burglary and arson. There is much testimony that it has proved beneficial in such cases. We think the law can now be broadened to include all capital crimes.” Report of the Special Commission For the Improvement of the Administration of Justice, North Carolina, Popular Government 13 (Jan. 1949). The 1949 session of the General Assembly of North Carolina adopted the proposed modifications of its rape and murder statutes. Although in subsequent years numerous bills were introduced in the legislature to limit further or abolish the death penalty in North Carolina, they were rejected as were two 1969 proposals to return to mandatory death sentences for all capital offenses. See State v. Waddell, 282 N. C., at 441, 194 S. E. 2d, at 26 (opinion of the court); id., at 456-457, 194 S. E. 2d, at 32-33 (Bobbitt, C. J., concurring in part and dissenting in part). As noted, supra, at 285-286, when the Supreme Court of North Carolina analyzed the constitutionality of the State's death penalty statute following this Court’s decision in Furman, it severed the 1949 proviso authorizing jury sentencing discretion and held that “the remainder of the statute with death as the mandatory punishment... remains in full force and effect.” State v. Waddell, supra, at 444-445, 194 S. E. 2d, at 28. The North Carolina General Assembly then followed the course found constitutional in Waddell and enacted a first-degree murder provision identical to the mandatory statute in operation prior to the authorization of jury discretion. The State’s brief in this case relates that the legislature sought to remove “all sentencing discretion [so that] there could be no successful Furman based attack on the North Carolina statute.” It is now well established that the Eighth Amendment draws much of its meaning from “the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U. S., at 101 (plurality opinion). As the above discussion makes clear, one of the most significant developments in our society’s treatment of capital punishment has been the rejection of the common-law practice of inexorably imposing a death sentence upon every person convicted of a specified offense. North Carolina’s mandatory death penalty statute for first-degree murder departs markedly from contemporary standards respecting the imposition of the punishment of death and thus cannot be applied consistently with the Eighth and Fourteenth Amendments’ requirement that the State’s power to punish “be exercised within the limits of civilized standards.” Id., at 100. B A separate deficiency of North Carolina's mandatory death sentence statute is its failure to provide a constitutionally tolerable response to Furman’s, rejection of unbridled jury discretion in the imposition of capital sentences. Central to the limited holding in Furman was the conviction that the vesting of standardless sentencing power in the jury violated the Eighth and Fourteenth Amendments. See Furman v. Georgia, 408 U. S., at 309-310 (Stewart, J., concurring); id., at 313 (White, J., concurring); cf. id., at 253-257 (Douglas, J., concurring). See also id., at 398-399 (Burger, C. J., dissenting). It is argued that North Carolina has remedied the inadequacies of the death penalty statutes held unconstitutional in Furman by withdrawing all sentencing discretion from juries in capital cases. But when one considers the long and consistent American experience with the death penalty in first-degree murder cases, it becomes evident that mandatory statutes enacted in response to Furman have simply papered over the problem of unguided and unchecked jury discretion. As we have noted in Part III-A, supra, there is general agreement that American juries have persistently refused to convict a significant portion of persons charged with first-degree murder of that offense under mandatory death penalty statutes. The North Carolina study commission, supra, at 299-300, reported that juries in that State “[q]uite frequently” were deterred from rendering guilty verdicts of first-degree murder because of the enormity of the sentence automatically imposed. Moreover, as a matter of historic fact, juries operating under discretionary sentencing statutes have consistently returned death sentences in only a minority of first-degree murder cases. In view of the historic record, it is only reasonable to assume that many juries under mandatory statutes will continue to consider the grave consequences of a conviction in reaching a verdict. North Carolina’s mandatory death penalty statute provides no standards to guide the jury in its inevitable exercise of the power to determine which first-degree murderers shall live and which shall die. And there is no way under the North Carolina law for the judiciary to check arbitrary and capricious exercise of that power through a review of death sentences. Instead of rationalizing the sentencing process, a mandatory scheme may well exacerbate the problem identified in Furman by resting the penalty determination on the particular jury’s willingness to act lawlessly. While a mandatory death penalty statute may reasonably be expected to increase the number of persons sentenced to death, it does not fulfill Furman’s, basic requirement by replacing arbitrary and wanton jury discretion with objective standards to guide, regularize, and make rationally reviewable the process for imposing a sentence of death. C A third constitutional shortcoming of the North Carolina statute is its failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death. In Furman, members of the Court acknowledged what cannot fairly be denied — that death is a punishment different from all other sanctions in kind rather than degree. See 408 U. S., at 286-291 (Brennan, J., concurring); id., at 306 (Stewart, J., concurring). A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death. This Court has previously recognized that “[f]or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51, 55 (1937). Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development. See Williams v. New York, 337 U. S., at 247-249; Furman v. Georgia, 408 U. S., at 402-403 (Burger, C. J., dissenting). While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trop v. Dulles, 356 U. S., at 100 (plurality opinion), requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death. This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case. For the reasons stated, we conclude that the death sentences imposed upon the petitioners under North Carolina's mandatory death sentence statute violated the Eighth and Fourteenth Amendments and therefore must be set aside. The judgment of the Supreme Court of North Carolina is reversed insofar as it upheld the death sentences imposed upon the petitioners, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Tucker had been allowed to plead guilty to charges of accessory after the fact to murder and to armed robbery. He was sentenced to 19 years’ imprisonment on the first charge, and to not less than 20 years nor more than 30 years on the second, the sentences, to run concurrently. The solicitor gave no reason for refusing to accept Waxton’s offer to plead guilty to a lesser offense. The Supreme Court of North Carolina, in finding that the solicitor had not abused his discretion, noted: “The evidence that Waxton planned and directed the robbery and that he fired the shots which killed Mrs. Butler and wounded Mr. Stancil is overwhelming. No extenuating circumstances gave the solicitor any incentive to accept the plea he tendered at the close of the State’s evidence.” 287 N. C. 578, 595-596, 215 S. E. 2d 607, 618 (1975). In addition to first-degree murder, both petitioners were found guilty of armed robbery. Waxton was also found guilty of assault with a deadly weapon with intent to kill, a charge arising from the wounding of the customer. The murder statute in effect in North Carolina until April 1974 read as follows: “§ 14-17. Murder in the first and second degree defined; punishment. — A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death: Provided, if at the time of rendering its verdict in open court, the jury shah so recommend, the punishment shall be imprisonment fo-r life in the State’s prison, and the court shall so instruct the jury. All other kinds of murder shall be deemed murder in the second degree, and shall be punished with imprisonment of not less than two nor more than thirty years in the State’s prison.” N. C. Gen. Stat. § 14-17 (1969). The court characterized the effect of the statute without the invalid provision as follows: “Upon the return of a verdict of guilty of any such offense, the court must pronounce a sentence of death. The punishment to be imposed for these capital felonies is no longer a discretionary question for the jury and therefore no longer a proper subject for an instruction by the judge." 282 N. C., at 445, 194 S. E. 2d, at 28-29. North Carolina also has enacted a mandatory death sentence statute for the crime of first-degree rape. N. C. Gen. Stat. § 14 — 21 (Cum. Supp. 1975). This case does not involve a mandatory death penalty statute limited to an extremely narrow category of homicide, such as murder by a prisoner serving a life sentence, defined in large part in terms of the character or record of the offender. We thus express no opinion regarding the constitutionality of such a statute. See n. 25, infra. The Eighth Amendment's proscription of cruel and unusual punishments has been held to be applicable to the States through the Fourteenth Amendment. See Robinson v. California, 370 U. S. 660 (1962). The Court’s decision in Furman v. Georgia, 408 U. S. 238 (1972), involved statutes providing for jury discretion in the imposition of death sentences. Several members of the Court in Furman expressly declined to state their views regarding the constitutionality of mandatory death sentence statutes. See id,., at 257 (Douglas, J., concurring); id., at 307 (Stewart, J., concurring); id., at 310-311 (White, J., concurring). The petitioners here, as in the other four death penalty cases before the Court, contend that their sentences were imposed in violation of the Constitution because North Carolina has failed to eliminate discretion from all phases of its procedure for imposing capital punishment. We have rejected similar claims today in Gregg, Prof-fitt, and Jureh. The mandatory nature of the North Carolina death penalty statute for first-degree murder presents a different question under the Eighth and Fourteenth Amendments. Mr. Justice Frankfurter contended that the Eighth Amendment did not apply to the States through the Fourteenth Amendment. He believed, however, that the Due Process Clause of the Fourteenth Amendment itself "expresses a demand for civilized standards.” Louisiana ex rel. Francis v. Resweber, 329 U. S., at 468 (concurring opinion). See Trop v. Dulles, 356 U. S. at 99 (plurality opinion) (dictum). See also Furman v. Georgia, supra, at 291 (Brennan, J., concurring). See Weems v. United States, 217 U. S. 349, 377 (1910) (noting that the punishment of cadena temporal at issue in that case had “no fellow in American legislation”); Furman v. Georgia, supra, at 436-437 (Powell, J., dissenting); Gregg v. Georgia, ante, at 179-181. See Witherspoon v. Illinois, 391 U. S. 510, 519, and n. 15 (1968); McGautha v. California, 402 U. S. 183, 201-202 (1971); Furman v. Georgia, supra, at 388 (Burger, C. J., dissenting); id., at 439-441 (Powell, J., dissenting) (“Any attempt to discern, therefore, where prevailing standards of decency lie must take careful account of the jury’s response to the question of capital punishment”). See H. Bedau, The Death Penalty in America 5-6, 15, 27-28 (rev. ed. 1967) (hereafter Bedau). See id., at 1-2; R. Bye, Capital Punishment in the United States 1-2 (1919) (hereafter Bye). See Bedau 6; Bye 2-3 (most New England Colonies made 12 offenses capital; Rhode Island, with 10 capital crimes, was the “mildest of all of the colonies”); Hartung, Trends in the Use of Capital Punishment, 284 Annals of Am. Academy of Pol. and Soe. Sci. 8, 10 (1952) (“The English colonies in-this country had from ten to eighteen capital offenses”). See Bedau 23-24. See id., at 27; Knowlton, Problems of Jury Discretion in Capital Cases, 101 U. Pa. L. Rev. 1099, 1102 (1953); Mackey, The Inutility of Mandatory Capital Punishment: An Historical Note, 54 B. U. L. Rev. 32 (1974); McGautha v. California, supra, at 198-199; Andres v. United States, 333 U. S. 740, 753 (1948) (Frankfurter, J., concurring); Winston v. United States, 172 U. S. 303, 310 (1899). See Bye 5. During the colonial period, Pennsylvania in 1682 under the Great Law of William Penn limited capital punishment to murder. Following Penn’s death in 1718, however, Pennsylvania greatly expanded the number of capital offenses. See Hartung, supra, n. 16, at 9-10. Many States during the early 19th century significantly reduced the number of crimes punishable by death. See Davis, The Movement to Abolish Capital Punishment in America, 1787-1861, 63 Am. Hist. Rev. 23, 27, and n. 15 (1957). See Bedau 24. See ibid.; Davis, supra, at 26-27, n. 13. By the late 1950’s, some 34 States had adopted the Pennsylvania formulation, and only 10 States retained a single category of murder as defined at common law. See American Law Institute, Model Penal Code § 201.6, Comment 2, p. 66 (Tent.. Draft No. 9, 1959). See McGautha v. California, supra, at 198-199. See Bedau 27; Mackey, supra, n. 18; McGautha v. California, supra, at 199. See Tenn. Laws 1837-1838, c. 29; Ala. Laws 1841; La. Laws 1846, Act No. 139. See also W. Bowers, Executions in America 7 (1974). Prior to the Tennessee reform in 1838, Maryland had changed from a mandatory to an optional death sentence for the crimes of treason, rape, and arson. Md. Laws 1809, c. 138. For a time during the early colonial period Massachusetts, as part of its “Capitall Lawes” of 1636, apparently had a nonmandatory provision for the crime of rape. See Bedau 28. See Bowers, supra, at 7-9 (Table 1-2 sets forth the date each State adopted discretionary jury sentencing); Brief for United States as Amicus Curiae in McGautha v. California, O. T. 1970, No. 70-203, App. B (listing statutes in each State initially introducing discretionary jury sentencing in capital cases), App. C (listing state statutes in force in 197 Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Blackmun delivered the opinion of the Court. This case presents the issue whether an employer, who in 1963 reimbursed lunch expenses of employees who were on company travel but not away overnight, must withhold federal income tax on those reimbursements. Stated another way, the issue is whether the lunch reimbursements qualify as “wages” under § 3401 (a) of the Internal Revenue Code of 1954, 26 U. S. C. § 3401 (a). I The facts are not in any real dispute. Petitioner Central Illinois Public Service Company (Company) is a regulated public utility engaged, in downstate Illinois, in the generation, transmission, distribution, and'sale of electric energy, and in the distribution and sale of natural gas. Its principal office is in Springfield. It serves a geographic area of some size. In order adequately to serve the area, the Company, in accord with long-established policy, reimburses its employees for reasonable, legitimate expenses of transportation, meals, and lodging they incur in travel on the Company’s business. Some of these trips are overnight; on others, the employees return before the end of the business day. In 1963, the tax year in issue, the Company had approximately 1,900 employees. It reimbursed its union employees and the operating employees of its western division (its only nonunionized division) for noon lunches consumed, while on authorized travel, in an amount not to exceed $1.40 per lunch. The amount was specified in the Company’s collective-bargaining agreement with the union. Other salaried employees were reimbursed for actual reasonable luncheon expenses up to a specified maximum amount. An employee on an authorized trip prepared his expense account on a company form. This was turned in to his supervisor for approval. The $1.40 rate sometimes was in excess of the actual lunch cost, but at other times it was insufficient to cover that cost. An employee who took lunch from home with him on a company trip was entitled to reimbursement. If, because of the locality of his work assignment on a particular day, the employee went home for lunch, he was not entitled to reimbursement. Many employees were engaged in open-air labor. Even in 1963 the $1.40 rate was “modest.” The employee on travel status rendered no service to the Company during his lunch. He was off duty and on his own time. He was subject to call, however, as were all employees at any time as emergencies required. The lunch payment was unrelated to the employee’s specific job title, the nature of his work, or his rate of pay. “[T]his lunch payment arrangement was beneficial and convenient for the company and served its business interest. It saved the company employee time otherwise spent in travelling back and forth as well as the usual travel expenses.” During 1963 the Company paid its employees a total of $139,936.12 in reimbursement for noon lunches consumed while away from normal duty stations on nonovernight trips. It did not withhold federal income tax for its employees with respect to the components of this sum. The Company in 1963, however, did withhold and pay federal income withholding taxes totaling $1,966,489.87 with respect to other employee payments. Upon audit in 1971, the Internal Revenue Service took the position that the lunch reimbursements in 1963 qualified as wages subject to withholding. A deficiency of $25,188.50 in withholding taxes was assessed. The Company promptly paid this deficiency together with $11,427.22 interest thereon, a total of $36,615.72. It then immediately filed its claim for refund of the total amount so paid and, with no action forthcoming on the claim for six months, see 26 U. S. C. § 6532 (a) (1), instituted this suit in the United States District Court for the Southern District of Illinois to recover the amount so paid. The District Court ruled in the Company’s favor, holding that the reimbursements in question were not wages subject to withholding.. 405 F. Supp. 748 (1975). The United States Court of Appeals for the Seventh Circuit reversed. 540 F. 2d 300 (1976). Because that decision appeared to be in conflict with the views and decision of the Fourth Circuit in Royster Co. v. United States, 479 F. 2d 387 (1973), we granted certiorari. 431 U. S. 903 (1977). II In Commissioner v. Kowalski, 434 U. S. 77 (1977), decided earlier this Term, the Court held that New Jersey’s cash reimbursements to its highway patrol officers for meals consumed while on patrol duty constituted income to the officers, within the broad definition of gross income under § 61 (a) of the 1954 Code, 26 U. S. C. § 61 (a), and, further, that those cash payments were not excludable under § 119 of the Code, 26 U. S. C. § 119, relating to meals or lodging furnished for the convenience of the employer. Kowalski, however, concerned the federal income tax and the issue of what was income. Its pertinency for the present withholding tax litigation is necessarily confined to the income tax aspects of the lunch reimbursements to the Company’s employees. The income tax issue is not before us in this case. We are confronted here, instead, with the question whether the lunch reimbursements, even though now they may be held to constitute taxable income to the employees who are reimbursed, are or are not “wages” subject to withholding, within the meaning and requirements of §§ 3401-3403 of the Code, 26 U. S. C. §§3401-3403 (1970 ed. and Supp. V). These withholding statutes are in Subtitle C of the Code. The income tax provisions constitute Subtitle A. The income tax is imposed on taxable income. 26 IT. S. C. § 1. Generally, this is gross income minus allowable deductions. 26 IT. S. C. § 63 (a). Section 61 (a) defines as gross income “all income from whatever source derived” including, under § 61 (a) (1), “[c]ompensation for services.” The withholding tax, in some contrast, is confined to wages, § 3402 (a), and § 3401 (a) defines as “wages,” “all remuneration (other than fees paid to a public official) for services performed by an employee for his employer, including the cash value of all remuneration paid in any medium other than cash.” The two concepts — income and wages — obviously are not necessarily the same. Wages usually are income, but many items qualify as income and yet clearly are not wages. Interest, rent, and dividends are ready examples. And the very definition of “wages” in § 3401 (a) itself goes on specifically to exclude certain types of remuneration for an employee’s services to his employer (e. g., combat pay, agricultural labor, certain domestic service). Our task, therefore, is to determine the character of the lunch reimbursements in the light of the definition of “wages” in § 3401 (a), and the Company’s consequent obligation to withhold under § 3402 (a). Before we proceed to the resolution of that issue, however, one further observation about the income tax aspect of lunch reimbursements is in order. Although United States v. Correll, 389 U. S. 299 (1967), restricting to overnight trips the travel expense deduction for meal costs under § 162 (a)(2), dispelled some of the confusion, it is fair to say that until this Court’s very recent decision in Kowalski, the Courts of Appeals have been in disarray on the issue whether, under §§ 61 and 119 of the 1954 Code or under the respective predecessor sections of the 1939 Code, such reimbursements were income at all to the recipients. Thus, even the income tax character of lunch reimbursements was not yet partially clarified before the end of 1967, four full years after the tax year for which withholding taxes on lunch reimbursements are now being claimed from the Company in the present case, and were not entirely clarified until the Kowalski decision a few weeks ago. Ill The Sixteenth, or income tax, Amendment to the Constitution of the United States became effective in February 1913. The ensuing Tariff Act of October 3, 1913, § IIE, 38 Stat. 170, contained, perhaps somewhat surprisingly, a fairly expansive withholding provision. This, however, was repealed and in due course came to be replaced with the predecessor of the current “information at the source” provisions constituting § 6041 et seq. of the 1954 Code, 26 U. S. C. § 6041 et seq. The present withholding system has a later origin in the Victory Tax imposed by the Revenue Act of 1942, § 172, 56 Stat. 884. This, with its then new § 465 (b) of the 1939 Code, embraced the basic definition of “wages” now contained in § 3401 (a) of the 1954 Code. The Victory Tax was replaced by the Current Tax Payment Act of 1943, 57 Stat. 126, and was repealed by the Individual Income Tax Act of 1944, § 6 (a), 58 Stat. 234. The structure of the 1943 Act survives to the present day. Li this legislation of 35 years ago Congress chose not to return to the inclusive language of the Tariff Act of 1913, but, specifically, “in the interest of simplicity and ease of administration,” confined the obligation to withhold to “salaries, wages, and other forms of compensation for personal services.” S. Rep. No. 1631, 77th Cong., 2d Sess., 165 (1942) The committee reports of the time stated consistently that “wages” meant remuneration “if paid for services performed by an employee for his employer” (emphasis supplied). H. R. Rep. No. 2333, 77th Cong., 2d Sess., 126 (1942); S. Rep. No. 1631, 77th Cong., 2d Sess., 166 (1942); H. R. Rep. No. 401, 78th Cong., 1st Sess., 22 (1943); S. Rep. No. 221, 78th Cong., 1st Sess., 17 (1943); H. R. Rep. No. 510, 78th Cong., 1st Sess., 29 (1943). The current regulations also contain the “if” clause, Treas. Reg. on Employment Taxes, §31.3401 (a)-1(a)(2), 26 CFR § 31.3401 (a)-1(a) (2) (1977), and then, in § 31.3401 (a)-1 (b)(2) recite: “Amounts paid specifically — either as advances or reimbursements — for traveling or other bona fide ordinary and necessary expenses incurred or reasonably expected to be incurred in the business of the employer are not wages and are not subject to withholding.” But § 31.3401 (a)-1(b) (9) provides: “The value of any meals or lodging furnished to' an employee by his employer is not subject to withholding if the value of the meals or lodging is excludable from the gross income of the employee. See § 1.119-1 of this chapter (Income Tax Regulations).” The Internal Revenue Service by its Regulations thus now would tie the withholding obligation of the employer to the income tax result for the employee. IV The Government, straightforwardly and simplistically, argues that the definition of “wages” in § 3401 (a) corresponds to the first category of gross income set forth in § 61 (a)(1), and that the two statutes “although not entirely congruent [in their] relationship,” Brief for United States 11, have “equivalent scope,” id., at 15. It is claimed that the meal allowance was compensatory, for it was paid for the performance of assigned service at the place the employer determined. Thus, it is said, there was a direct causal connection between the receipt of the allowance and the performance of services. The allowance, then, was part of a total package of remuneration designed to attract and hold the employee to the Company. The Government further argues that this is in accord with the Court’s pronouncements as to what is compensation for purposes of the tax statutes. It states that § 3401 (a) broadly defines “wages,” and it cites Old Colony Trust Co. v. Commissioner, 279 U. S. 716 (1929), where the Court held employees taxable for the amount of their income taxes paid by their employers; Commissioner v. LoBue, 351 U. S. 243 (1956), where the transfer of assets to an employee at less than fair market value in order to secure better service was held to result in taxable income to the employee; Social Security Board v. Nierotko, 327 U. S. 358 (1946), where the definition of wages under the Social Security Act was at issue; and Otte v. United States, 419 U. S. 43, 49-50 (1974), which concerned the payment of wage claims by a trustee in bankruptcy. For purposes of the tax law, the Government argues, there is no difference between benefits of this kind and traditional wage or salary payments. Both are “[Compensation for services” under §61 (a)(1) and “remuneration ... for services” under § 3401 (a). It would explain away the seemingly pertinent Treas. Reg. § 31.3401 (a)-l(b) (2) on the ground that it relates only to business expenses that are deductible under § 162 (a) of the Code, and that Correll excluded from the benefit of § 162 (a) the cost of meals consumed during nonovernight travel. And it urges that what is important is that the payments at issue were a result of the employment relationship and were a part of the total of the personal benefits that arose out of that relationship. y We do not agree with this rather facile conclusion advanced by the Government. The case, of course, would flow in the Government’s favor if the mere fact that the reimbursements were made in the context of the employer-employee relationship were to govern the withholding tax result. That they were so paid is obvious. But it is one thing to say that the reimbursements constitute income to the employees for income tax purposes, and it is quite another thing to say that it follows therefrom that the reimbursements in 1963 were subject to withholding. There is a gap between the premise and the conclusion and it is a wide one. Considerations that support subjectability to the income tax are not necessarily the same as the considerations that support withholding. To require the employee to carry the risk of his own tax liability is not the same as to require the employer to carry the risk of the tax liability of its employee. Required withholding, therefore, is rightly much narrower than subjectability to income taxation. As we have noted above, withholding, under § 3402, is required only upon wages, and § 3401 (a) defines wages as “all remuneration ... for services performed by an employee for his employer.” When the withholding system was effectuated in 1942, the obligation was confined to wages, and the like, “in the interest of simplicity and ease of administration.” S. Rep. No. 1631, 77th Cong., 2d Sess., 165 (1942). And what is now Treas. Reg. § 31.3401 (a)-l(b)(2), applicable to employers and excluding from the concepts of wages and of withholding amounts “paid specifically ... for traveling or other bona fide ordinary and necessary expenses incurred . . . in the business of the employer,” was issued originally — long prior to the Correll decision in 1967 — as § 404.14 of T. D. 5277, 1943 Cum. Bull. 927, 941. There is nothing in Correll that relates to the withholding provisions, and there is nothing in Treas. Reg. § 31.3401 (a)-1(b) (2) that incorporates any overnight concept. This is so despite the Government’s assertion that “consistently” since 1940, that is, since I. T. 3395, 1940-2 Cum. Bull. 64 (relating to railroad employees and their deducting the cost of room rentals and meals for necessary rest while away from home), it has adhered, to the overnight rule in determining income tax liability. Brief for United States 32. Such consistent adherence to the overnight rule in determining income tax liability — together with the consistent absence of any reference to the overnight rule in the withholding regulations — strongly indicates that it was intended that the overnight rule not apply in determining withholding tax obligations. Decided, cases have made the distinction, between wages and income and have refused to equate the two in withholding or similar controversies. Peoples Life Ins. Co. v. United States, 179 Ct. Cl. 318, 332, 373 F. 2d 924, 932 (1967); Humble Pipe Line Co. v. United States, 194 Ct. Cl. 944, 950, 442 F. 2d 1353, 1356 (1971); Humble Oil & Refining Co. v. United States, 194 Ct. Cl. 920, 442 F. 2d 1362 (1971); Stubbs, Overbeck Associates v. United States, 445 F. 2d 1142 (CA5 1971); Royster Co. v. United States, 479 F. 2d, at 390; Acacia Mutual Life Ins. Co. v. United States, 272 F. Supp. 188 (Md. 1967). The Government would distinguish these cases on the ground that some of them involved overnight travel, the expenses of which would be deductible, and that others were concerned with particularized allowances. We perceive the distinctions but are not persuaded that they blunt the basic difference between the wage and the income concepts the respective courts have emphasized. An expansive and sweeping definition of wages, such as was indulged in by the Court of Appeals, 540 F. 2d, at 302, and is urged by the Government here, is not consistent with the existing withholding system. As noted above, Congress chose simplicity, ease of administration, and confinement to wages as the standard in 1942. This was a standard that was intentionally narrow and precise. It has not been changed by Congress since 1942, although, of course, as is often the case, administrative and other pressures seek to soften and stretch the definition. Because the employer is in a secondary position as to liability for any tax of the employee, it is a matter of obvious concern that, absent further specific congressional action, the employer’s obligation to withhold be precise and not speculative. See Humble Oil & Refining Co. v. United States, 194 Ct. Cl., at 933, 442 F. 2d, at 1369-1370. See also H. R. Rep. No. 94-1515, p. 489 (1976). In 1963 not one regulation or ruling required withholding on any travel expense reimbursement. The intimation was quite the other way. See Treas. Reg. § 31-3401 (a)-1(b) (2). No employer, in viewing the regulations in 1963, could reasonably suspect that a withholding obligation existed. The 1940 ruling upon which the Government would erect its case, I. T. 3395, 1940-2 Cum. Bull. 64, predated the withholding regulations of 1943. Apart from the fact that this was a deduction ruling, it is also significant that the Government did not reflect it in its withholding regulations adopted shortly thereafter. With this omission on the part of the Government, it is hardly reasonable to require an employer to fill the gap on its own account. Further, in 1963 and for some time thereafter all judicial decisions were the other way, even on the deductibility issue. Only with Correll, decided by this Court in 1967, was there a ruling of nondeductibility. And until the Court of Appeals’ decision in the present case, no court had ever held lunch reimbursements to be wages for withholding purposes. The first published pronouncement by the Internal Revenue Service with respect to withholding came only in 1969 with Rev. Rul. 69-592, 1969-2 Cum. Bull. 193, shortly after Correll came down. That Ruling’s suggestion that withholding was a possible requirement (when reimbursed travel expenses exceeded travel deductions) contained no reference whatsoever to wages, and thus avoided any mention of the statutory requirement that the payment must be a wage to be subject to withholding. This is not to say, of course, that the Congress may not subject lunch reimbursements to withholding if in its wisdom it chooses to do so by expanding the definition of wages for withholding. It has not done so as yet. And we cannot justify the Government's attempt to do so by judicial determination. The judgment of the Court of Appeals is reversed. It is so ordered. In 1960 the noon meal reimbursement was $1.30. In 1961 the union negotiated an increase to $1.40. Tr. 93. The Company’s controller testified that the expense accounts of employees entitled to reimbursement for actual amounts expended were carefully reviewed, were often regarded as questionable ($2.50, at the trial date, was considered questionable), and were disallowed if deemed not to be reasonable. Id,, at 64-66. The District Court in its findings, in addition to describing the rate as “modest,” observed: “As a practical matter, it could hardly be considered a money making proposition for an employee.” 405 F. Supp. 748, 749 (SD Ill. 1975). Ibid, There are exceptions. E. g., 26 U. S. C. § 911 (a). E. g., Wilson v. United States, 412 F. 2d 694 (CA1 1969); Commissioner v. Bagley, 374 F. 2d 204 (CA1 1967), cert. denied, 389 U. S. 1046 (1968); Saunders v. Commissioner, 215 F. 2d 768 (CA3 1954); Koerner v. United States, 550 F. 2d 1362 (CA4), cert. denied, 434 U. S. 984 (1977); Smith v. United States, 543 F. 2d 1155 (CA5 1976), vacated and remanded, 434 U. S. 978 (1977); United States v. Barrett, 321 F. 2d 911 (CA5 1963); Magness v. Commissioner, 247 F. 2d 740 (CA5 1957), cert. denied, 355 U. S. 931 (1958); Correll v. United States, 369 F. 2d 87 (CA6 1966), rev’d, 389 U. S. 299 (1967); United States v. Morelan, 356 F. 2d 199 (CA8 1966); Hanson v. Commissioner, 298 F. 2d 391 (CA8 1962); United States v. Keeton, 383 F. 2d 429 (CA10 1967). “All persons . . . [or] corporations . . . having the control ... or payment of . . . salaries [or] wages ... of another person, exceeding $3,000 for any taxable year ... are hereby authorized and required to deduct and withhold from such . . . income such sum as will be sufficient to pay the normal tax imposed thereon by this section . . . .” Act of Oct. 3, 1917, § 1204 (2), 40 Stat. 300. The House would have included withholding on dividends and bond interest as well as wages. H. R. Rep. No. 2333, 77th Cong., 2d Sess., 125 (1942). Similarly, Treas. Reg. §31.3401 (a)-l (b)(10), promulgated originally as § 404.15 of T. D. 5277, excluded from “wages” facilities and privileges (such as entertainment, medical services, and courtesy discounts) offered by the employer. ' Yet those, obviously, are also offered in the employer-employee relationship. See S. Rep. No. 830, 88th Cong., 2d Sess., 208 (1964); H. R. Rep. No. 1149, 88th Cong., 2d Sess., 22 (1964); S. Rep. No. 91-552, p. 110 (1969); H. R. Rep. No. 91-413, p. 77 (1969). See also Rev. Rul. 55-520, 1955-2 Cum. Bull. 393; Rev. Rul. 56-249, 1956-1 Cum. Bull. 488; Rev. Rul. 58-301, 1958-1 Cum. Bull. 23; Rev. Rul. 58-145, 1958-1 Cum. Bull. 360; and Rev. Rul. 59-227, 1959-2 Cum. Bull. 13, modified and superseded prospectively by Rev. Rul. 75-44, 1975-1 Cum. Bull. 15, for other instances of payments made in the employer-employee relationship where withholding was not required despite includability for income tax purposes. In the District Court in the Royster case, the Government abandoned its position that the income tax provisions of the Code were in pari materia with the withholding provisions. See 479 F. 2d, at 388. An imposition of withholding responsibility on the Company for the lunch reimbursements as far back as 1963 strikes us as somewhat retroactive in character and almost punitive in the light of the facts of this case. Needless to say, we do not decide today whether a new regulation that, for withholding purposes, would require the treatment of lunch reimbursements as wages under the existing statute would or would not be valid. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

L

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Breyer delivered the opinion of the Court. The United States and two Indian Tribes have entered into agreements in which the Government promises to pay certain “contract support costs” that the Tribes incurred during fiscal years (FYs) 1994 through 1997. The question before us is whether the Government’s promises are legally binding. We conclude that they are. I The Indian Self-Determination and Education Assistance Act (Act), 88 Stat. 2203, as amended, 25 U. S. C. § 450 et seq. (2000 ed. and Supp. II), authorizes the Government and Indian tribes to enter into contracts in which the tribes promise to supply federally funded services, for example tribal health services, that a Government agency would otherwise provide. See §450f(a); see also §450a(b). The Act specifies that the Government must pay a tribe’s costs, including administrative expenses. See §§ 450j-1(a)(1) and (2). Administrative expenses include (1) the amount that the agency would have spent “for the operation of the progra[m]” had the agency itself managed the program, § 450j-1(a)(1), and (2) “contract support costs,” the costs at issue here. § 450j-l(a)(2). The Act defines “contract support costs” as other “reasonable costs” that a federal agency would not have incurred, but which nonetheless “a tribal organization” acting “as a contractor” would incur “to ensure compliance with the terms of the contract and prudent management.” Ibid. “[Contract support costs” can include indirect administrative costs, such as special auditing or other financial management costs, § 450j-1(a)(3)(A)(ii); they can include direct costs, such as workers’ compensation insurance, § 450j-l(a)(3)(A)(i); and they can include certain startup costs, § 450j — 1 (a)(5). Most contract support costs are indirect costs “generally calculated by applying an ‘indirect cost rate’ to the amount of funds otherwise payable to the Tribe.” Brief for Federal Parties 7; see 25 U. S. C. §§ 450b(f)-(g). The first case before us concerns Shoshone-Paiute contracts for FYs 1996 and 1997 and a Cherokee Nation contract for 1997. The second case concerns Cherokee Nation contracts for FYs 1994, 1995, and 1996. In each contract, the Tribe agreed to supply health services that a Government agency, the Indian Health Service, would otherwise have provided. See, e.g., App. 88-92 (Shoshone-Paiute Tribal Health Compact), 173-175 (Compact between the United States and the Cherokee Nation). Each contract included an “Annual Funding Agreement” with a Government promise to pay contract support costs. See, e. g., id., at 104-128, 253-264. In each instance, the Government refused to pay the full amount promised because, the Government says, Congress did not appropriate sufficient funds. Both cases began as administrative proceedings. In the first case, the Tribes submitted claims seeking payment under the Contract Disputes Act of 1978, 92 Stat. 2383, 41 U. S. C. §601 et seq., and the Act, 25 U. S. C. §§450m-1(a), (d), 458cc(h), from the Department of the Interior (which manages the relevant appropriations). See, e. g., App. 150-151, 201-203. The Department denied their claim; they then brought a breach-of-contract action in the Federal District Court for the Eastern District of Oklahoma seeking $3.5 million (Shoshone-Paiute) and $3.4 million (Cherokee Nation). See Cherokee Nation of Okla. v. Thompson, 311 F. 3d 1054, 1059 (CA10 2002). The District Court found against the Tribes. Cherokee Nation of Okla. v. United States, 190 F. Supp. 2d 1248 (ED Okla. 2001). And the Court of Appeals for the Tenth Circuit affirmed. 311 F. 3d 1054 (2002). In the second case, the Cherokee Nation submitted claims to the Department of the Interior. See App. 229-230. A contracting officer denied the claims; the Board of Contract Appeals reversed this ruling, ordering the Government to pay $8.5 million in damages. Cherokee Nation of Okla., 1999-2 BCA ¶ 30,462, p. 150488; App. to Pet. for Cert. in No. 03-853, pp. 38a-40a. The Government sought judicial review in the Court of Appeals for the Federal Circuit. The Federal Circuit affirmed the Board’s determination for the Tribe. Thompson v. Cherokee Nation of Okla., 334 F. 3d 1075 (2003). In light of the identical nature of the claims in the two cases and the opposite results that the two Courts of Appeals have reached, we granted certiorari. We now affirm the Federal Circuit’s judgment in favor of the Cherokee Nation, and we reverse the Tenth Circuit’s judgment in favor of the Government. II The Government does not deny that it promised to pay the relevant contract support costs. . Nor does it deny that it failed to pay. Its sole defense consists of the argument that it is legally bound by its promises if, and only if, Congress appropriated sufficient funds, and that, in this instance, Congress failed to do so. The Government in effect concedes yet more. It does not deny that, were these contracts ordinary procurement contracts, its promises to pay would be legally binding. The Tribes point out that each year Congress appropriated far more than the amounts here at issue (between $1,277 billion and $1,419 billion) for the Indian Health Service “to carry out,” inter alia, “the Indian Self-Determination Act.” See 107 Stat. 1408 (1993); 108 Stat. 2527-2528 (1994); 110 Stat. 1321-189 (1996); id., at 3009-212 to. 3009-213. These appropriations Acts contained no relevant statutory restriction. The Tribes (and their amici) add, first, that this Court has said that “a fundamental principle of appropriations law is that where Congress merely appropriates lump-sum amounts without statutorily restricting what can be done with those funds, a clear inference arises that it does not intend to impose legally binding restrictions, and indicia in committee reports and other legislative history as to how the funds should or are expected to be spent do not establish any legal requirements on the agency.” Lincoln v. Vigil, 508 U. S. 182, 192 (1993) (internal quotation marks omitted). See also International Union, United Auto., Aerospace & Agricultural Implement Workers of America v. Donovan, 746 F. 2d 855, 860-861 (CADC 1984) (Scalia, J.); Blackhawk Heating & Plumbing Co. v. United States, 224 Ct. Cl. 111, 135, and n. 9, 622 F. 2d 539, 552, and n. 9 (1980). The Tribes and their amici add, second, that as long as Congress has appropriated sufficient legally unrestricted funds to pay the contracts at issue, the Government normally cannot back out of a promise to pay on grounds of “insufficient appropriations,” even if the contract uses language such as “subject to the availability of appropriations,” and even if an agency’s total lump-sum appropriation is insufficient to pay all the contracts the agency has made. See Ferris v. United States, 27 Ct. Cl. 542, 546 (1892) (“A contractor who is one of several persons to be paid out of an appropriation is not chargeable with knowledge of its administration, nor can his legal rights be affected or impaired by its maladministration or by its diversion, whether legal or illegal, to other objects”); see also Blackhawk, supra, at 135, and n. 9, 622 F. 2d, at 552, and n. 9. As we have said, the Government denies none of this. Thus, if it is nonetheless to demonstrate that its promises were not legally binding, it must show something special about the promises here at issue. That is precisely what the Government here tries, but fails, to do. A The Government initially argues that the Act creates a special kind of “self-determination eontrac[t]” with a “unique, government-to-government nature” that differentiates it from “standard government procurement contracts.” Brief for Federal Parties 4. Because a tribe does not bargain with the Government at arm’s length, id., at 24, the law should charge it with knowledge that the Government has entered into other, similar contracts with other tribes; the tribe should bear the risk that a total lump-sum appropriation (though sufficient to cover its own contracts) will not prove sufficient to pay all similar contracts, id., at 23-25. Because such a tribe has elected to “ste[p] into the shoes of a federal agency,” id., at 25, the law should treat it like an agency; and an agency enjoys no legal entitlement to receive promised amounts from Congress, id., at 24-25. Rather, a tribe should receive only the portion of the total lump-sum appropriation allocated to it, not the entire sum to which a private contractor might well be entitled. Id., at 24. The Government finds support for this special treatment of its promises made pursuant to the Act by pointing to a statutory provision stating that “‘no [self-determination] contract . . . shall be construed to be a procurement contract,’ ” id., at 23 (quoting 25 U. S. C. §450b(j); alterations in original). It finds supplementary support in another provision that says that a tribe need not deliver services ‘“in excess of the amount of funds awarded/” Brief for Federal Parties 24 (quoting 25 U. S. C. §4501(c); citing § 458aaa-7(k)). These statutory provisions, in our view, fall well short of providing the support the Government needs. In general, the Act’s language runs counter to the Government’s view. That language strongly suggests that Congress, in respect to the binding nature of a promise, meant to treat alike promises made under the Act and ordinary contractual promises (say, those made in procurement contracts). The Act, for example, uses the word “contract” 426 times to describe the nature of the Government’s promise; and the word “contract” normally refers to “a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty,” Restatement (Second) of Contracts §1 (1979). The Act also describes payment of contract support costs in a provision, setting forth a sample “Contract.” 25 U. S. C. § 450l(c) (Model Agreement §§ 1(a)(1), (b)(4)). Further, the Act says that if the Government refuses to pay, then contractors are entitled to “money damages” in accordance with the Contract Disputes Act. 25 U. S. C. §450m-1(a); see also §§450m-1(d), 458ee(h). Neither do the Act’s general purposes support any special treatment. The Act seeks greater tribal self-reliance brought about through more “effective and meaningful participation by the Indian people” in, and less “Federal domination” of, “programs for, and services to, Indians.” §450a(b). The Act also reflects a congressional concern with Government’s past failure adequately to reimburse tribes’ indirect administrative costs and a congressional decision to require payment of those costs in the future. See, e. g., § 450j—1(g); see also §§ 450j-1(a), (d)(2). The specific statutory language to which the Government points — stating that tribes need not spend funds “in excess of the amount of funds awarded,” § 450i(c) (Model Agreement § 1(b)(5)) — does not help the Government. Cf. Brief for Federal Parties 18. This kind of statement often appears in ordinary procurement contracts. See, e.g., 48 CFR §52.232-20(d)(2) (2004) (sample “Limitation of Cost” clause); see generally W. Keyes, Government Contracts Under the Federal Acquisition Regulation § 32.38, p. 724 (3d ed. 2003). Nor can the Government find adequate support in the statute’s statement that “no [self-determination] contract . . . shall be construed to be a procurement contract.” 25 U. S. C. §450b(j). In context, that statement seems designed to relieve tribes and the Government of the technical burdens that often accompany procurement, not to weaken a contract’s binding nature. Cf. 41 CFR §3-4.6001 (1976) (applying procurement rules to tribal contracts); S. Rep. No. 100-274, p. 7 (1987) (noting that application of procurement rules to contracts with tribes “resulted in excessive paperwork and unduly burdensome reporting requirements”); id., at 18-19 (describing decision not to apply procurement rules to tribal contracts as intended to “greatly reduc[e]” the federal bureaucracy associated with them). Finally, we have found no indication that Congress believed or accepted the Government’s current claim that, because of mutual self-awareness among tribal contractors, tribes, not the Government, should bear the risk that an unrestricted lump-sum appropriation would prove insufficient to pay all contractors. Compare Brief for Federal Parties 23-24 with Ferris, 27 Ct. Cl., at 546. B The Government next points to an Act proviso, which states: “Notwithstanding any other provision in this subchap-ter, the provision of funds under this subchapter is [1] subject to the availability of appropriations and the Secretary [2] is not required to reduce funding for programs, projects, or activities serving a tribe to make funds available to another tribe or tribal organization under this subchapter.” 25 U. S. C. §450j-1(b) (emphasis and bracketed numbers added). The Government believes that the two italicized phrases, taken separately or together, render its promises nonbinding. 1 We begin with phrase [2]. This phrase, says the Government, makes nonbinding a promise to pay one tribe’s costs where doing so would require funds that the Government would otherwise devote to “programs, projects, or activities serving ... another tribe,” ibid. See Brief for Federal Parties 27-36. This argument is inadequate, however, for at the least it runs up against the fact — found by the Federal Circuit, see 334 F. 3d, at 1093-1094, and nowhere here denied— that the relevant congressional appropriations contained other unrestricted funds, small in amount but sufficient to pay the claims at issue. And as we have said, supra, at 636-638, the Government itself tells us that, in the case of ordinary contracts, say, procurement contracts, “if the amount of an unrestricted appropriation is sufficient to fund the contract, the contractor is entitled to payment even if the agency has allocated the funds to another purpose or assumes other obligations that exhaust the funds.” Brief for Federal Parties 23 (emphasis added). See, e. g., Lincoln, 508 U. S., at 192; Blackhawk, 224 Ct. Cl., at 135, and n. 9, 622 F. 2d, at 552, and n. 9; Ferris, supra, at 546. The Government argues that these other funds, though legally unrestricted (as far as the appropriations statutes’ language is concerned), were nonetheless unavailable to pay “contract support costs” because the Government had to use those funds to satisfy a critically important need, namely, to pay the costs of “inherent federal functions,” such as the cost of running the Indian Health Service’s central Washington office. Brief for Federal Parties 9-10, 27-34. This argument cannot help the Government, however, for it amounts to no more than a claim that the agency has allocated the funds to another purpose, albeit potentially a very important purpose. If an important alternative need for funds cannot rescue the Government from the binding effect of its promises where ordinary procurement contracts are at issue, it cannot rescue the Government here, for we can find nothing special in the statute’s language or in the contracts. The Government’s best effort to find something special in the statutory language is unpersuasive. The Government points to language that forbids the Government to enter into a contract with a tribe in which it promises to pay the tribe for performing federal functions. See 25 U. S. C. § 458aaa-6(c)(1)(A)(ii); see also §§450f(a)(2)(E), 450j-1(a)(1), 450l(c) (Model Agreement § 1(a)(2)). Language of this kind, however, which forbids the Government to contract for certain kinds of services, says nothing about the source of funds used to pay for the supply of contractually legitimate activities (and that is what is at issue here). We recognize that agencies may sometimes find that they must spend unrestricted appropriated funds to satisfy needs they believe more important than fulfilling a contractual obligation. But the law normally expects the Government to avoid such situations, for example, by refraining from making less essential contractual commitments; or by asking Congress in advance to protect funds needed for more essential purposes with statutory earmarks; or by seeking added funding from Congress; or, if necessary, by using unrestricted funds for the more essential purpose while leaving the contractor free to pursue appropriate legal remedies arising because the Government broke its contractual promise. See New York Airways, Inc. v. United States, 177 Ct. Cl. 800, 808-811, 369 F. 2d 743, 747-748 (1966) (per curiam); 31 U. S. C. §§ 1341(a)(1)(A) and (B) (Anti-Deficiency Act); 41 U. S. C. § 601 et seq. (Contract Disputes Act); 31 U. S. C. § 1304 (Judgment Fund); see generally 2 General Accounting Office, Principles of Federal Appropriations Law 6-17 to 6-19 (2d ed. 1992) (hereinafter GAO Redbook). The Government, without denying that this is so as a general matter of procurement law, says nothing to convince us that a different legal rule should apply here. 2 Phrase [1] of the proviso says that the Government’s provision of funds under the Act is “subject to the availability of appropriations.” 25 U.S.C. §450j—1(b). This language does not help the Government either. Language of this kind is often used with respect to Government contracts. See, e.g., 22 U.S.C. §2716(a)(1); 42 U.S.C. §§6249(b)(4), 12206(d)(1). This kind of language normally makes clear that an agency and a contracting party can negotiate a contract prior to the beginning of a fiscal year but that the contract will not become binding unless and until Congress appropriates funds for that year. See, e.g., Blackhawk, supra, at 133-138, 622 F. 2d, at 551-553; see generally 1 GAO Redbook 4-6 (3d ed. 2004); 2 id., at 6-6 to 6-8, 6-17 to 6-19 (2d ed. 1992). It also makes clear that a Government contracting officer lacks any special statutory authority needed to bind the Government without regard to the availability of appropriations. See Ferris, 27 Ct. Cl., at 546; New York Airways, supra, at 809-813, 369 F. 2d, at 748-749; Dougherty v. United States, 18 Ct. Cl. 496, 503 (1883); 31 U.S.C. §§ 1341(a)(1)(A) and (B) (providing that without some such special authority, a contracting officer cannot bind the Government in the absence of an appropriation). Since Congress appropriated adequate unrestricted funds here, phrase [1], if interpreted as ordinarily understood, would not help the Government. The Government again argues for a special interpretation. It says the language amounts to “an affirmative grant of authority to the Secretary to adjust funding levels based on appropriations.” Brief for Federal Parties 41 (emphasis in original). In so arguing, the Government in effect claims (on the basis of this language) to have the legal right to disregard its contractual promises if, for example, it reasonably finds other, more important uses for an otherwise adequate lump-sum appropriation. In our view, however, the Government must again shoulder the burden of explaining why, in the context of Government contracts, we should not give this kind of statutory language its ordinary contract-related interpretation, at least in the absence of a showing that Congress meant the contrary. We believe it important to provide a uniform interpretation of similar language used in comparable statutes, lest legal uncertainty undermine contractors’ confidence that they will be paid, and in turn increase the cost to the Government of purchasing goods and services. See, e. g., Franconia Associates v. United States, 536 U. S. 129, 142 (2002); United States v. Winstar Corp., 518 U. S. 839, 884-885, and n. 29 (1996) (plurality opinion); id., at 913 (Breyer, J., concurring); Lynch v. United States, 292 U. S. 571, 580 (1934). The Government, in our view, has provided no convincing argument for a special, rather than ordinary, interpretation here. The Government refers to legislative history, see Brief for Federal Parties 41-42 (citing, e. g., S. Rep. No. 100-274, at 48, 57), but that history shows only that Executive Branch officials would have liked to exercise discretionary authority to allocate a lump-sum appropriation too small to pay for all the contracts that the Government had entered into; the history does not show that Congress granted such authority. Nor can we find sufficient support in the other statutory provisions to which the Government points. See 25 U. S. C. §450j-1 (c)(2) (requiring the Government to report underpayments of promised contract support costs); 107 Stat. 1408 (Appropriations Act for FY 1994) (providing that $7.5 million for contract support costs in “initial or expanded” contracts “shall remain available” until expended); 108 Stat. 2528 (same for FY 1995); 110 Stat. 1321-189 (same for FY 1996); id., at 3009-213 (same for FY 1997). We cannot adopt the Government’s special interpretation of phrase [1] of the proviso. C Finally, the Government points to a later enacted statute, § 314 of the Department of the Interior and Related Agencies Appropriations Act, 1999, which says: “Notwithstanding any other provision of law [the] amounts appropriated to or earmarked in committee reports for the ... Indian Health Service ... for payments to tribes ... for contract support costs ... are the total amounts available for fiscal years 1994 through 1998 for such purposes.” 112 Stat. 2681-288 (emphasis added). See Brief for Federal Parties 45-50. The Government adds that congressional Committee Reports “earmarked,” i. e., restricted, appropriations available to pay “contract support costs” in each of FYs 1994 through 1997. Id., at 48. And those amounts have long since been spent. See id., at 12. Since those amounts “are the total amounts available for” payment of “contract support costs,” the Government says, it is unlawful to pay the Tribes’ claims. Id., at 45-48. The language in question is open to the interpretation that it retroactively bars payment of claims arising under 1994 through 1997 contracts. It is also open to another interpretation. Just prior to Congress’ enactment of § 314, the Interior Department’s Board of Contract Appeals considered a case similar to the present ones and held that the Government was legally bound to pay amounts it had promised in similar contracts. Alamo Navajo School Bd., Inc. and Miccosukee Corp., 1998-2 BCA ¶ 29,831, p. 147681 (1997), and ¶ 29,832, p. 147699 (1998). The Indian Health Service contemporaneously issued a draft document that suggested the use of unspent funds appropriated in prior years to pay unpaid “contract support costs.” App. 206-209. Indeed, the document referred to use of unobligated funds from years including 1994 through 1997 to pay “contract support cost” debts. Id., at 206-207. Section 314’s language may be read as simply forbidding the Service to use those leftover funds for that purpose. On the basis of language alone we would find either interpretation reasonable. But there are other considerations. The first interpretation would undo a binding governmental contractual promise. A statute that retroactively repudiates the Government’s contractual obligation may violate the Constitution. See, e. g., Winstar, supra, at 875-876 (plurality opinion); Perry v. United States, 294 U. S. 330, 350-351 (1935); Lynch, supra, at 579-580; United States v. Klein, 13 Wall. 128, 144-147 (1872); see also, e. g., Winstar, supra, at 884-885, and n. 29 (plurality opinion) (describing practical disadvantages flowing from governmental repudiation); Lynch, supra, at 580 (same). And such an interpretation is disfavored. See Clark v. Martinez, ante, at 380-382; Zadvydas v. Davis, 533 U. S. 678, 689 (2001); Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988). This consideration tips the balance against the retroactive interpretation. The Government, itself not relying on either interpretation, offers us a third. It says that the statute simply clarifies earlier ambiguous appropriations language that was wrongly read as unrestricted. Brief for Federal Parties 48 (citing Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 380-381 (1969)). The earlier appropriations statutes, however, were not ambiguous. The relevant ease law makes clear that restrictive language contained in Committee Reports is not legally binding. See, e. g., Lincoln, 508 U. S., at 192; International Union, 746 F. 2d, at 860-861; Blackhawk, 224 Ct. Cl., at 135, and n. 9, 622 F. 2d, at 552, and n. 9. No other restrictive language exists. The earlier appropriations statutes unambiguously provided unrestricted lump-sum appropriations. We therefore cannot accept the Government’s interpretation of § 314. Hence we, like the Federal Circuit, are left with the second interpretation, which we adopt, concluding that Congress intended it in the circumstances. See Zadvydas, supra, at 689; cf. 334 F. 3d, at 1092. So interpreted, the provision does not bar recovery here. For these reasons, we affirm the judgment of the Federal Circuit; we reverse the judgment of the Tenth Circuit; and we remand the cases for further proceedings consistent with this opinion. It is so ordered. The Chief Justice took no part in the decision of these cases. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Per Curiam. The judgment is vacated and the case is remanded to the Supreme Court of Alaska for further consideration in light of Pickering v. Board of Education of Township High School District 205, Will County, ante, p. 563. Mr. Justice Douglas, with whom Mr. Justice Black joins, would reverse the judgment outright for the reasons stated by him in Pickering v. Board of Education, ante, p. 575. Mr. Justice White dissents. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

C

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Per Curiam. In separate trials, appellees were convicted of violating Fla. Stat. §800.01 (1965), which proscribed “the abominable and detestable crime against nature, either with mankind or with beast . ...” Having exhausted state remedies, appellees sought federal habeas corpus, asserting, among other things, that the Florida statute was impermissibly vague. The writ was granted to both appellees. The Court of Appeals affirmed on the sole ground that § 800.01 was unconstitutionally vague and void on its face for failure to give appellees adequate notice that the conduct for which they were convicted was forbidden by law. 478 F. 2d 390 (CA5 1973). We reverse. We perceive no violation of the “underlying principle . . . that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” United States v. Harriss, 347 U. S. 612, 617 (1954). Stone was convicted for copulation per os and per anum, Huffman for copulation per anum. These very acts had long been held to constitute “the abominable and detestable crime against nature” under § 800.01 and predecessor statutes. Delaney v. State, 190 So. 2d 578 (Fla. Sup. Ct. 1966), appeal dismissed, 387 U. S. 426 (1967), declared as much; and this had been the case since 1921 under Ephraim v. State, 82 Fla. 93, 89 So. 344 (1921). Delaney also held that there could be no complaint of vagueness or lack of notice that the defendant's conduct was criminal where the acts committed were among those that prior cases had held covered by the statute. Delaney and its supporting cases require reversal of the - Court of Appeals. The judgment of federal courts as to the vagueness or not of a state statute must be made in the light of prior state constructions of the statute. For the purpose of determining whether a state statute is too vague and indefinite to constitute valid legislation “we must take the statute as though it read precisely as the highest court of the State has interpreted it.” Minnesota ex rel. Pearson v. Probate Court, 309 U. S. 270, 273 (1940). When a state statute has been construed to forbid identifiable conduct so that “interpretation by [the state court] puts these words in the statute as definitely as if it had been so amended by the legislature,” claims of impermissible vagueness must be judged in that light. Winters v. New York, 333 U. S. 507, 514 (1948). This has been the normal view in this Court. Fox v. Washington, 236 U. S. 273, 277 (1915); Beauharnais v. Illinois, 343 U. S. 250, 253 (1952); Mishkin v. New York, 383 U. S. 502, 506 (1966). The Court of Appeals, therefore, was not free to ignore Delaney and related cases; and as construed by those cases, § 800.01 afforded appellees ample notice that their conduct was forbidden by law. Appellees rely on Franklin v. State, 257 So. 2d 21 (Fla. Sup. Ct. 1971), to avoid the efficacy of prior constructions of § 800.01. In that case, decided after appellees’ convictions had become final, the Florida Supreme Court reconsidered Delaney and held that if § 800.01 was intended to reach oral and anal sexual activity, that intention should appear on the face of the statute; otherwise it was void for vagueness and uncertainty in its language. But this holding did not remove the fact that when appellees committed the acts with which they were charged, they were on clear notice that their conduct was criminal under the statute as then construed. Thus, the Florida Supreme Court expressly ruled in Franklin that “this judgment holding the felony statute void is not retroactive, but prospective only,” id., at 24; and subsequently the Florida courts denied appellee Stone’s request for relief based on the Franklin case. Stone v. State, supra, n. 2. The State Supreme Court did not overrule Delaney with respect to pre-Franklin convictions. Nor was it constitutionally compelled to do so or to make retroactive its new construction of the Florida statute: “A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions.” Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U. S. 358, 364 (1932). Contrary to the judgment of the Court of Appeals, § 800.01 was not void at the time appellees performed the acts for which they were convicted. The motion of appellees to proceed in forma pauperis is granted and the judgment of the Court of Appeals is reversed. So ordered. Fla. Stat. §800.01 (Supp. 1973) presently provides: “Whoever commits the abominable and detestable crime against nature, either with mankind or with beast, shall be guilty of a felony of the second degree, punishable as provided in [other statutory sections].” At the time of appellees’ convictions the maximum penalty was 20 years’ imprisonment. Appellee Stone’s conviction was affirmed on direct appeal, Stone v. State, 245 So. 2d 91 (Fla. Dist. Ct. App. 1971), and his motion for post-conviction relief was denied. Stone v. State, 264 So. 2d 81 (Fla. Dist. Ct. App.), cert. denied, 267 So. 2d 329 (Fla. Sup. Ct. 1972). It appears that appellee Huffman appealed from his conviction, but did not seek collateral relief. The District Court found exhaustion unnecessary since Huffman’s claim had already been determined adversely by the ruling in Franklin v. State, 257 So. 2d 21 (Fla. Sup. Ct. 1971), discussed in text infra. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

E

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Per Curiam. Respondent was one of six inmates involved in a 1971 San Quentin Prison escape that resulted in the death of three prisoners and three corrections officers. The State of California jointly tried respondent and five other prisoners on numerous charges, including murder, conspiracy, and assault. The prosecution attempted to show that the Black Panther Party had organized the escape attempt and to link respondent to the conspiracy through his membership in that Party. Respondent’s defense was that state police had organized the breakout and ambushed the escapees to eliminate an important faction of the Black Panther Party. During voir dire, the court admonished prospective jurors to reveal their associations, if any, with crimes of violence and their attitudes toward radical groups, including the Black Panthers. Patricia Pagan, who became a juror, testified at voir dire that she had no personal knowledge of violent crimes — as a witness, victim, or otherwise — and that she did not associate the Black Panther Party with any form of violence. However, in the course of the 17-month-long trial, evidence was introduced of a crime, unrelated to those at issue in respondent’s trial, of which juror Pagan had some knowledge. A defense witness identified a Black Panther named Pratt as a police informant involved in the alleged police plot. The prosecution sought to impeach this witness by introducing evidence that Pratt was in custody for the 1968 murder of a Santa Monica woman during the entire period at issue. This evidence triggered juror Fagan’s recollection of the murder of a childhood friend, who was the woman Pratt had been convicted of killing. Upon hearing the evidence about Pratt, juror Fagan twice went to the trial judge’s chambers to tell him of her personal acquaintance with Pratt’s 1968 murder victim. She told him that she feared that she might cry if the 1968 murder were explored further at trial. The judge asked her on each occasion whether her disposition of the case would be affected. She assured him that it would not. The judge told her not to be concerned and that the matter probably would not be mentioned again. He made no record of either conversation, and he did not inform the defendants or their counsel about them. At the close of trial, the jury found respondent guilty of two counts of murder and of conspiracy to escape, and acquitted him of the remaining charges. The jury also convicted two other defendants of assault, and found insufficient evidence to support the numerous remaining charges. Respondent was sentenced to life imprisonment. Counsel for respondent subsequently learned of the ex parte communications between judge and juror and moved for a new trial. At a hearing on the motion, juror Fagan testified that she had not remembered her friend’s death during voir dire and that her subsequent recollection did not affect her ability impartially to judge respondent’s innocence or guilt. She admitted telling other jurors that she personally knew Pratt’s 1968 murder victim, but denied making any disparaging remarks about the Black Panther Party. The trial judge concluded that the ex parte communications “lacked any significance” and that respondent suffered no prejudice therefrom. See App. C to Pet. for Cert. 22. Accordingly, he denied the motion for new trial. The California Court of Appeal affirmed the conviction. It found the ex 'parte communication to be federal constitutional error that was harmless' “beyond a reasonable doubt” because the jury’s deliberations, as a whole, were unbiased. Id., at 28-35. The California Supreme Court denied review. Respondent then petitioned for a writ of habeas corpus in Federal District Court. The District Court issued the writ, ruling that the ex parte communications between judge and juror violated both respondent’s right to be present during all critical stages of the proceedings and his right to be represented by counsel. 543 F. Supp. 757 (ND Cal. 1982). Furthermore, the District Court held that automatic reversal was necessary because the absence of a contemporaneous record made intelligent application of the harmless-error standard impossible. Alternatively, it concluded that a post-trial hearing could not establish that the constitutional error was harmless beyond a reasonable doubt. Thus, it found that respondent’s conviction had to be vacated because of the state court’s failure to hold a contemporaneous hearing about, or to make a contemporaneous record of, the ex parte communication. The Court of Appeals for the Ninth Circuit affirmed on the basis that an unrecorded ex parte communication between trial judge and juror can never be harmless error. Judgment order reported at 701 F. 2d 186 (1983). We emphatically disagree. Our cases recognize that the right to personal presence at all critical stages of the trial and the right to counsel are fundamental rights of each criminal defendant. “At the same time and without detracting from the fundamental importance of [these rights], we have implicitly recognized the necessity for preserving society’s interest in the administration of criminal justice. Cases involving [such constitutional] deprivations are [therefore] subject to the general rule that remedies should be tailored to the injury suffered . . . and should not unnecessarily infringe on competing interests.” United States v. Morrison, 449 U. S. 361, 364 (1981); see also Rogers v. United States, 422 U. S. 35, 38-40 (1975). In this spirit, we have previously noted that the Constitution “does not require a new trial every time a juror has been placed in a potentially compromising situation . . . [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.” Smith v. Phillips, 455 U. S. 209, 217 (1982). There is scarcely a lengthy trial in which one or more jurors do not have occasion to speak to the trial judge about something, whether it relates to a matter of personal comfort or to some aspect of the trial. The lower federal courts’ conclusion that an unrecorded ex parte communication between trial judge and juror can never be harmless error ignores these day-to-day realities of courtroom life and undermines society’s interest in the administration of criminal justice. This is not to say that ex parte communications between judge and juror are never of serious concern or that a federal court on habeas may never overturn a conviction for prejudice resulting from such communications. When an ex parte communication relates to some aspect of the trial, the trial judge generally should disclose the communication to counsel for all parties. The prejudicial effect of a failure to do so, however, can normally be determined by a post-trial hearing. The adequacy of any remedy is determined solely by its ability to mitigate constitutional error, if any, that has occurred. See, e. g., United States v. Morrison, supra, at 365; Rogers v. United States, supra, at 40. Post-trial hearings are adequately tailored to this task. See, e. g., Smith v. Phillips, supra, at 218-219, and n. 8; Remmer v. United States, 347 U. S. 227, 230 (1954). The final decision whether the alleged constitutional error was harmless is one of federal law. Chapman v. California, 386 U. S. 18, 20-21 (1967). Nevertheless, the factual findings arising out of the state courts’ post-trial hearings are entitled to a presumption of correctness. See 28 U. S. C. § 2254(d); Sumner v. Mata, 449 U. S. 539 (1981). The substance of the ex parte communications and their effect on juror impartiality are questions of historical fact entitled to this presumption. Thus, they must be determined, in the first instance, by state courts and deferred to, in the absence of “convincing evidence” to the contrary, by the federal courts. See Marshall v. Lonberger, 459 U. S. 422, 431-432 (1983). Here, both the State’s trial and appellate courts concluded that the jury's deliberations, as a whole, were not biased. This finding of “fact” — on a question the state courts were in a far better position than the federal courts to answer — deserves a “high measure of deference,” Sumner v. Mata, 455 U. S. 591, 598 (1982), and may be set aside only if it “lack[s] even ‘fair support’ in the record.” Marshall v. Lonberger, 459 U. S., at 432. The absence of a contemporaneous recording will rarely deprive the finding of “even ‘fai[r] suppor[t]’ in the record.” See ibid. The post-trial hearing in this ease created more than adequate support for the conclusion that juror Fagan’s presence on the jury did not prejudice respondent. The 1968 murder was not related to the crimes at issue in the trial. Pratt was not connected to any of the offenses for which respondent was convicted, and he did not testify at the trial. Juror Fagan never willfully concealed her association with the Santa Monica crime, and she repeatedly testified that, upon recollection, the incident did not affect her impartiality. She turned to the most natural source of information — the trial judge — to disclose the information she should have recalled but failed to recall during voir dire. Their ex parte communication was innocuous. They did not discuss any fact in controversy or any law applicable to the case. The judge simply assured her that there was no cause for concern. Thus, the state courts had convincing evidence that the jury’s deliberations, as a whole, were not biased by the undisclosed communication of juror Fagan’s recollection. The lower federal courts should have deferred to this presumptively correct state-court finding and therefore should have found the alleged constitutional error harmless beyond a reasonable doubt. Accordingly, we grant the motion of respondent for leave to proceed informa pauperis and the petition for certiorari, vacate the judgment of the Court of Appeals, and remand the case for further proceedings consistent with this opinion. It is so ordered. Justice Brennan dissents from this summary disposition. He would grant the petition for certiorari and set the case for oral argument. Respondent also argued that his due process right to be presumed innocent was violated when he was forced to stand trial shackled and chained. Neither the District Court nor the Court of Appeals reached this issue. Given our disposition of the case, this issue only remains to be resolved on remand. Petitioners have apparently conceded, in both federal and state court, that the undisclosed ex parte communications established federal constitutional error. See Pet. for Cert. 29-31. We acknowledge that the trial judge promptly should have notified counsel for all parties after the juror approached him. Whether the error was of constitutional dimension in this case is not before us. Because we find that no actual prejudice was shown, we assume, without deciding, that respondent’s constitutional rights to presence and counsel were implicated in the circumstances of this case. Justice Stevens suggests that the only constitutional right implicated in this case is a possible due process right to a midtrial hearing on the subject of the juror’s impartiality. See post, at 126 (Stevens, J., concurring in judgment). Had the State raised the underlying constitutional right as an issue in the courts below and in the petition for certiorari, this approach might merit consideration. But the case came to us alleging harmless violations of the right to be present during all critical stages of the proceedings and the right to be represented by counsel, and we therefore analyze only that challenge. These rights, as with most constitutional rights, are subject to harmless-error analysis, see, e. g., United States v. Morrison, 449 U. S. 361, 364-365 (1981) (right to counsel); Snyder v. Massachusetts, 291 U. S. 97, 114-118 (1934) (right to presence), unless the deprivation, by its very nature, cannot be harmless. See, e. g., Gideon v. Wainright, 372 U. S. 335 (1963). Thus, we have refused, on facts more troublesome than these, to find inherent bias in a verdict when a state trial court determined “beyond a reasonable doubt” that a juror’s out-of-court action did not influence the verdict. In Smith v. Phillips, 455 U. S. 209 (1982), a criminal defendant contended that he had been denied due process because, during his state-court trial, one of the jurors applied to the prosecutor’s office for a job as an investigator. The application was not brought to the parties’ attention until sometime after the verdict was rendered. The state court held a post-trial hearing and, relying on the juror’s own testimony, found “beyond a reasonable doubt” that the juror’s action had not influenced the verdict. We concluded that, in the circumstances of that case, it would not be proper to impute bias in the verdict or to find a post-trial hearing inadequate as a remedy for the alleged due process violation. Id., at 219. The facts here involve no inference of juror misconduct or third-party influence, and therefore are of far less concern than the conduct at issue in Smith. See infra, at 120-121. Thus, a post-trial hearing is adequate to discover whether respondent was prejudiced by the undisclosed communications about juror Fagan’s recollection. See, e. g., Rogers v. United States, 422 U. S. 35, 38-40 (1975) (although violation of Federal Rule of Criminal Procedure 43 may be harmless error, additional instructions from judge to jury, without notification to defendant or his counsel, is not); Shields v. United States, 273 U. S. 583, 588-589 (1927) (undisclosed instructions from judge' to jury violate non-constitutionally based rules of orderly trial procedure); Fillippon v. Albion Vein Slate Co., 250 U. S. 76, 81 (1919) (same). A juror may testify concerning any mental bias in matters unrelated to the specific issues that the juror was called upon to decide and whether extraneous prejudicial information was improperly brought to the juror’s attention. See Fed. Rule Evid. 606(b); Smith v. Phillips, supra, at 217, and n. 7, 218-219, and n. 8. But a juror generally cannot testify about the mental process by which the verdict was arrived. See Mattox v. United States, 146 U. S. 140 (1892). Thus, the California Court of Appeal refused to consider certain testimony in arriving at its decision that respondent had not suffered prejudice “beyond a reasonable doubt.” App. C.to Pet. for Cert. 33. The District Court improperly refused to defer to the California Court of Appeal’s sensitive review of this evidence. See 543 F. Supp. 757, 773-774 (ND Cal. 1982). Although Justice MARSHALL’S dissent purportedly agrees that the District Court was obliged to defer to the California Court of Appeal’s finding that the jury’s deliberations were not biased if that finding had “even ‘fair support’ in the record,” post, at 143, its critique of the circumstances underlying that finding proves otherwise. The dissent concedes, albeit grudgingly, that each circumstance the California Court of Appeal relied on in concluding “beyond a reasonable doubt” that the jury’s impartiality was not impaired was probative. See post, at 143-148. But the dissent, like the District Court below, argues that each circumstance is defective either because it depends on the juror’s own statements concerning her impartiality or because “the potential for impairment of the jury’s impartiality [in each] was considerable.” See post, at 148. Thus, the dissent, like the District Court, bases its conclusion not on a “lack of even fair support in the record” but on its own evaluation of the credibility of the witnesses, see, e. g., post, at 145, n. 29, and a concern about the potential for prejudice in the underlying circumstances. Such an approach plainly fails to adhere to the commands of the applicable statute. Title 28 U. S. C. § 2254(d) provides that the state courts’ determinations about witness credibility and inferences to be drawn from the testimony were binding on the District Court and are binding on us. See Marshall v. Lonberger, 459 U. S. 422, 434 (1983). Title 28 U. S. C. § 2254(d) requires that a federal habeas court more than simply disagree with the state court before rejecting its factual determinations. It must conclude that the findings “lac[k] even ‘fair support’ in the record.” 459 U. S., at 432. That statutory test is satisfied by the existence of probative evidence underlying the California Court of Appeal’s conclusion that the jury’s impartiality was unimpaired “beyond a reasonable doubt.” Ibid. Thus, our holding necessarily follows from the state courts’ findings of fact and from the presumption of correctness accorded to those findings. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Brennan delivered the opinion of the Court. The question presented is whether a city may, as part of a comprehensive program to preserve historic landmarks and historic districts, place restrictions on the development of individual historic landmarks — in addition to those imposed by applicable zoning ordinances — without effecting a “taking” requiring the payment of “just compensation.” Specifically, we must decide whether the application of New York City’s Landmarks Preservation Law to the parcel of land occupied by Grand Central Terminal has “taken” its owners’ property in violation of the Fifth and Fourteenth Amendments. I A Over the past 50 years, all 50 States and over 500 municipalities have enacted laws to encourage or require the preservation of buildings and areas with historic or aesthetic importance. These nationwide legislative efforts have been precipitated by two concerns. The first is recognition that, in recent years, large numbers of historic structures, landmarks, and areas have been destroyed without adequate consideration of éither the values represented therein or the possibility of preserving the destroyed properties for use in economically productive ways. The second is a widely shared belief that structures with special historic, cultural, or architectural significance enhance the quality of life for all. Not only do these buildings and their workmanship represent the lessons of the past and embody precious features of our heritage, they serve as examples of quality for today. “ [Historic conservation is but one aspect of the much larger problem, basically an environmental one, of enhancing — or perhaps developing for the first time — the quality of life for people/' New York City, responding to similar concerns and acting pursuant to a New York State enabling Act, adopted its Landmarks Preservation Law in 1965. See N. Y. C. Admin. Code, ch. 8-A, § 205-1.0 et seq. (1976). The city acted from the conviction that “the standing of [New York City] as a world-wide tourist center and world capital of business, culture and government” would be threatened if legislation were not enacted to protect historic landmarks and neighborhoods from precipitate decisions to destroy or fundamentally alter their character. § 205-1.0 (a). The city believed that comprehensive measures to safeguard desirable features of the existing urban fabric would benefit its citizens in a variety of ways: e. g., fostering “civic pride in the beauty and noble accomplishments of the past”; protecting and enhancing “the city’s attractions to tourists and visitors”; “support[ing] and stimul[ating] business and industry”; “strengthen[ing] the economy of the city”; and promoting “the use of historic districts, landmarks, interior landmarks and scenic landmarks for the education, pleasure and welfare of the people of the city.” § 205-1.0 (b). The New York City law is typical of many urban landmark laws in that its primary method of achieving its goals is not by acquisitions of historic properties, but rather by involving public entities in land-use decisions affecting these properties and providing services, standards, controls, and incentives that will encourage preservation by private owners and users. While the law does place special restrictions on landmark properties as a necessary feature to the attainment of its larger objectives, the major theme of the law is to ensure the owners of any such properties both a “reasonable return” on their investments and maximum latitude to use their parcels for purposes not inconsistent with the preservation goals. The operation of the law can be briefly summarized. The primary responsibility for administering the law is vested in the Landmarks Preservation Commission (Commission), a broad based, 11-member agency assisted by a technical staff. The Commission first performs the function, critical to any landmark preservation effort, of identifying properties and areas that have “a special character or special historical or aesthetic interest or value as part of the development, heritage or cultural characteristics of the city, state or nation.” § 207-1.0 (n); see § 207-1.0 (h). If the Commission determines, after giving all interested parties an opportunity to be heard, that a building or area satisfies the ordinance’s criteria, it will designate a building to be a “landmark,” § 207-1.0 (n), situated on a particular “landmark site,” § 207-1.0 (o), or will designate an area to be a “historic district/’ §207-1.0 (h). After the Commission makes a designation, New York City’s Board of Estimate, after considering the relationship of the designated property “to the master plan, the zoning resolution, projected public improvements and any plans for the renewal of the area involved,” § 207-2.0 (g)(1), may modify or disapprove the designation, and the owner may seek judicial review of the final designation decision. Thus far, 31 historic districts and over 400 individual landmarks have been finally designated, and the process is a continuing one. Final designation as a landmark results in restrictions upon the property owner’s options concerning use of the landmark site. First, the law imposes a duty upon the owner to keep the exterior features of the building “in good repair” to assure that the law’s objectives not be defeated by the landmark’s falling into a state of irremediable disrepair. See § 207-10.0 (a). Second, the Commission must approve in advance any proposal to alter the exterior architectural features of the landmark or to construct any exterior improvement on the landmark site, thus ensuring that decisions concerning construction on the landmark site are made with due consideration of both the public interest in the maintenance of the structure and the landowner’s interest in use of the property. See §§ 207-4.0 to 207-9.0. In the event an owner wishes to alter a landmark site, three separate procedures are available through which administrative approval may be obtained. First, the owner may apply to the Commission for a “certificate of no effect on protected architectural features”: that is, for an order approving the improvement or alteration on the ground that it will not change or affect any architectural feature of the landmark and will be in harmony therewith. See § 207-5.0. Denial of the certificate is subject to judicial review. Second, the owner may apply to the Commission for a certificate of “appropriateness.” See § 207-6.0. Such certificates will be granted if the Commission concludes — focusing upon aesthetic, historical, and architectural values — that the proposed construction on the landmark site would not unduly hinder the protection, enhancement, perpetuation, and use of the landmark. Again, denial of the certificate is subject to judicial review.. Moreover, the owner who is denied either a certificate of no exterior effect or a certificate of appropriateness may submit an alternative or modified plan for approval. The final procedure — seeking a certificate of appropriateness on the ground of “insufficient return,” see § 207-8.0 — -provides special mechanisms, which vary depending on whether or not the landmark enjoys a tax exemption, to ensure that designation does not cause economic hardship. Although the designation of a landmark and landmark site restricts the owner’s control oyer the parcel, designation also enhances the economic position of the landmark owner in one significant respect. Under New York City’s zoning laws, owners of real property who have not developed their property to the full extent permitted by the applicable zoning laws are allowed to transfer development rights to contiguous parcels on the same city block. See New York City, Zoning Resolution Art. I, ch. 2, § 12-10 (1978) (definition of “zoning lot”). A 1968 ordinance gave the owners of landmark sites additional opportunities to transfer development rights to other parcels. Subject to a restriction that the floor area of the transferee lot may not be increased by more than 20% above its authorized level, the ordinance permitted transfers from a landmark parcel to property across the street or across a street intersection. In 1969, the law governing the conditions under which transfers from landmark parcels could occur was liberalized, see New York City Zoning Resolutions 74-79 to 74-793, apparently to ensure that the Landmarks Law would not unduly restrict the development options of the owners of Grand Central Terminal. See Marcus, Air Rights Transfers in New York City, 36 Law & Contemp. Prob. 372, 375 (1971). The class of recipient lots was expanded to include lots “across a street and opposite to another lot or lots which except for the intervention of streets or street intersections f[or]m a series extending to the lot occupied by the landmark building [, provided that] all lots [are] in the same ownership.” New York City Zoning Resolution 74-79 (emphasis deleted). In addition, the 1969 amendment permits, in highly commercialized areas like midtown Manhattan, the transfer of all unused development rights to a single parcel. Ibid. B This case involves the application of New York City’s Landmarks Preservation Law to Grand Central Terminal (Terminal). The Terminal, which is owned by the Penn Central Transportation Co. and its affiliates (Penn Central), is one of New York City’s most famous buildings. Opened in 1913, it is regarded not only as providing an ingenious engineering solution to the problems presented by urban railroad stations, but also as a magnificent example of the French beaux-arts style. The Terminal is located in midtown Manhattan. Its south facade faces 42d Street and that street’s intersection with Park Avenue. At street level, the Terminal is bounded on the west by Vanderbilt Avenue, on the east by the Commodore Hotel, and on the north by the Pan-American Building. Although a 20-story office tower, to have been located above the Terminal, was part of the original design, the planned tower was never constructed. The Terminal itself is an eight-story structure which Penn Central uses as a railroad station and in which it rents space not needed for railroad purposes to a variety of commercial interests. The Terminal is one of a number of properties owned by appellant Penn Central in this area of midtown Manhattan. The others include the Barclay, Biltmore, Commodore, Roosevelt, and Waldorf-Astoria Hotels, the Pan-American Building and other office buildings along Park Avenue, and the Yale Club. At least eight of these are eligible to be recipients of development rights afforded the Terminal by virtue of landmark designation. On August 2, 1967, following a public hearing, the Commission designated the Terminal a “landmark” and designated the “city tax block” it occupies a “landmark site.” The Board of Estimate confirmed this action on September 21, 1967. Although appellant Penn Central had opposed the designation before the Commission, it did not seek judicial review of the final designation decision. On January 22, 1968, appellant Penn Central, to increase its income, entered into a renewable 50-year lease and sublease agreement with appellant UGP Properties, Inc. (UGP), a wholly owned subsidiary of Union General Properties, Ltd., a United Kingdom corporation. Under the terms of the agreement, UGP was to construct a multistory office building above the Terminal. UGP promised to pay Penn Central $1 million annually during construction and at least $3 million annually thereafter. The rentals would be offset in part by a loss of some $700,000 to $1 million in net rentals presently received from concessionaires displaced by the new building. Appellants UGP and Penn Central then applied to the Commission for permission to construct an office building atop the Terminal. Two separate plans, both designed by architect Marcel Breuer and both apparently satisfying the terms of the applicable zoning ordinance, were submitted to the Commission for approval. The first, Breuer I, provided for the construction of a 55-story office building, to be cantilevered above the existing facade and to rest on the roof of the Terminal. The second, Breuer II Revised, called for tearing down a portion of the Terminal that included the 42d Street facade, stripping off some of the remaining features of the Terminal’s facade, and constructing a 53-story office building. The Commission denied a certificate of no exterior effect on September 20, 1968. Appellants then applied for a certificate of “appropriateness” as to both proposals. After four days of hearings at which over 80 witnesses testified, the Commission denied this application as to both proposals. The Commission’s reasons for rejecting certificates respecting Breuer II Revised are summarized in the following statement: “To protect a Landmark, one does not tear it down. To perpetuate its architectural features, one does not strip them off.” Record 2255. Breuer I, which would have preserved the existing vertical facades of the present structure, received more sympathetic consideration. The Commission first focused on the effect that the proposed tower would have on one desirable feature created by the present structure and its surroundings: the dramatic view of the Terminal from Park Avenue South. Although appellants had contended that the Pan-American Building had already destroyed the silhouette of the south facade and that one additional tower could do no further damage and might even provide a better background for the facade, the Commission disagreed, stating that it found the majestic approach from the south to be still unique in the city and that a 55-story tower atop the Termiml would be far more detrimental to its south facade than the Pan-American Building 375 feet away. Moreover, the Commission found that from closer vantage points the Pan-American Building and the other towers were largely cut off from view, which would not be the case of the mass on top of the Terminal planned under Breuer I. In conclusion, the Commission stated: “[We have] no fixed rule against making additions to designated buildings — it all depends on how they are done.... But to balance a 55-story office tower above a flamboyant Beaux-Arts facade seems nothing more than an aesthetic joke. Quite simply, the tower would overwhelm the Terminal by its sheer mass. The 'addition’ would be four times as high as the existing structure and would reduce the Landmark itself to the status of a curiosity. “Landmarks cannot be divorced from their settings— particularly when the setting is a dramatic and integral part of the original concept. The Terminal, in its setting, is a great example of urban design. Such examples are not so plentiful in New York City that we can afford to lose any of the few we have. And we must preserve them in a meaningful way — with alterations and additions of such character, scale, materials and mass as will protect, enhance and perpetuate the original design rather than overwhelm it.” Id., at 2251. Appellants did not seek judicial review of the denial of either certificate. Because the Terminal site enjoyed a tax exemption, remained suitable for its present and future uses, and was not the subject of a contract of sale, there were no further administrative remedies available to appellants as to the Breuer' I. and Breuer II Revised plans. See n. 13, supra. Further, appellants did not avail themselves of the opportunity to develop and submit other plans for the Commission’s consideration and approval. Instead, appellants filed suit in New York Supreme Court, Trial Term, claiming, inter alia, that the application of the Landmarks Preservation Law had “taken” their property without just compensation in violation of the Fifth and Fourteenth Amendments and arbitrarily deprived them of their property without due process of law in violation of the Fourteenth Amendment. Appellants sought a declaratory judgment, injunctive relief barring the city from using the Landmarks Law to impede the construction of any structure that might otherwise lawfully be constructed on the Terminal site, and damages for the “temporary taking” that occurred between August 2, 1967, the designation date, and the date when the restrictions arising from the Landmarks Law would be lifted. The trial court granted the injunctive and declaratory relief, but severed the question of damages fqr a “temporary taking.” Appellees appealed, and the New York Supreme Court, Appellate Division, reversed. 50 App. Div. 2d 265, 377 N. Y. S. 2d 20 (1975). The Appellate Division held that the restrictions on the development of the Terminal site were necessary to promote the legitimate public purpose of protecting landmarks and therefore that appellants could sustain their, constitutional claims only by proof that the regulation deprived them of all reasonable beneficial use of the property. The Appellate Division held that the evidence appellants introduced at trial — “Statements of Revenues and Costs,” purporting to show a net operating loss for the years 1969 and 1971, which were prepared for the instant litigation — had not satisfied their burden. First, the court rejected the claim that these statements showed that the Terminal was operating at a loss, for in the court’s view, appellants had improperly attributed some railroad operating expenses and taxes to their real estate operations, and compounded that error by failing to impute any rental value to the vast space in the Terminal devoted to railroad purposes. Further, the Appellate Division concluded that appellants had failed to establish either that they were unable to increase the Terminal’s commercial income by transforming vacant or underutilized space to revenue-producing use, or that the unused development rights over the Terminal could not have been profitably transferred to one or more nearby sites. The Appellate Division concluded that all appellants had succeeded in showing was that they had been deprived of the property’s most profitable use, and that this showing did not establish that appellants had been unconstitutionally deprived of their property. The New York Court of Appeals affirmed. 42 N. Y. 2d 324, 366 N. E. 2d 1271 (1977). That court summarily rejected any claim that the Landmarks Law had “taken” property without “just compensation,” id., at 329, 366 N. E. 2d, at 1274, indicating that there could be no “talcing” since the law had not transferred control of the property to the city, but only restricted appellants’ exploitation of it. In that circumstance, the Court of Appeals held that appellants’ attack on the- law could prevail only if the law deprived appellants of their property in violation of the Due Process Clause of the Fourteenth Amendment. Whether or not there was a denial of substantive due process turned on whether the restrictions deprived Penn Central of a “reasonable return” on the “privately created and privately managed ingredient” of the Terminal. Id., at 328, 366 N. E. 2d, at 1273. The Court of Appeals concluded that the Landmarks Law had not effected a denial of due process because: (1) the landmark regulation permitted the same use as had been made of the Terminal for more than half a century; (2) the appellants had failed to show that they could not earn a reasonable return on their investment in the Terminal itself; (3) even if the Terminal proper could never operate at a reasonable profit, some of the income from Penn Central’s extensive real estate holdings in the area, which include hotels and office buildings, must realistically be imputed to the Terminal; and (4) the development rights above the Terminal, which had been made transferable to numerous sites in the vicinity of the Terminal, one or two of which were suitable for the construction of office buildings, were valuable to appellants and provided “significant, perhaps 'fair/ compensation for the loss of rights above the terminal itself.” Id., at 333-336, 366 N. E. 2d, at 1276-1278. Observing that its affirmance was “[o]n the present record,” and that its analysis had not been fully developed by counsel at any level of the New York judicial system, the Court of Appeals directed that counsel “should be entitled to present... any additional submissions which, in the light of [the court’s] opinion, may usefully develop further the factors discussed.” Id., at 337, 366 N. E. 2d, at 1279. Appellants chose not to avail themselves of this opportunity and filed a notice of appeal in this Court. We noted probable jurisdiction. 434 U.S. 983 (1977). We affirm. II The issues presented by appellants are (1) whether the restrictions imposed by New York City’s law upon appellants’ exploitation of the Terminal site effect a “taking” of appellants’ property for a public use within the meaning of the Fifth Amendment, which of course is made applicable to the States through the Fourteenth Amendment, see Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 239 (1897), and, (2), if so, whether the transferable development rights afforded appellants constitute “just compensation” within the meaning of the Fifth Amendment. We need only address the question whether a “taking” has occurred. A Before considering appellants’ specific contentions, it will be useful to review the factors that have shaped the jurispru.dence of the Fifth Amendment injunction “nor shall private property be taken for public use, without just compensation.” The question of what constitutes a “taking” for purposes of the Fifth Amendment has proved to be a problem of considerable difficulty. While this Court has recognized that the “Fifth Amendment’s guarantee... [is] designed to bar' Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole,” Armstrong v. United States, 364 U. S. 40, 49 (1960), this Court, quite simply, has been unable to develop any “set formula” for determining when “justice and fairness” require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons. See Gold-blatt v. Hempstead, 369 U. S. 590, 594 (1962). Indeed, we have frequently observed that whether a particular restriction will be rendered invalid by the government’s failure to pay for any losses proximately caused by it depends largely “upon the particular circumstances [in that] case.” United States v. Central Eureka Mining Co., 357 U. S. 155, 168 (1958); see United States v. Caltex, Inc., 344 U. S. 149, 156 (1952). In engaging in these essentially ad hoc, factual inquiries,' the Court’s decisions have identified several factors that have particular significance.. The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. See Cold-blatt v. Hempstead, supra, at 594. So, too, is the character of the governmental action. A “taking” may more readily be found when the interference with property can be characterized as a physical invasion by government, see, e. g., United States v. Causby, 328 U. S. 256 (1946), than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good. “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law,” Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 413 (1922), and this Court has accordingly recognized, in a wide variety of contexts, that government may execute laws or programs that adversely affect recognized economic values. Exercises of the taxing power are one obvious example. A second are the decisions in which this Court has dismissed “taking” challenges on the ground that, while the challenged government action caused economic harm, it did not interfere with interests that were sufficiently bound up with the reasonable expectations of the claimant to constitute "property” for Fifth Amendment purposes. See, e. g., United States v. Willow River Power Co., 324 U. S. 499 (1945) (interest in high-water level of river for runoff for tailwaters to maintain power head is not property) ; United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53 (1913) (no property interest can exist in navigable waters); see also Demorest v. City Bank Co., 321 U. S. 36 (1944); Muhlker v. Harlem R. Co., 197 U. S. 544 (1905); Sax, Takings and the Police Power, 74 Yale L. J. 36, 61-62 (1964). More importantly for the present case, in instances in which a state tribunal reasonably concluded that “the health, safety, morals, or general welfare” would be promoted by prohibiting particular contemplated uses of land, this Court has upheld land-use regulations that destroyed or adversely affected recognized real property interests. See Nectow v. Cambridge, 277 U. S. 183, 188 (1928). Zoning laws are, of course, the classic example, see Euclid v. Ambler Realty Co., 272 U. S. 365 (1926) (prohibition of industrial use); Gorieb v. Fox, 274 U. S. 603, 608 (1927) (requirement that portions of parcels be left unbuilt); Welch v. Swasey, 214 U. S. 91 (1909) (height restriction), which have been viewed as permissible governmental action even when prohibiting the most beneficial use of the property. See Goldblatt v. Hempstead, supra, at 592-593, and cases cited; see also Eastlake v. Forest City Enterprises, Inc., 426 U. S. 668, 674 n. 8 (1976). Zoning laws generally do not affect existing uses of real property, but “taking” challenges have also been held to be without merit in a wide variety of situations when the challenged governmental actions prohibited a beneficial use to which individual parcels had previously been devoted and thus caused substantial individualized harm. Miller v. Schoene, 276 U. S. 272 (1928), is illustrative. In that case, a state entomologist, acting pursuant to a state statute, ordered the claimants to cut down a large number of ornamental red cedar trees because they produced cedar rust fatal to apple trees cultivated nearby. Although the statute provided for recovery of any expense incurred in removing the cedars, and permitted claimants to use the felled trees, it did not provide compensation for the value of the standing trees or for the resulting decrease in market value of the properties as a whole. A unanimous Court held that this latter omission did not render the statute invalid. The Court held that the State might properly make “a choice between the preservation of one class of property and that of the other” and since the apple industry was important in the State involved, concluded that the State had not exceeded “its constitutional powers by deciding upon the destruction of one class of property [without compensation] in order to save another which, in the judgment of the legislature, is of greater value to the public.” Id., at 279. Again, Hadacheck v. Sebastian, 239 U. S. 394 (1915), upheld a law prohibiting the claimant from continuing his otherwise lawful business of operating a brickyard in a particular physical community on the ground that the legislature had reasonably concluded that the presence of the brickyard was inconsistent with neighboring uses. See also United States v. Central Eureka Mining Co., supra (Government order closing gold mines so that skilled miners would be available for other mining work held not a taking): Atchison, T. & S. F. R. Co. v. Public Utilities Comm’n, 346 U. S. 346 (1953) (railroad may be required to share cost of constructing railroad grade improvement) ; Walls v. Midland Carbon Co., 254 U. S. 300 (1920) (law prohibiting manufacture of carbon black upheld); Reinman v. Little Rock, 237 U. S. 171 (1915) (law prohibiting livery stable upheld); Mugler v. Kansas, 123 U. S. 623 (1887) (law prohibiting liquor business upheld). Goldblatt v. Hempstead, supra, is a recent example. There, a 1958 city safety ordinance banned any excavations below the water table and effectively prohibited the claimant from continuing a sand and gravel mining business that had been operated on the particular parcel since 1927. The Court upheld the ordinance against a “taking” challenge, although the ordinance prohibited the present and presumably most beneficial use of the property and had, like the regulations in Miller and Hadacheck, severely affected a particular owner. The Court assumed that the ordinance did not prevent the owner’s reasonable use of the property since the owner made no showing of an adverse effect on the value of the land. Because the restriction served a substantial public purpose, the Court thus held no taking had occurred. It is, of course, implicit in Goldblatt that a use restriction on real property may constitute a “taking” if not reasonably necessary to the effectuation, of a substantial public purpose, see Nectow v. Cambridge, supra; cf. Moore v. East Cleveland, 431 U. S. 494, 513-514 (1977) (Stevens, J., concurring), or perhaps if it has an unduly harsh impact upon the owner’s use of the property. Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), is the leading case for the proposition that a state statute that substantially furthers important public policies may so frustrate distinct investment-backed expectations as to amount to a “taking.” There the claimant had sold the surface rights to particular parcels of property, but expressly reserved the right to remove the coal thereunder. A Pennsylvania statute, enacted after the transactions, forbade any mining of coal that caused the subsidence of any house, unless the house was the property of the owner of the underlying coal and was more than 150 feet from the improved property of another. Because the statute made it commercially impracticable to mine the coal, id., at 414, and thus had nearly the same effect as the complete destruction of rights claimant had reserved from the owners of the surface land, see id., at 414-415, the Court held that the statute was invalid as effecting a “taking” without just compensation. See also Armstrong v. United States, 364 U. S. 40 (1960) (Government’s complete destruction of a materialman’s lien in certain property held a “taking”); Hudson Water Co. v. McCarter, 209 U. S. 349, 355 (1908) (if height restriction makes property wholly useless “the rights of property... prevail over the other public interest” and compensation is required). See generally Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165, 1229-1234 (1967). Finally, government actions that may be characterized as acquisitions of resources to permit or facilitate uniquely public functions have often been held to constitute “takings.” United States v. Causby, 328 U. S. 256 (1946), is illustrative. In holding that direct overflights above the claimant’s land, that destroyed the present use of the land as a chicken farm, constituted a “taking,” Causby emphasized that Government had not “merely destroyed property [but was] using a part of it for the flight of its planes.” Id., at 262-263, n. 7. See also Griggs v. Allegheny County, 369 U. S. 84 (1962) (overflights held a taking); Portsmouth Co. v. United States, 260 U. S. 327 (1922) (United States military installations’ repeated firing of guns over claimant’s land is a taking); United States v. Cress, 243 U. S. 316 (1917) (repeated floodings of land caused by water project is a taking); but see YMCA v. United States, 395 U. S. 85 (1969) (damage caused to building when federal officers who were seeking to protect building were attacked by rioters held not a taking). See generally Michelman, supra, at 1226-1229; Sax, Takings and the Police Power, 74 Yale L. J. 36 (1964). B In contending that the New York City law has “taken” their property in violation of the Fifth and Fourteenth Amendments, appellants make a series of arguments, which, while tailored to the facts of this case, essentially urge that any substantial restriction imposed pursuant to a landmark law must be accompanied by just compensation if it is to be constitutional. Before considering these, we emphasize what is not in dispute. Because this Court has recognized, in a number of settings, that States and cities may enact land-use restrictions or controls to enhance the quality of life by preserving the character and desirable aesthetic features of a city, see New Orleans v. Dukes, 427 U. S. 297 (1976); Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976) ; Village of Belle Terre v. Boraas, 416 U. S. 1, 9-10 (1974); Berman v. Parker, 348 U. S. 26, 33 (1954); Welch v. Swasey, 214 U. S., at 108, appellants do not contest that New York City’s objective of preserving structures and areas with special historic, architectural, or cultural significance is an entirely permissible governmental goal. They also do not dispute that the restrictions imposed on its parcel are appropriate means of securing the purposes of the New York City law. Finally, appellants do not challenge any of the specific factual premises of the decision below. They accept for present purposes both that the parcel of land occupied by Grand Central Terminal must, in its present state, be regarded as capable of earning a reasonable return, and that the transferable development rights afforded appellants by virtue of the Terminal’s designation as a landmark are valuable, even if not as valuable as the rights to construct above the Terminal. In appellants’ view none of these factors derogate from their claim that New York City’s law has effected a “taking.” They first observe that the airspace above the Terminal is a valuable property interest, citing United States v. Causby, supra. They urge that the Landmarks Law has deprived them of any gainful use of their “air rights” above the Terminal and that, irrespective of the value of the remainder of their parcel, the city has “taken” their right to this super-jacent airspace, thus entitling them to “just compensation” measured by the fair market value of these air rights. Apart from our own disagreement with appellants’ characterization of the effect of the New York City law, see infra, at 134-135, the submission that appellants may establish a “taking” simply by showing that they have been denied the ability to exploit a property interest that they heretofore had believed was available for development is quite simply untenable. Were this the rule, this Court would have erred not only in upholding laws restricting the development of air rights, see Welch v. Swasey, supra, but also in approving those prohibiting both the subjacent, see Goldblatt v. Hempstead, 369 U. S. 590 (1962), and the lateral, see Gorieb v. Fox, 274 U. S. 603 (1927), development of particular parcels. “Taking” jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole — here, the city tax block designated as the “landmark site.” Secondly, appellants, focusing on the character and impact of the New York City law, argue that it effects a “taking” because its operation has significantly diminished the value of the Terminal site. Appellants concede that the decisions sustaining other land-use regulations, which, like the New York City law, are reasonably related to the promotion of the Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

D

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice ALITO delivered the opinion of the Court. This case concerns the requirements applicable to a particular method of serving civil process on a foreign state. Under the Foreign Sovereign Immunities Act of 1976 (FSIA), a foreign state may be served by means of a mailing that is "addressed and dispatched ... to the head of the ministry of foreign affairs of the foreign state concerned." 28 U.S.C. § 1608(a)(3). The question now before us is whether this provision is satisfied when a service packet that names the foreign minister is mailed to the foreign state's embassy in the United States. We hold that it is not. Most naturally read, § 1608(a)(3) requires that a mailing be sent directly to the foreign minister's office in the minister's home country. I A Under the FSIA, a foreign state is immune from the jurisdiction of courts in this country unless one of several enumerated exceptions to immunity applies. 28 U.S.C. §§ 1604, 1605 - 1607. If a suit falls within one of these exceptions, the FSIA provides subject-matter jurisdiction in federal district courts. § 1330(a). The FSIA also provides for personal jurisdiction "where service has been made under section 1608." § 1330(b). Section 1608(a) governs service of process on "a foreign state or political subdivision of a foreign state." § 1608(a) ; Fed. Rule Civ. Proc. 4(j)(1). In particular, it sets out in hierarchical order the following four methods by which "[s]ervice ... shall be made." 28 U.S.C. § 1608(a). The first method is by delivery of a copy of the summons and complaint "in accordance with any special arrangement for service between the plaintiff and the foreign state or political subdivision." § 1608(a)(1). "[I]f no special arrangement exists," service may be made by the second method, namely, delivery of a copy of the summons and complaint "in accordance with an applicable international convention on service of judicial documents." § 1608(a)(2). If service is not possible under either of the first two methods, the third method, which is the one at issue in this case, may be used. This method calls for "sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned ." § 1608(a)(3) (emphasis added). Finally, if service cannot be made within 30 days under § 1608(a)(3), service may be effected by sending the service packet "by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the Secretary of State in Washington, District of Columbia," for transmittal "through diplomatic channels to the foreign state." § 1608(a)(4). Once served, a foreign state or political subdivision has 60 days to file a responsive pleading. § 1608(d). If the foreign state or political subdivision does not do this, it runs the risk of incurring a default judgment. See § 1608(e). A copy of any such default judgment must be "sent to the foreign state or political subdivision in the [same] manner prescribed for service." Ibid. B On October 12, 2000, the USS Cole , a United States Navy guided-missile destroyer, entered the harbor of Aden, Yemen, for what was intended to be a brief refueling stop. While refueling was underway, a small boat drew along the side of the Cole , and the occupants of the boat detonated explosives that tore a hole in the side of the Cole . Seventeen crewmembers were killed, and dozens more were injured. Al Qaeda later claimed responsibility for the attack. Respondents in this case are victims of the USS Cole bombing and their family members. In 2010, respondents sued petitioner, the Republic of Sudan, alleging that Sudan had provided material support to al Qaeda for the bombing. See 28 U.S.C. §§ 1605A(a)(1), (c). Because respondents brought suit under the FSIA, they were required to serve Sudan with process under § 1608(a). It is undisputed that service could not be made under § 1608(a)(1) or § 1608(a)(2), and respondents therefore turned to § 1608(a)(3). At respondents' request, the clerk of the court sent the service packet, return receipt requested, to: "Republic of Sudan, Deng Alor Koul, Minister of Foreign Affairs, Embassy of the Republic of Sudan, 2210 Massachusetts Avenue NW, Washington, DC 20008." App. 172. The clerk certified that the service packet had been sent and, a few days later, certified that a signed receipt had been returned. After Sudan failed to appear in the litigation, the District Court for the District of Columbia held an evidentiary hearing and entered a $314 million default judgment against Sudan. Again at respondents' request, the clerk of the court mailed a copy of the default judgment in the same manner that the clerk had previously used. See § 1608(e). With their default judgment in hand, respondents turned to the District Court for the Southern District of New York, where they sought to register the judgment and satisfy it through orders requiring several banks to turn over Sudanese assets. See 28 U.S.C. § 1963 (providing for registration of judgments for enforcement in other districts). Pursuant to § 1610(c), the District Court entered an order confirming that a sufficient period of time had elapsed following the entry and notice of the default judgment, and the court then issued three turnover orders. At this point, Sudan made an appearance for the purpose of contesting jurisdiction. It filed a notice of appeal from each of the three turnover orders and contended on appeal that the default judgment was invalid for lack of personal jurisdiction. In particular, Sudan maintained that § 1608(a)(3) required that the service packet be sent to its foreign minister at his principal office in Khartoum, the capital of Sudan, and not to the Sudanese Embassy in the United States. The Court of Appeals for the Second Circuit rejected this argument and affirmed the orders of the District Court. 802 F.3d 399 (2015). The Second Circuit reasoned that, although § 1608(a)(3) requires that a service packet be mailed "to the head of the ministry of foreign affairs of the foreign state concerned," the statute "is silent as to a specific location where the mailing is to be addressed." Id., at 404. In light of this, the court concluded that "the method chosen by plaintiffs-a mailing addressed to the minister of foreign affairs at the embassy-was consistent with the language of the statute and could reasonably be expected to result in delivery to the intended person." Ibid. Sudan filed a petition for rehearing, and the United States filed an amicus curiae brief in support of Sudan's petition. The panel ordered supplemental briefing and heard additional oral argument, but it once again affirmed, reiterating its view that § 1608(a)(3)"does not specify that the mailing be sent to the head of the ministry of foreign affairs in the foreign country." 838 F.3d 86, 91 (CA2 2016). The court thereafter denied Sudan's petition for rehearing en banc. Subsequent to the Second Circuit's decision, the Court of Appeals for the Fourth Circuit held in a similar case that § 1608(a)(3)"does not authorize delivery of service to a foreign state's embassy even if it correctly identifies the intended recipient as the head of the ministry of foreign affairs." Kumar v. Republic of Sudan , 880 F.3d 144, 158 (2018), cert. pending, No. 17-1269. We granted certiorari to resolve this conflict. 585 U.S. ----, 138 S.Ct. 2671, 201 L.Ed.2d 1070 (2018) II A The question before us concerns the meaning of § 1608(a)(3), and in interpreting that provision, "[w]e begin 'where all such inquiries must begin: with the language of the statute itself.' " Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S , 566 U.S. 399, 412, 132 S.Ct. 1670, 182 L.Ed.2d 678 (2012) (quoting United States v. Ron Pair Enterprises, Inc. , 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) ). As noted, § 1608(a)(3) requires that service be sent "by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned." The most natural reading of this language is that service must be mailed directly to the foreign minister's office in the foreign state. Although this is not, we grant, the only plausible reading of the statutory text, it is the most natural one. See, e.g., United States v. Hohri , 482 U.S. 64, 69-71, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987) (choosing the "more natural" reading of a statute); ICC v. Texas , 479 U.S. 450, 456-457, 107 S.Ct. 787, 93 L.Ed.2d 809 (1987) (same); see also Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc. , 554 U.S. 33, 41, 128 S.Ct. 2326, 171 L.Ed.2d 203 (2008) (similar). A key term in § 1608(a)(3) is the past participle "addressed." A letter or package is "addressed" to an intended recipient when his or her name and "address" is placed on the outside of the item to be sent. And the noun "address," in the sense relevant here, means "the designation of a place (as a residence or place of business) where a person or organization may be found or communicated with." Webster's Third New International Dictionary 25 (1971) (Webster's Third); see also Webster's Second New International Dictionary 30 (1957) ("the name or description of a place of residence, business, etc., where a person may be found or communicated with"); Random House Dictionary of the English Language 17 (1966) ("the place or the name of the place where a person, organization, or the like is located or may be reached"); American Heritage Dictionary 15 (1969) ("[t]he location at which a particular organization or person may be found or reached"); Oxford English Dictionary 106 (1933) (OED) ("the name of the place to which any one's letters are directed"). Since a foreign nation's embassy in the United States is neither the residence nor the usual place of business of that nation's foreign minister and is not a place where the minister can customarily be found, the most common understanding of the minister's "address" is inconsistent with the interpretation of § 1608(a)(3) adopted by the court below and advanced by respondents. We acknowledge that there are circumstances in which a mailing may be "addressed" to the intended recipient at a place other than the individual's residence or usual place of business. For example, if the person sending the mailing does not know the intended recipient's current home or business address, the sender might use the intended recipient's last known address in the hope that the mailing will be forwarded. Or a sender might send a mailing to a third party who is thought to be in a position to ensure that the mailing is ultimately received by the intended recipient. But in the great majority of cases, addressing a mailing to X means placing on the outside of the mailing both X's name and the address of X's residence or customary place of work. Section 1608(a)(3)'s use of the term "dispatched" points in the same direction. To "dispatch" a communication means "to send [it] off or away (as to a special destination) with promptness or speed often as a matter of official business." Webster's Third 653; see also OED 478 ("To send off post-haste or with expedition or promptitude (a messenger, message, etc., having an express destination)"). A person who wishes to "dispatch" a letter to X will generally send it directly to X at a place where X is customarily found. The sender will not "dispatch" the letter in a roundabout way, such as by directing it to a third party who, it is hoped, will then send it on to the intended recipient. A few examples illustrate this point. Suppose that a person is instructed to "address" a letter to the Attorney General of the United States and "dispatch" the letter (i.e. , to "send [it] off post-haste") to the Attorney General. The person giving these instructions would likely be disappointed and probably annoyed to learn that the letter had been sent to, let us say, the office of the United States Attorney for the District of Idaho. And this would be so even though a U.S. Attorney's office is part of the Department headed by the Attorney General and even though such an office would very probably forward the letter to the Attorney General's office in Washington. Similarly, a person who instructs a subordinate to dispatch a letter to the CEO of a big corporation that owns retail outlets throughout the country would probably be irritated to learn that the letter had been mailed to one of those stores instead of corporate headquarters. To "dispatch" a letter to an addressee connotes sending it directly. A similar understanding underlies the venerable "mailbox rule." As first-year law students learn in their course on contracts, there is a presumption that a mailed acceptance of an offer is deemed operative when "dispatched" if it is "properly addressed." Restatement (Second) of Contracts § 66, p. 161 (1979) (Restatement); Rosenthal v. Walker , 111 U.S. 185, 193, 4 S.Ct. 382, 28 L.Ed. 395 (1884). But no acceptance would be deemed properly addressed and dispatched if it lacked, and thus was not sent to, the offeror's address (or an address that the offeror held out as the place for receipt of an acceptance). See Restatement § 66, Comment b . It is also significant that service under § 1608(a)(3) requires a signed returned receipt, a standard method for ensuring delivery to the addressee. Cf. Black's Law Dictionary 1096 (10th ed. 2014) (defining "certified mail" as "[m]ail for which the sender requests proof of delivery in the form of a receipt signed by the addressee"). We assume that certified mail sent to a foreign minister will generally be signed for by a subordinate, but the person who signs for the minister's certified mail in the foreign ministry itself presumably has authority to receive mail on the minister's behalf and has been instructed on how that mail is to be handled. The same is much less likely to be true for an employee in the mailroom of an embassy. For all these reasons, we think that the most natural reading of § 1608(a)(3) is that the service packet must bear the foreign minister's name and customary address and that it be sent to the minister in a direct and expeditious way. And the minister's customary office is the place where he or she generally works, not a farflung outpost that the minister may at most occasionally visit. B Several related provisions in § 1608 support this reading. See Davis v. Michigan Dept. of Treasury , 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989) ("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"). 1 One such provision is § 1608(b)(3)(B). Section 1608(b) governs service on "an agency or instrumentality of a foreign state." And like § 1608(a)(3), § 1608(b)(3)(B) requires delivery of a service packet to the intended recipient "by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court." But § 1608(b)(3)(B), unlike § 1608(a)(3), contains prefatory language saying that service by this method is permissible "if reasonably calculated to give actual notice." Respondents read § 1608(a)(3) as embodying a similar requirement. See Brief for Respondents 34. At oral argument, respondents' counsel stressed this point, arguing that respondents' interpretation of § 1608(a)(3)"gives effect" to the "familiar" due process standard articulated in Mullane v. Central Hanover Bank & Trust Co. , 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), which is "the notion that [service] must be reasonably calculated to give notice." Tr. of Oral Arg. 37-38. This argument runs up against two well-settled principles of statutory interpretation. First, "Congress generally acts intentionally when it uses particular language in one section of a statute but omits it in another." Department of Homeland Security v . MacLean , 574 U.S. ----, ----, 135 S.Ct. 913, 919, 190 L.Ed.2d 771 (2015). Because Congress included the "reasonably calculated to give actual notice" language only in § 1608(b), and not in § 1608(a), we resist the suggestion to read that language into § 1608(a). Second, "we are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law." Mackey v. Lanier Collection Agency & Service, Inc. , 486 U.S. 825, 837, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988). Here, respondents encounter a superfluity problem when they argue that the "addressed and dispatched" clause in § 1608(a)(3) gives effect to the Mullane due process standard. They fail to account for the fact that § 1608(b)(3)(B) contains both the "addressed and dispatched" and "reasonably calculated to give actual notice" requirements. If respondents were correct that "addressed and dispatched" means "reasonably calculated to give notice," then the phrase "reasonably calculated to give actual notice" in § 1608(b)(3) would be superfluous. Thus, as the dissent agrees, § 1608(a)(3)"does not deem a foreign state properly served solely because the service method is reasonably calculated to provide actual notice." Post, at ----(opinion of THOMAS, J.). 2 Section 1608(b)(2) similarly supports our interpretation of § 1608(a)(3). Section 1608(b)(2) provides for delivery of a service packet to an officer or a managing or general agent of the agency or instrumentality of a foreign state or "to any other agent authorized by appointment or by law to receive service of process in the United States." This language is significant for three reasons. First, it expressly allows service on an agent. Second, it specifies the particular individuals who are permitted to be served as agents of the recipient. Third, it makes clear that service on the agent may occur in the United States if an agent here falls within the provision's terms. If Congress had contemplated anything similar under § 1608(a)(3), there is no apparent reason why it would not have included in that provision terms similar to those in § 1608(b)(2). Respondents would have us believe that Congress was content to have the courts read such terms into § 1608(a)(3). In view of § 1608(b)(2), this seems unlikely. See also post, at ---- ("Nor does the FSIA authorize service on a foreign state by utilizing an agent designated to receive process for the state"). 3 Section 1608(c) further buttresses our reading of § 1608(a)(3). Section 1608(c) sets out the rules for determining when service "shall be deemed to have been made." For the first three methods of service under § 1608(a), service is deemed to have occurred on the date indicated on "the certification, signed and returned postal receipt, or other proof of service applicable to the method of service employed." § 1608(c)(2). The sole exception is service under § 1608(a)(4), which requires the Secretary of State to transmit a service packet to the foreign state through diplomatic channels. Under this method, once the Secretary has transmitted the packet, the Secretary must send to the clerk of the court "a certified copy of the diplomatic note indicating when the papers were transmitted." § 1608(a)(4). And when service is effected in this way, service is regarded as having occurred on the transmittal date shown on the certified copy of the diplomatic note. § 1608(c)(1). Under all these methods, service is deemed to have occurred only when there is a strong basis for concluding that the service packet will very shortly thereafter come into the hands of a foreign official who will know what needs to be done. Under § 1608(a)(4), where service is transmitted by the Secretary of State through diplomatic channels, there is presumably good reason to believe that the service packet will quickly come to the attention of a high-level foreign official, and thus service is regarded as having been completed on the date of transmittal. And under §§ 1608(a)(1), (2), and (3), where service is deemed to have occurred on the date shown on a document signed by the person who received it from the carrier, Congress presumably thought that the individuals who signed for the service packet could be trusted to ensure that the service packet is handled properly and expeditiously. It is easy to see why Congress could take that view with respect to a person designated for the receipt of process in a "special arrangement for service between the plaintiff and the foreign state or political subdivision," § 1608(a)(1), and a person so designated under "an applicable international convention," § 1608(a)(2). But what about § 1608(a)(3), the provision now before us? Who is more comparable to those who sign for mail under §§ 1608(a)(1) and (2) ? A person who works in the office of the foreign minister in the minister's home country and is authorized to receive and process the minister's mail? Or a mailroom employee in a foreign embassy? We think the answer is obvious, and therefore interpreting § 1608(a)(3) to require that a service packet be sent to a foreign minister's own office better harmonizes the rules for determining when service is deemed to have been made. Respondents seek to soften the blow of an untimely delivery to the minister by noting that the foreign state can try to vacate a default judgment under Federal Rule of Civil Procedure 55(c). Brief for Respondents 27. But that is a poor substitute for sure and timely receipt of service, since a foreign state would have to show "good cause" to vacate the judgment under that Rule. Here, as with the previously mentioned provisions in § 1608, giving § 1608(a)(3) its ordinary meaning better harmonizes the various provisions in § 1608 and avoids the oddities that respondents' interpretation would create. C The ordinary meaning of the "addressed and dispatched" requirement in § 1608(a)(3) also has the virtue of avoiding potential tension with the Federal Rules of Civil Procedure and the Vienna Convention on Diplomatic Relations. 1 Take the Federal Rules of Civil Procedure first. At the time of the FSIA's enactment, Rule 4(i), entitled "Alternative provisions for service in a foreign-country," set out certain permissible methods of service on "part[ies] in a foreign country." Fed. Rule Civ. Proc. 4(i)(1) (1976). One such method was "by any form of mail, requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served ." Rule 4(i)(1)(D) (emphasis added). Rule 4(i)(2) further provided that "proof of service" pursuant to that method "shall include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the court." (Emphasis added.) The current version of Rule 4 is similar. See Rules 4(f)(2)(C)(ii), 4(l )(2)(B). The virtually identical methods of service outlined in Rule 4 and § 1608(a)(3) pose a problem for respondents' position: If mailing a service packet to a foreign state's embassy in the United States were sufficient for purposes of § 1608(a)(3), then it would appear to be easier to serve the foreign state than to serve a person in that foreign state. This is so because a receipt signed by an embassy employee would not necessarily satisfy Rule 4 since such a receipt would not bear the signature of the foreign minister and might not constitute evidence that is sufficient to show that the service packet had actually been delivered to the minister. It would be an odd state of affairs for a foreign state's inhabitants to enjoy more protections in federal courts than the foreign state itself, particularly given that the foreign state's immunity from suit is at stake. The natural reading of § 1608(a)(3) avoids that oddity. 2 Our interpretation of § 1608(a)(3) avoids concerns regarding the United States' obligations under the Vienna Convention on Diplomatic Relations. We have previously noted that the State Department "helped to draft the FSIA's language," and we therefore pay "special attention" to the Department's views on sovereign immunity. Bolivarian Republic of Venezuelav . Helmerich & Payne Int'l Drilling Co. , 581 U.S. ----, ----, 137 S.Ct. 1312, 1320, 197 L.Ed.2d 663 (2017). It is also "well settled that the Executive Branch's interpretation of a treaty 'is entitled to great weight.' " Abbott v. Abbott , 560 U.S. 1, 15, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010) (quoting Sumitomo Shoji America, Inc. v. Avagliano , 457 U.S. 176, 185, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982) ). Article 22(1) of the Vienna Convention provides: "The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission." Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3237, T.I.A.S. No. 7502. Since at least 1974, the State Department has taken the position that Article 22(1)'s principle of inviolability precludes serving a foreign state by mailing process to the foreign state's embassy in the United States. See Service of Legal Process by Mail on Foreign Governments in the United States, 71 Dept. State Bull. 458-459 (1974). In this case, the State Department has reiterated this view in amicus curiae briefs filed in this Court and in the Second Circuit. The Government also informs us that United States embassies do not accept service of process when the United States is sued in a foreign court, and the Government expresses concern that accepting respondents' interpretation of § 1608 might imperil this practice. Brief for United States as Amicus Curiae 25-26. Contending that the State Department held a different view of Article 22(1) before 1974, respondents argue that the Department's interpretation of the Vienna Convention is wrong, but we need not decide this question. By giving § 1608(a)(3) its most natural reading, we avoid the potential international implications of a contrary interpretation. III Respondents' remaining arguments do not alter our conclusion. First, respondents contend that § 1608(a)(3) says nothing about where the service packet must be sent. See Brief for Respondents 22 ("the statute is silent as to the location where the service packet should be sent"). But while it is true that § 1608(a)(3) does not expressly provide where service must be sent, it is common ground that this provision must implicitly impose some requirement. Respondents acknowledge this when they argue that the provision demands that service be sent "to a location that is likely to have a direct line of communication to the foreign minister." Id., at 34; cf. post, at ---- (stating that sending a letter to a Washington-based embassy "with a direct line of communication" to the foreign minister seems as efficient as sending it to the minister's office in the foreign state). The question, then, is precisely what § 1608(a)(3) implicitly requires. Respondents assure us that a packet sent to "an embassy plainly would qualify," while a packet sent to "a tourism office plainly would not." Brief for Respondents 34. But if the test is whether "a location ... is likely to have a direct line of communication to the foreign minister," ibid. , it is not at all clear why service could not be sent to places in the United States other than a foreign state's embassy. Why not allow the packet to be sent, for example, to a consulate? The residence of the foreign state's ambassador? The foreign state's mission to the United Nations? Would the answer depend on the size or presumed expertise of the staff at the delivery location? The difficult line-drawing problems that flow from respondents' interpretation of § 1608(a)(3) counsel in favor of maintaining a clear, administrable rule: The service packet must be mailed directly to the foreign minister at the minister's office in the foreign state. Second, respondents (and the dissent, see post, at ---- - ----) contrast the language of § 1608(a)(3) with that of § 1608(a)(4), which says that service by this method requires that process be sent to the Secretary of State in "Washington, District of Columbia." If Congress wanted to require that process under § 1608(a)(3) be sent to a foreign minister's office in the minister's home country, respondents ask, why didn't Congress use a formulation similar to that in § 1608(a)(4) ? This is respondents' strongest argument, and in the end, we see no entirely satisfactory response other than that § 1608(a) does not represent an example of perfect draftsmanship. We grant that the argument based on the contrasting language in § 1608(a)(4) cuts in respondents' favor, but it is outweighed in our judgment by the countervailing arguments already noted. Finally, respondents contend that it would be "the height of unfairness to throw out [their] judgment" based on the highly technical argument belatedly raised by petitioner. See Brief for Respondents 35. We understand respondents' exasperation and recognize that enforcing compliance with § 1608(a)(3) may seem like an empty formality in this particular case, which involves highly publicized litigation of which the Government of Sudan may have been aware prior to entry of default judgment. But there are circumstances in which the rule of law demands adherence to strict requirements even when the equities of a particular case may seem to point in the opposite direction. The service rules set out in § 1608(a)(3), which apply to a category of cases with sensitive diplomatic implications, clearly fall into this category. Under those rules, all cases must be treated the same. Moreover, as respondents' counsel acknowledged at oral argument, holding that Sudan was not properly served under § 1608(a)(3) is not the end of the road. Tr. of Oral Arg. 56. Respondents may attempt service once again under § 1608(a)(3), and if that attempt fails, they may turn to § 1608(a)(4). When asked at argument to provide examples of any problems with service under § 1608(a)(4), respondents' counsel stated that he was unaware of any cases where such service failed. Id., at 59-62. * * * We interpret § 1608(a)(3) as it is most naturally understood: A service packet must be addressed and dispatched to the foreign minister at the minister's office in the foreign state. 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. Sudan questions whether respondents named the correct foreign minister and whether the Sudanese Embassy received the service packet. Because we find the service deficient in any event, we assume for the sake of argument that the correct name was used and that the Embassy did receive the packet. Notably, the idea of treating someone at a foreign state's embassy as an agent for purposes of service on the foreign state was not unfamiliar to Congress. An earlier proposed version of the FSIA would have permitted service on a foreign state by sending the service packet "to the ambassador or chief of mission of the foreign state." See S. 566, 93d Cong., 1st Sess., § 1608, p. 6 (1973). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Chief Justice. Rehnquist delivered the opinion of the Court. The West Virginia Constitution guarantees to its citizens that, with certain exceptions, “taxation shall be equal and uniform throughout the State, and all property, both real and personal, shall be taxed in proportion to its value . . . .” Art. X, § 1. The Webster County tax assessor valued petitioners’ real property on the basis of its recent purchase price, but made only minor modifications in the assessments of land which had not been recently sold. This practice resulted in gross disparities in the assessed value of generally comparable property, and we hold that it denied petitioners the equal protection of the laws guaranteed to them by the Fourteenth Amendment. Between 1975 and 1986, the tax assessor for Webster County, West Virginia, fixed yearly assessments for property within the county at 50% of appraised value. She fixed the appraised value at the declared consideration at which the property last sold. Some adjustments were made in the assessments of properties that had not been recently sold, although they amounted to, at most, 10% increases in 1976, 1981, and 1983 respectively. In 1974, for example, Allegheny Pittsburgh Coal Company (Allegheny) purchased fee, surface, and mineral interests in certain properties for a stated price somewhat in excess of $24 million, and during the tax years 1976 through 1983 its property was assessed annually at half of this figure. In 1982 Allegheny sold the property to East Kentucky Energy Corp. (Kentucky Energy) for a figure of nearly $30 million, and the property thereafter was annually assessed at a valuation just below $15 million. Oneida Coal Company and Shamrock Coal Company participated in similar transactions in Webster County, and the property they purchased or sold was assessed in a similar manner. Each year, petitioners pursued relief before the County Commission of Webster County sitting as a review board. They argued that the assessment policy of the Webster County assessor systematically resulted in appraisals for their property that were excessive compared to the appraised value of similar parcels that had not been recently conveyed. Each year the county commission affirmed the assessments, and each year petitioners appealed to the State Circuit Court. A group of these appeals from Allegheny and its successor in interest, Kentucky Energy, were consolidated by the West Virginia Circuit Court and finally decided in 1985. App. to Pet. for Cert, in No. 87-1303, p. 15a. Another group of appeals from Shamrock and Oneida were consolidated and decided by the West Virginia Circuit Court early the next year. App. to Pet. for Cert, in No. 87-1310, p. 49a. The judge in both of these cases concluded that the system of real property assessment used by the Webster County assessor systematically and intentionally discriminated against petitioners in violation of the West Virginia Constitution and the Fourteenth Amendment’s Equal Protection Clause. He ordered the county commission to reduce the assessments on petitioners’ property to the levels recommended by the state tax commissioner in his valuation guidelines published for use by local assessors. Underlying the judge’s conclusions were findings that petitioners’ tax assessments over the years were dramatically in excess of those for comparable property in the county. He found that “the assessor did not compare the various features of the real estate to which the high assessment was applied with the various features of land assessed at a much lower rate.” App. to Pet. for Cert, in No. 87-1303, p. 29a; App. to Pet. for Cert, in No. 87-1310, p. 59a. “The questioned assessments were not based upon the presence of economically minable or removable coal, oil, gas or harvestable timber in or upon petitioners’ real estate, as compared to an absence of the same in or upon [neighboring] properties.” Ibid. Nor were they “based upon present use or immediately foreseeable economic development of petitioners’ real estate.” Ibid. Rather, “[t]he sole basis of the assessment of petitioners’ real estate was, according to the assessor, the consideration declared in petitioners’ deeds.” Ibid. This approach systematically produced dramatic differences in valuation between petitioners’ recently transferred property and otherwise comparable surrounding land. For the years 1976 through 1982, Allegheny was assessed and taxed at approximately 35 times the rate applied to owners of comparable properties. After purchasing that land, Kentucky Energy was assessed and taxed at approximately 33 times the rate of similar parcels. From 1981 through 1985, the county assessed and taxed the Shamrock-Oneida property at roughly 8 to 20 times that of comparable neighboring coal tracts. These disparities existed notwithstanding the adjustments made to the assessments of land not recently conveyed. In the case of the property held by Allegheny and Kentucky Energy, the county’s adjustment policy would have required more than 500 years to equalize the assessments. On appeal, the Supreme Court of Appeals of West Virginia reversed. It found that the record did not support the trial court’s ruling that the actions of the assessor and board of review constituted “intentional and systematic” discrimination. It held that “assessments based upon the price paid for the property in arm’s length transactions are an appropriate measure of the ‘true and actual value’ of . . . property.” In re 1975 Tax Assessments against Oneida Coal Co., - W. Va.-,-, 360 S. E. 2d 560, 564 (1987). That other properties might be undervalued relative to petitioners’ did not require that petitioners’ assessments be reduced: “‘Instead, they should seek to have the assessments of other taxpayers raised to market value.’” Id., at-, 360 S. E. 2d, at 565 (quoting Killen v. Logan County Comm’n, - W. Va. -, -, 295 S. E. 2d 689, 709 (1982)). We granted certiorari to decide whether these Webster County tax assessments denied petitioners the equal protection of the law and, if so, whether petitioners could constitutionally be limited to the remedy of seeking to raise the assessments of others. 485 U. S. 976 (1988). We agree with the import of the opinion of the Supreme Court of Appeals of West Virginia that petitioners have no constitutional complaint simply because their property is assessed for real property tax purposes at a figure equal to 50% of the price paid for it at a recent arm’s-length transaction. But their complaint is a comparative one: while their property is assessed at 50% of what is roughly its current value, neighboring comparable property which has not been recently sold is assessed at only a minor fraction of that figure. We do not understand the West Virginia Supreme Court of Appeals to have disputed this fact. We read its opinion as saying that even if there is a constitutional violation on these facts, the only remedy available to petitioners was an effort to have the assessments on the neighboring properties raised by an appropriate amount. We hold that the assessments on petitioners’ property in this case violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and that petitioners may not be remitted to the remedy specified by the Supreme Court of Appeals of West Virginia. The county argues that its assessment scheme is rationally related to its purpose of assessing properties at true current value: when available, it makes use of exceedingly accurate information about the market value of a property — the price at which it was recently purchased. As those data grow stale, it periodically adjusts the assessment based on some perception of the general change in area property values. We do not intend to cast doubt upon the theoretical basis of such a scheme. That two methods are used to assess property in the same class is, without more, of no constitutional moment. The Equal Protection Clause “applies only to taxation which in fact bears unequally on persons or property of the same class.” Charleston Fed. Savings & Loan Assn. v. Alderson, 324 U. S. 182, 190 (1945) (collecting cases). The use of a general adjustment as a transitional substitute for an individual reappraisal violates no constitutional command. As long as general adjustments are accurate enough over a short period of timé to equalize the differences in proportion between the assessments of a class of property holders, the Equal Protection Clause is satisfied. Just as that Clause tolerates occasional errors of state law or mistakes in judgment when valuing property for tax purposes, see Sunday Lake Iron Co. v. Wakefield, 247 U. S. 350, 353 (1918); Coulter v. Louisville & Nashville R. Co., 196 U. S. 599 (1905), it does not require immediate general adjustment on the basis of the latest market developments. In each case, the constitutional requirement is the seasonable attainment of a rough equality in tax treatment of similarly situated property owners. Allied Stores of Ohio v. Bowers, 358 U. S. 522, 526-527 (1959),. and cases there cited; cf. FPC v. Hope Natural Gas Co., 320 U. S. 591, 602 (1944) (noting, in the ratemaking context, that “[i]t is not theory, but the impact . . . that counts”). But the present action is not an example of transitional delay in adjustment of assessed value resulting in inequalities in assessments of comparable property. Petitioners’ property has been assessed at roughly 8 to 35 times more than comparable neighboring property, and these discrepancies have continued for more than 10 years with little change. The county’s adjustments to the assessments of property not recently sold are too small to seasonably dissipate the remaining disparity between these assessments and the assessments based on a recent purchase price. The States, of course, have broad powers to impose and collect taxes. A State may divide different kinds of property into classes and assign to each class a different tax burden so long as those divisions and burdens are reasonable. Allied Stores, supra, at 526-527 (“The State may impose different specific taxes upon different trades and professions and may vary the rate of excise upon various products”). It might, for example, decide to tax property held by corporations, including petitioners, at a different rate than property held by individuals. See Lehnhausen v. Lake Shore Auto Parts Co., 410 U. S. 356 (1973) (Illinois ad valorem tax on personalty of corporations). In each case, “[i]f the selection or classification is neither capricious nor arbitrary, and rests upon some reasonable consideration of difference or policy, there is no denial of the equal protection of the law.” Brown-Forman Co. v. Kentucky, 217 U. S. 563, 573 (1910). But West Virginia has not drawn such a distinction. Its Constitution and laws provide that all property of the kind held by petitioners shall be taxed at a rate uniform throughout the State according to its estimated market value. There is no suggestion in the opinion of the Supreme Court of Appeals of West Virginia, or from any other authoritative source, that the State may have adopted a different system in practice from that specified by statute; we have held that such a system may be valid so long as the implicit policy is applied evenhandedly to all similarly situated property within the State. Nashville C. & S. L. R. Co. v. Browning, 310 U. S. 362, 368-369 (1940). We are not advised of any West Virginia statute or practice which authorizes individual counties of the State to fashion their own substantive assessment policies independently of state statute. See Salsburg v. Maryland, 346 U. S. 545 (1954). The Webster County assessor has, apparently on her own initiative, applied the tax laws of West Virginia in the manner heretofore described, with the resulting disparity in assessed value of similar property. Indeed, her practice seems contrary to that of the guide published by the West Virginia Tax Commission as an aid to local assessors in the assessment of real property. “[I]ntentional systematic undervaluation by state officials of other taxable property in the same class contravenes the constitutional right of one taxed upon the full value of his property.” Sunday Lake Iron Co., supra, at 352-353; Sioux City Bridge Co. v. Dakota County, 260 U. S. 441, 445-446 (1923); Cumberland Coal Co. v. Board of Revision of Tax Assessments in Greene County, Pa., 284 U. S. 23, 28-29 (1931). “The equal protection clause . . . protects the individual from state action which selects him out for discriminatory treatment by subjecting him to taxes not imposed on others of the same class.” Hillsborough v. Cromwell, 326 U. S. 620, 623 (1946). We have no doubt that petitioners have suffered from such “intentional systematic undervaluation by state officials” of comparable property in Webster County. Viewed in isolation, the assessments for petitioners’ property may fully comply with West Virginia law. But the fairness of one’s allocable share of the total property tax burden can only be meaningfully evaluated by comparison with the share of others similarly situated relative to their property holdings. The relative undervaluation of comparable property in Webster County over time therefore denies petitioners the equal protection of the law. A taxpayer in this situation may not be remitted by the State to the remedy of seeking to have the assessments of the undervalued property raised. “The [Equal Protection Clause] is not satisfied if a State does not itself remove the discrimination, but imposes on him against whom the discrimination has been directed the burden of seeking an upward revision of the taxes of other members of the class.” Hillsborough, supra, at 623, citing Sioux City Bridge Co., supra, 445-447; Iowa-Des Moines Nat’l Bank v. Bennett, 284 U. S. 239, 247 (1931); Cumberland Coal Co., supra, at 28-29. The judgment of the Supreme Court of Appeals of West Virginia is accordingly reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Petitioners contend that the adjustments to the assessments for property not recently transferred were uneven at best. According to petitioners, a study of the assessed value of all coal tracts in Webster County from 1983 to 1984 was introduced at trial and demonstrated that the assessment of 35% of the tracts was unchanged during that period. The courts below do not appear to have made specific factual findings accepting or rejecting this study or petitioners’ conclusions drawn from it. For the purposes of argument, we will accept the county’s figures since we find that, even accepting those figures, the adjustments do not dispel the constitutional flaw in the assessment system. After each of these primary decisions adjudicating the validity of the assessments to the lands in question, petitioners obtained a number of other orders applying the findings in the primary decisions to their specific cases and to other appeals not consolidated in the primary decisions. See App. to Pet. for Cert, in No. 87-1310, pp. 79a, 83a, and 86a. Respondent argues in this Court that petitioners’ land was not truly comparable to that of the surrounding properties. It points to the fact that one of the parcels held by Allegheny, and then by Kentucky Energy, comprising 4,287 acres, allegedly contains 32 million tons of low-sulfur coal recoverable by strip mining. This unusually valuable parcel skews the average value of all the properties, as well as serving as a basis for higher valuation of this parcel than those surrounding it. Petitioners make a number of answers: First, they rely on respondent’s stipulations that “[t]he properties surrounding the property owned by . . . Petitioner, . . . are comparable properties in that they are substantially the same geologically as the properties of the Petitioner . . . .” Record 1319-1320, 1085. Next, they point to the factual findings of the West Virginia Circuit Court, never rejected by the West Virginia Supreme Court of Appeals, that “[although the real estate of each of these petitioners is not identical to that of all other real estate in Webster County, it appears that petitioners’ real estate is substantially similar to the real estate of the others in topography, location, access, development, mineral content and forestation, and that the petitioners’ real estate is substantially similar to adjacent and contiguous tracts and parcels of real estate owned by others.” App. to Pet. for Cert, in No. 87-1303, p. 16a; App. to Pet. for Cert, in No. 87-1310, p. 50a. Finally, they note that the court’s findings were founded on the testimony of Kentucky Energy’s expert witness, the one who testified to the estimated 32 million tons of coal under Kentucky Energy’s land, that the surrounding properties were equally promising. On direct examination he said: “As far as comparing this area with the surrounding property, geologically, those same seams are present on all the other properties [suggested as comparable]. The same coal seams are present there. . . . [T]he coal is there and I know that the chances of them being mineable are just as good there as they are on the [Kentucky Energy] properties. “. . . There may be some variations, depending on which individual seam is mineable from one property to the other, but in the long run they are very similar properties located within the same area and there is no geological reason that they should not be comparable.” Brief in Opposition in No. 87-1303, pp. 10a-lla. We think that petitioners’ submissions justify the conclusion on the record presented to us that their properties were, in aspects relevant to valuation and assessment, comparable to surrounding property valued and assessed at markedly lower amounts. We need not and do not decide today whether the Webster County assessment method would stand on a different footing if it were the law of a State, generally applied, instead of the aberrational enforcement policy it appears to be. The State of California has adopted a similar policy as Article XIIIA of its Constitution, popularly known as “Proposition 13.” Proposition 13 generally provides that property will be assessed at its 1975-1976 value, and reassessed only when transferred or constructed upon, or in a limited manner for inflation. Cal. Const., Art. XIIIA, §2 (limiting inflation adjustments to 2% per year). The system is grounded on the belief that taxes should be based on the original cost of property and should not tax unrealized paper gains in the value of the property. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Per Curiam. The petition for habeas corpus in this case, which was filed in the District Court for the Northern District of California and which was prepared by petitioner pro se, attacked the constitutionality of petitioner’s confinement in the state prison system pursuant to the California Indeterminate Sentence Law. Petitioner recited that he was convicted in 1952 on two counts of first-degree robbery and was given consecutive sentences of not less than five years each, with no maximum prescribed by law. California law provides that where no maximum term is set, the punishment shall be life imprisonment subject to the power of the California Adult Authority to “determine and redetermine” the length of time that a prisoner shall be required to serve. Cal. Penal Code §§ 671 (1955), 1168, 3020 (1956). Petitioner asserted that in June 1961 he appeared before the Adult Authority for parole consideration, as he had done on a yearly basis during his confinement. According to petitioner, during that appearance the members of the Authority evinced an intention to extend his term beyond March 1962, the date that had been tentatively set for his discharge, solely because petitioner refused to admit his guilt. Shortly after the appearance, the Adult Authority rescinded its earlier action scheduling petitioner for release in 1962; no new date for release was fixed, and petitioner has remained in custody continuously since that time. The petition for habeas corpus stated flatly that the appearance before the Authority in June 1961 was for routine parole consideration; petitioner claimed that he had been free from infractions of prison rules for at least a year prior to the appearance. He further declared that he was given no reason for the redetermination of his sentence, and received no notice or hearing concerning any possible basis for such action. In conclusion, petitioner stated that, “obviously, the only reason for this action was to coerce petitioner to plead guilty and not challenge his conviction after being released on discharge.” Respondents filed no response to the petition in the District Court. That court denied the writ without a hearing, in a brief order stating that no federal questions had been presented. The Court of Appeals for the Ninth Circuit denied a certificate of probable cause to appeal for the reasons expressed by the District Court, and petitioner applied to this Court for a writ of certiorari. On the facts recited by petitioner, we granted certiorari to consider his contention that his privilege against compulsory self-incrimination had been infringed by the prison authorities. 393 U. S. 1062 (1969). In its brief on the merits, respondents have brought to our attention a series of prison documents, whose accuracy has in no way been drawn into question by petitioner, that cast petitioner’s detention in a light wholly different from that shed by his petition for certiorari. These documents show that in December 1960 Conway was served with a notice charging him with violation of prison rules and informing him that the violation might result in a refixing of his prison term; he attended a hearing at which he was found guilty of fighting with another prisoner and was sentenced to three days in isolation, with a recommendation that his Adult Authority appearance be postponed until June 1961. Following that appearance, as petitioner notes, the Authority rescinded its earlier action fixing a determinate sentence, thereby reinstating by operation of law his initial indeterminate sentence. Thus, it now appears respondents have documentary evidence that the actual facts simply do not present the issue for which certiorari was granted by us. That this imposition on this Court has been revealed only at this late stage seems to have been the result of the policy of the Attorney General of California, as explained in the respondents' brief, to make no response to habeas corpus petitions of state prisoners unless the court in which a petition is filed requests a response, as for example, so respondents say, by issuing an order to show cause why the writ should not be granted. Since no response eventuated in this instance and respondents also failed to flush the problem at the certiorari stage, both this Court and the attorney appointed by the Court to represent petitioner here have unwittingly been placed in the unfortunate posture of addressing a situation that does not exist. In this state of affairs we decline to adjudicate this case. Were we to pass upon the purely artificial and hypothetical issue tendered by the petition for certiorari we would not only in effect be rendering an advisory opinion but also lending ourselves to an unjustifiable intrusion upon the time of this Court. Accordingly, the writ of certiorari is dismissed as improvidently granted. It is so ordered. See Cal. Penal Code § 1168 (1956) and provisions there listed. Petitioner claimed that his discussion with the members of the Authority had turned to what he planned to do if released. When petitioner stated that he expected to go “to Bakersfield,” one member responded: “But that is where you got into this trouble. What are you planning to do there?” Petitioner declared, “I’m going to fight my case,” prompting the member to ask whether petitioner had not admitted to the Authority, two years earlier, that he was guilty. After petitioner denied the previous admission, the members raised — assertedly for the first time — the possibility of extending petitioner’s term. In response to the petition for certiorari respondents merely locked horns with the allegations of the petition as filed, without drawing the Court’s attention to the actual facts as subsequently revealed in its brief on the merits. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

I

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Chief Justice Rehnquist delivered the opinion of the Court. Respondent Mark Owen McGuire was found guilty in a California state court of second-degree murder for the killing of his infant daughter. After unsuccessfully challenging his conviction on appeal in the state courts, McGuire sought federal habeas relief, and the United States Court of Appeals for the Ninth Circuit set aside his conviction. 902 F. 2d 749 (1990). We hold that in so doing the Court of Appeals exceeded the limited scope of federal habeas review of state convictions. McGuire and his wife brought their 6-month-old daughter, Tori, to a hospital in Hayward, California. The baby was bluish in color and was not breathing. The attending physician noticed a large and relatively recent bruise on Tori’s chest with multiple bruises around it, as well as black and blue marks around her ears. Efforts to revive the child were unsuccessful; Tori died 45 minutes after being brought to the hospital. An autopsy revealed 17 contusions on the baby’s chest, 29 contusions in her abdominal area, a split liver, a split pancreas, a lacerated large intestine, and damage to her heart and one of her lungs. The autopsy also uncovered evidence of rectal tearing, which was at least six weeks old, and evidence of partially healed rib fractures, which were approximately seven weeks old. The police questioned McGuire and his wife. McGuire stated his belief that Tori’s injuries must have resulted from a fall off the family couch. He told the police that when his wife went out to make a telephone call, he went upstairs, leaving Tori lying on the couch; when he heard the baby cry, he came back downstairs to find her lying on the floor. After a police officer expressed skepticism at this explanation, McGuire replied that “[m]aybe some Mexicans came in” while he was upstairs. Id., at 751. During separate questioning, McGuire’s wife stated'that she had not hit Tori, and that she was unsure whether her husband had done so. McGuire was charged with second-degree murder. At trial, the prosecution introduced both the statements made by McGuire to police and the medical evidence, including the evidence of prior rectal tearing and fractured ribs. Two physicians testified that Tori was a battered child, relying in part on the prior rib and rectal injuries, as well as on the more recent injuries. McGuire’s neighbor testified that she had seen McGuire carry Tori by one of her arms to the car and roughly pinch her cheeks together when she cried. The neighbor added that McGuire’s wife had expressed fear in leaving Tori alone with McGuire, because he had been rough with the baby and “did bad things” to her. In addition, the prosecution called a witness who had overheard a conversation between McGuire and his wife in the hospital emergency room the night of Tori’s death. According to the witness, McGuire’s wife several times insistently asked, “What really happened?” McGuire replied that he “didn’t know,” and that he “guessed” the baby fell off the couch. His wife continued to press for an answer, stating, “I am very patient. I can wait a long time. I want to know what really happened.” Finally, she told McGuire that “the baby was alright when I left. You are responsible.” App. 44; Brief for United States as Amicus Curiae 3-4. McGuire’s wife was called by the prosecution to testify at trial, after having been granted transactional immunity from future prosecution. In contrast to her prior statement to the police and her declarations at the hospital, she stated that she had beaten Tori on the day of her death before her husband arrived home. The jury convicted McGuire of second-degree murder. The California Court of Appeal affirmed McGuire’s conviction. The court observed that the evidence of prior rib and rectal injuries was introduced to prove “battered child syndrome.” That syndrome exists when a child has sustained repeated and/or serious injuries by nonaccidental means. People v. Bledsoe, 36 Cal. 3d 236, 249, 681 P. 2d 291, 299 (1984). After reviewing California authority on the subject, the court concluded that “proof of Tori’s ‘prior injuries’ tending to establish the ‘battered child syndrome’ was patently proper.” App. 47. The California Supreme Court denied review. McGuire then filed a petition for habeas corpus relief in the United States District Court for the Northern District of California. That court denied relief. The Court of Appeals for the Ninth Circuit reversed and granted McGuire’s habeas petition. The court ruled that the prior injury evidence was erroneously admitted to establish battered child syndrome, because no evidence linked McGuire to the prior injuries and no claim had been made at trial that the baby died accidentally. In addition, the court believed that the trial court’s instruction on the use of prior act evidence allowed a finding of guilt based simply on a judgment that McGuire committed the prior bad acts. The court concluded that the admission of the evidence, in conjunction with the prejudicial instruction, “rendered [McGuire’s] trial arbitrary and fundamentally unfair” in violation of due process. 902 F. 2d, at 753. We hold that none of the alleged errors rise to the level of a due process violation, and so reverse. I We first consider whether the admission of the prior injury evidence justified habeas relief. In ruling that McGuire’s due process rights were violated by the admission of the evidence, the Court of Appeals relied in part on its conclusion that the evidence was “incorrectly admitted . . . pursuant to California law.” Id,., at 754. Such an inquiry, however, is no part of a federal court’s habeas review of a state conviction. We have stated many times that “federal habeas corpus relief does not lie for errors of state law.” Lewis v. Jeffers, 497 U. S. 764, 780 (1990); see also Pulley v. Harris, 465 U. S. 37, 41 (1984). Today, we reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting ha-beas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States. 28 U. S. C. § 2241; Rose v. Hodges, 423 U. S. 19, 21 (1975) (per curiam). We thus turn to the question whether the admission of the evidence violated McGuire’s federal constitutional rights. California law allows the prosecution to introduce expert testimony and evidence related to prior injuries in order to prove “battered child syndrome.” People v. Bledsoe, supra, at 249, 681 P. 2d, at 299; Panderos v. Flood, 17 Cal. 3d 399, 409, 551 P. 2d 389, 393 (1976); People v. Jackson, 18 Cal. App. 3d 504,506-508,95 Cal. Rptr. 919, 921-922 (1971). The demonstration of battered child syndrome “simply indicates that a child found with [serious, repeated injuries] has not suffered those injuries by accidental means.” Id., at 507, 95 Cal. Rptr., at 921. Thus, evidence demonstrating battered child syndrome helps to prove that the child died at the hands of another and not by falling off a couch, for example; it also tends to establish that the “other,” whoever it may be, inflicted the injuries intentionally. When offered to show that certain injuries are a product of child abuse, rather than accident, evidence of prior injuries is relevant even though it does not purport to prove the identity of the person who might have inflicted those injuries. See id., at 506-508, 95 Cal. Rptr., at 921-922; People v. Bledsoe, supra, at 249, 681 P. 2d, at 299. Because the prosecution had charged McGuire with second-degree murder, it was required to prove that Tori’s death was caused by the defendant’s intentional act. Proof of Tori’s battered child status helped to do just that; although not linked by any direct evidence to McGuire, the evidence demonstrated that Tori’s death was the result of an intentional act by someone, and not an accident. The Court of Appeals, however, ignored the principle of battered child syndrome evidence in holding that this evidence was incorrectly admitted. For example, the court stated that “[ejvidence cannot have probative value unless a party connects it to the defendant in some meaningful way.” 902 F. 2d, at 753. We conclude that the evidence of prior injuries presented at McGuire’s trial, whether it was directly linked to McGuire or not, was probative on the question of the intent with which the person who caused the injuries acted. In holding the prior injury evidence inadmissible, the Court of Appeals also relied on the theory that, because no claim was made at trial that Tori died accidentally, the battered child syndrome evidence was irrelevant and violative of due process. Id., at 754. This ruling ignores the fact that the prosecution must prove all the elements of a criminal offense beyond a reasonable doubt. In this second-degree murder case, for example, the prosecution was required to demonstrate that the killing was intentional. Cal. Penal Code Ann. §§187, 189 (West 1988). By eliminating the possibility of accident, the evidence regarding battered child syndrome was clearly probative of that essential element, especially in light of the fact that McGuire had claimed prior to trial that Tori had injured herself by falling from the couch. The Court of Appeals, however, ruled that the evidence should have been excluded because McGuire did not raise the defense of accidental death at trial. But the prosecution’s burden to prove every element of the crime is not relieved by a defendant’s tactical decision not to contest an essential element of the offense. In the federal courts, “[a] simple plea of not guilty .. . puts the prosecution to its proof as to all elements of the crime charged.” Mathews v. United States, 485 U. S. 58, 64-65 (1988). Neither the Court of Appeals nor the parties have given us any reason to think that the rule is different in California. The evidence of battered child syndrome was relevant to show intent, and nothing in the Due Process Clause of the Fourteenth Amendment requires the State to refrain from introducing relevant evidence simply because the defense chooses not to contest the point. Concluding, as we do, that the prior injury evidence was relevant to an issue in the case, we need not explore further the apparent assumption of the Court of Appeals that it is a violation of the due process guaranteed by the Fourteenth Amendment for evidence that is not relevant to be received in a criminal trial. We hold that McGuire’s due process rights were not violated by the admission of the evidence. See Spencer v. Texas, 385 U. S. 554, 563-564 (1967) (“Cases in this Court have long proceeded on the premise that the Due Process Clause guarantees the fundamental elements of fairness in a criminal trial.... But it has never been thought that such cases establish this Court as a rule-making organ for the promulgation of state rules of criminal procedure”) (citations omitted). II The Court of Appeals, however, did not rely solely on a finding that the admission of the evidence was unconstitutional. It based its decision in part on a belief that the instruction given by the trial court, set forth in n. 1, supra, allowed the jury to consider the prior injury evidence for more than simply proof of the battered child syndrome, and thereby violated McGuire’s due process rights. McGuire focuses on the portion of the instruction explaining to the jury that the prior injury evidence “was received and may be considered by you only for the limited purpose of determining if it tends to show ... a clear connection between the other two offense[s] and the one of which the Defendant is accused, so that it may be logically concluded that if the Defendant committed other offenses, he also committed the crime charged in this case.” App. 41. McGuire argues that, despite the absence of any direct evidence showing that he caused the rib and rectal injuries, the instruction told the jury to find that he had committed those prior offenses. Furthermore, he argues, the instruction left the jury with the mistaken impression that it could base its finding of guilt on the simple fact that he had previously harmed Tori. Under McGuire’s reading, the instruction is transformed into a propensity instruction, allowing the jury to consider as evidence of his guilt the fact that his prior acts show a disposition to commit this type of crime. This, he contends, violates the Due Process Clause. In arguing his point, McGuire makes much of the fact that, in giving its instruction, the trial court deviated in part from standard jury instruction 2.50, 1 California Jury Instructions, Criminal (4th ed. 1979) (CALJIC). As we have stated above, however, the fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief. See Marshall v. Lonberger, 459 U. S. 422, 438, n. 6 (1988) (“[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state evidentiary rules”). Federal habeas courts therefore do not grant relief, as might a state appellate court, simply because the instruction may have been deficient in comparison to the CALJIC model. Nor do our habeas powers allow us to reverse McGuire’s conviction based on a belief that the trial judge incorrectly interpreted the California Evidence Code in ruling that the prior injury evidence was admissible as bad acts evidence in this case. See Cal. Evid. Code Ann. § 1101(b) (West 1988). The only question for us is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Cupp v. Naughten, 414 U. S. 141, 147 (1973); see also Henderson v. Kibbe, 431 U. S. 145, 154 (1977); Donnelly v. DeChristoforo, 416 U. S. 637, 643 (1974) (“ ‘[I]t must be established not merely that the instruction is undesirable, erroneous, or even “universally condemned,” but that it violated some [constitutional] right’ ”). It is well established that the instruction “may not be judged in artificial isolation,” but must be considered in the context of the instructions as a whole and the trial record. Cupp v. Naughten, supra, at 147. In addition, in reviewing an ambiguous instruction such as the one at issue here, we inquire “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution. Boyde v. California, 494 U. S. 370, 380 (1990). And we also bear in mind our previous admonition that we “have defined the category of infractions that violate ‘fundamental fairness’ very narrowly.” Dowling v. United States, 493 U. S. 342, 352 (1990). “Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation.” Ibid. McGuire first claims that the instruction directed the jury to find that he had caused the prior injuries, thereby effectively taking that question from the jury. One might argue that the “two offense[s]” referred to in the instruction were McGuire’s pinching of the child’s cheeks and the lifting of the child by her arm. When read in context, however, we conclude that the most likely interpretation is that the reference was to the rectal tearing and fractured ribs. McGuire argues that, despite the lack of any direct evidence linking him to those injuries, the instruction directed the jury to find that he had committed them. This claim is clearly foreclosed, however, by the language of the instruction. The challenged portion of the instruction included the words “if the Defendant committed other offenses.” App. 41. By including this phrase, the trial court unquestionably left it to the jury to determine whether McGuire committed the prior acts; only if the jury believed he was the perpetrator could it use the evidence in deciding whether McGuire was guilty of the crime charged. Therefore, if the jury did not believe McGuire caused the prior injuries, he was not harmed by the challenged portion of the instruction. To the extent that the jury may have believed McGuire committed the prior acts and used that as a factor in its deliberation, we observe that there was sufficient evidence to sustain such a jury finding by a preponderance of the evidence. Cf. People v. Simon, 184 Cal. App. 3d 125, 134, 228 Cal. Rptr. 855, 858 (1986); Huddleston v. United States, 485 U. S. 681,690 (1988). The proof of battered child syndrome itself narrowed the group of possible perpetrators to McGuire and his wife, because they were the only two people regularly caring for Tori during her short life. See People v. Jackson, 18 Cal. App. 3d, at 507, 95 Cal. Rptr., at 921 (“Only someone regularly ‘caring’ for the child has the continuing opportunity to inflict these types of injuries; an isolated contact with a vicious stranger would not result in this pattern of successive injuries stretching through several months”). A neighbor testified that she had seen McGuire treat Tori roughly on two occasions, and that McGuire’s wife was scared to leave Tori alone with McGuire because he “did bad things” to her; the neighbor further testified that she had never seen McGuire’s wife abuse the child in any way. Futhermore, when being questioned by the police after Tori died, McGuire’s wife stated that she observed bruises on the baby’s body when bathing her. When asked by the police for an explanation, she replied, “I don’t really know, you know, I am not the only one who is taking care of her.” App. 131. The evidence described, along with other evidence in the record, convinces us that there was sufficient proof for the jury to conclude, if it so desired, that McGuire caused the prior rib and rectal injuries. McGuire also contends that, even if the determination of the perpetrator was left to the jury, the instruction constituted a “propensity” instruction, allowing the jury to base its determination of guilt in part upon the conclusion that McGuire had committed the prior acts and therefore had a propensity to commit this type of crime. While the instruction was not as clear as it might have been, we find that there is not a “reasonable likelihood” that the jury would have concluded that this instruction, read in the context of other instructions, authorized the use of propensity evidence pure and simple. Boyde v. California, supra, at 380. It seems far more likely that the jury understood the instruction, supra, at 71, to mean that if it found a “clear connection” between the prior injuries and the. instant injuries, and if it found that McGuire had committed the prior injuries, then it could use that fact in determining that McGuire committed the crime charged. The use of the evidence of prior offenses permitted by this instruction was therefore parallel to the familiar use of evidence of prior acts for the purpose of showing intent, identity, motive, or plan. See, e. g., Fed. Rule Evid. 404(b). Furthermore, the trial court guarded against possible misuse of the instruction by specifically advising the jury that the “[prior injury] evidence, if believed, was not received, and may not be considered by you[,] to prove that [McGuire] is a person of bad character or that he has a disposition to commit crimes.” See n. 1, supra. Especially in light of this limiting provision, we reject McGuire’s claim that the instruction should be viewed as a propensity instruction. We therefore hold that neither the introduction of the challenged evidence, nor the jury instruction as to its use, “so infused the trial with unfairness as to deny due process of law.” Lisenba v. California, 314 U. S. 219, 228 (1941); see also Donnelly v. DeChristoforo, 416 U. S., at 643. The judgment of the Court of Appeals is therefore Reversed. Justice Thomas took no part in the consideration or decision of this case. The court instructed the jury: “Evidence has been introduced for the purpose of showing that the Defendant committed acts similar to those constituting a crime other than that for which he is on trial. Such evidence, if believed, was not received, and may not be considered by you[,] to prove that he is a person of bad character or that he has a disposition to commit crimes. Such evidence was received and may be considered by you only for the limited purpose of determining if it tends to show three things: “1. The impeachment of Daisy McGuire’s testimony that she had no cause to be afraid of the Defendant, “2. To establish the battered child syndrome, and “3. Also a clear connection between the other two offense[s] and the one of which the Defendant is accused, so that it may be logically concluded that if the Defendant committed other offenses, he also committed the crime charged in this case. “For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. You are not permitted to consider evidence for any other purpose.” App. 40-41. In this regard, we observe that the Ninth Circuit reached a similar result in Blair v. McCarthy, 881 F. 2d 602 (1989), cert. granted, 498 U. S. 807, vacated as moot and remanded, 498 U. S. 954 (1990). In that case, the Court of Appeals based its grant of habeas relief solely on a violation of state law that prejudiced the defendant. Blair v. McCarthy, supra, at 603-604. As our discussion above makes clear, such state-law violations provide no basis for federal habeas relief. Meticulous compliance with CAUIC 2.50, as in effect at McGuire’s trial, would have led the trial court to instruct the jury that the prior injury evidence “was received and may be considered by you only for the limited purpose of determining if it tends to show: “A characteristic method, plan or scheme in the commission of criminal acts similar to the method, plan or scheme used in the commission of the offense in this case which would further tend to show a clear connection between the other offense[s] and the one of which defendant is accused so that it may be logically concluded that if defendant committed the other offense[s] he also committed the crime charged in this case” (portion in italics was omitted from the actual jury instruction given at McGuire’s trial). We acknowledge that language in the later cases of Cage v. Louisiana, 498 U. S. 39 (1990), and Yates v. Evatt, 500 U. S. 391 (1991), might be read as endorsing a different standard of review for jury instructions. See Cage, supra, at 41 (“In construing the instruction, we consider how reasonable jurors could have understood the charge as a whole”); Yates, supra, at 401 (“We think a reasonable juror would have understood the [instruction] to mean . . In Boyde, however, we made it a point to settle on a single standard of review for jury instructions — the “reasonable likelihood” standard — after considering the many different phrasings that had previously been used by this Court. 494 U. S., at 379-380 (considering and rejecting standards that required examination of either what a reasonable juror “could” have done or “would” have done). So that we may once again speak with one voice on this issue, we now disapprove the standard of review language in Cage and Yates, and reaffirm the standard set out in Boyde. Because we need not reach the issue, we express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of “prior crimes” evidence to show propensity to commit a charged crime. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Per Curiam. This suit in admiralty, a libel in personam brought in the District Court for the Canal Zone, is petitioner’s third attempt to secure damages for injuries alleged to have been sustained on December 3, 1947, while a passenger on board respondent’s steamship Panama. Petitioner instituted her first action against the respondent on April 10,1948. This complaint was dismissed October 7, 1948, after the company successfully maintained that petitioner’s only remedy was to sue the United States under the Federal Tort Claims Act; that respondent, whose entire stock is owned by the United States, was a “federal agency” within the meaning of that Act. An action against the United States filed on November 29, 1948 — ^still within the one-year period of limitation— was dismissed by the District Court before reaching trial on the merits, after Congress had amended, on July 16, 1949, the Federal Tort Claims Act, excluding from its coverage “Any claim arising from the activities of the Panama Railroad Company.” Five days later, on October 19, 1949, petitioner commenced the present suit.- Respondent pleaded laches on the theory that, since the one-year Canal Zone statute of limitations now barred any action at law, laches should bar any remedy in admiralty. The District Court sustained this defense, and entered judgment for the respondent. The Court of Appeals affirmed on that ground, 185 F. 2d 730. We granted certiorari, 341 U. S. 934. Though the existence of laches is a question primarily addressed to the discretion of the trial court, the matter should not be determined merely by a reference to and a mechanical application of the statute of limitations. The equities of the parties must be considered as well Where there has been no inexcusable delay in seeking a remedy and where no prejudice to the defendant has ensued from the mere passage of time, there should be no bar to relief. The Key City, 14 Wall. 653 (1872), Southern Pacific Co. v. Bogert, 250 U. S. 483 (1919); Holmberg v. Armbrecht, 327 U. S. 392 (1946); see McGrath v. Panama R. Co., 298 F. 303, 304 (1924). Petitioner has diligently sought redress in this case. Twice within the year following her injuries she brought suit. The second action abated through an Act of Congress and not through any fault of her own. There is no showing that respondent’s position has suffered from the fact that the claim has not yet proceeded to trial on its merits. Respondent contends that, in any event, the décision below must be affirmed because the petitioner at no time has had a cause of action against the company. It contends that, at the time of the injury, the United States and not the company was liable, and that Public Law 172, which now renders the company aménable to suit, should not operate retroactively to transfer the preexisting liability of the Government to the respondent. We mhst reject this view. The company was subject to suit before passage of the Tort Claims Act, Panama R. Co. v. Minnix, 282 F. 47 (1922), and its inclusion within the scope of that Act meant only that the United States was responsible in damages for its torts. Without interval, from the time of respondent’s incorporation, until July. 16, 1949, those injured through fault, of the company were never left without means of redress. Respondent would now have us attribute to Congress the intent to create an inequitable hiatus. Despite the fact that the stated “purpose” of Public Law 172 was simply to “exclude claims against the . . . Company from the provisions”' of the Tort Claims Act, respondent would have us hold that Congress meant to cut off, summarily, the remedy of all who had sued the United States for torts which had been committed by the Panama Railroad Company during the year preceding enactment of Public Law 172. In our view, the amendment permitted outstanding claims upon which suit had been instituted against the United States to be enforced by prompt proceedings directly against the company. The petitioner followed this course. This interpretation would seem to be sustained by the statement of the company’s president when he endorsed the passage of Public Law 172, securing the exclusion of respondent from the Tort Claims Act, at which time he said that though the Act embraced “claims against the Panama Railroad Company,” its provisions were not well designed to expedite the redress of such injuries, and that Congress should enact Public Law 172 “to continue unimpaired . . . the amenability of the Company to suit in the ordinary course.” The decision of the Court of Appeals is reversed and the cause is remanded to the District' Court for further proceedings. Reversed. Mr. Justice Minton took no part in the consideration or decision of this case. 28 U. S. C. §§ 2671, 2679. Public Law 172, 81st Cong., 1st Sess., 63 Stat. 444, 28 U. S. C. § 2680 (m). Canal Zone Code, 1934, Tit. 4, § 87 (3). H. R. Rep. No. 830, 81st Cong., 1st Sess.; S. Rep. No. 167, id. H. R. Rep. No. 830, supra, 3, 4; S. Rep. No. 167, supra, 3, 4. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

I

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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Scalia delivered the opinion of the Court. The Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56, imposes certain duties upon incumbent local telephone companies in order to facilitate market entry by competitors, and establishes a complex regime for monitoring and enforcement. In this case we consider whether a complaint alleging breach of the incumbent’s duty under the 1996 Act to share its network with competitors states a claim under § 2 of the Sherman Act, 26 Stat. 209. Petitioner Verizon Communications Inc. is the incumbent local exchange carrier (LEC) serving New York State. Before the 1996 Act, Verizon, like other incumbent LECs, enjoyed an exclusive franchise within its local service area. The 1996 Act sought to “uproo[t]” the incumbent LECs’ monopoly and to introduce competition in its place. Verizon Communications Inc. v. FCC, 535 U. S. 467, 488 (2002). Central to the scheme of the Act is the incumbent LEC’s obligation under 47 U. S. C. § 251(c) to share its network with competitors, see AT&T Corp. v. Iowa Utilities Bd., 525 U. S. 366, 371 (1999), including provision of access to individual elements of the network on an “unbundled” basis. § 251(c)(3). New entrants, so-called competitive LECs, resell these unbundled network elements (UNEs), recombined with each other or with elements belonging to the LECs. Verizon, like other incumbent LECs, has taken two significant steps within the Act’s framework in the direction of increased competition. First, Verizon has signed interconnection agreements with rivals such as AT&T, as it is obliged to do under § 252, detailing the terms on which it will make its network elements available. (Because Verizon and AT&T could not agree upon terms, the open issues were subjected to compulsory arbitration under §§ 252(b) and (c).) In 1997, the state regulator, New York’s Public Service Commission (PSC), approved Verizon’s interconnection agreement with AT&T. Second, Verizon has taken advantage of the opportunity provided by the 1996 Act for incumbent LECs to enter the long-distance market (from which they had long been excluded). That required Verizon to satisfy, among other things, a 14-item checklist of statutory requirements, which includes compliance with the Act’s network-sharing duties. §§ 271(d)(3)(A) and (c)(2)(B). Checklist item two, for example, includes “[n]ondiscriminatory access to network elements in accordance with the requirements” of § 251(c)(3). § 271(c)(2)(B)(ii). Whereas the state regulator approves an interconnection agreement, for long-distance approval the incumbent LEC applies to the Federal Communications Commission (FCC). In December 1999, the FCC approved Verizon’s § 271 application for New York. Part of Verizon’s UNE obligation under § 251(c)(3) is the provision of access to operations support systems (OSS), a set of systems used by incumbent LECs to provide services to customers and ensure quality. Verizon’s interconnection agreement and long-distance authorization each specified the mechanics by which its OSS obligation would be met. As relevant here, a competitive LEC sends orders for service through an electronic interface with Verizon’s ordering system, and as Verizon completes certain steps in filling the order, it sends confirmation back through the same interface. Without OSS access a rival cannot fill its customers’ orders. In late 1999, competitive LECs complained to regulators that many orders were going unfilled, in violation of Verizon’s obligation to provide access to OSS functions. The PSC and FCC opened parallel investigations, which led to a series of orders by the PSC and a consent decree with the FCC. Under the FCC consent decree, Verizon undertook to make a “voluntary contribution” to the U. S. Treasury in the amount of $3 million, 15 FCC Red. 5415,5421, ¶ 16 (2000); under the PSC orders, Verizon incurred liability to the competitive LECs in the amount of $10 million. Under the consent decree and orders, Verizon was subjected to new performance measurements and new reporting requirements to the FCC and PSC, with additional penalties for continued noncompliance. In June 2000, the FCC terminated the consent decree. Enforcement Bureau Announces that Bell Atlantic Has Satisfied Consent Decree Regarding Electronic Ordering Systems in New York (June 20, 2000), http://www. fcc.gov/eb/News_Releases/bellatlet.html (all Internet materials as visited Dec. 12,2003, and available in Clerk of Court’s case file). The next month the PSC relieved Verizon of the heightened reporting requirement. Order Addressing OSS Issues, MCI WorldCom, Inc. v. Bell Atlantic-New York, Nos. 00-C-0008, 00-C-0009, 99-C-0949, 2000 WL 1531916 (N. Y. PSC, July 27, 2000). Respondent Law Offices of Curtis V. Trinko, LLP, a New York City law firm, was a local telephone service customer of AT&T. The day after Verizon entered its consent decree with the FCC, respondent filed a complaint in the District Court for the Southern District of New York, on behalf of itself and a class of similarly situated customers. See App. 12-33. The complaint, as later amended, id., at 34-50, alleged that Verizon had filled rivals’ orders on a discriminatory basis as part of an anticompetitive scheme to discourage customers from becoming or remaining customers of competitive LECs, thus impeding the competitive LECs’ ability to enter and compete in the market for local telephone service. See, e.g., id., at 34-35, 46-47, ¶¶1, 2, 52, 54. According to the complaint, Verizon “has filled orders of [competitive LEC] customers after filling those for its own local phone service, has failed to fill in a timely manner, or not at all, a substantial number of orders for [competitive LEC] customers . .. , and has systematically failed to inform [competitive LECs] of the status of their customers’ orders.” Id., at 39, ¶ 21. The complaint set forth a single example of the alleged “failure to provide adequate access to [competitive LECs],” namely, the OSS failure that resulted in the FCC consent decree and PSC orders. Id., at 40, ¶ 22. It asserted that the result of Verizon’s improper “behavior with respect to providing access to its local loop” was to “deter potential customers [of rivals] from switching.” Id., at 35, 47, ¶¶ 2, 67. The complaint sought damages and injunctive relief for violation of § 2 of the Sherman Act, 15 U. S. C. § 2, pursuant to the remedy provisions of §§ 4 and 16 of the Clayton Act, 38 Stat. 731, as amended, 15 U. S. C. §§ 15, 26. The complaint also alleged violations of the 1996 Act, § 202(a) of the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U. S. C. § 151 et seq., and state law. The District Court dismissed the complaint in its entirety. As to the antitrust portion, it concluded that respondent’s allegations of deficient assistance to rivals failed to satisfy the requirements of § 2. The Court of Appeals for the Second Circuit reinstated the complaint in part, including the antitrust claim. 305 F. 3d 89, 113 (2002). We granted certiorari, limited to the question whether the Court of Appeals erred in reversing the District Court’s dismissal of respondent’s antitrust claims. 538 U. S. 905 (2003). II To decide this case, we must first determine what effect (if any) the 1996 Act has upon the application of traditional antitrust principles. The Act imposes a large number of duties upon incumbent LECs — above and beyond those basic responsibilities it imposes upon all carriers, such as assuring number portability and providing access to rights-of-way, see 47 U. S. C. §§ 261(b)(2), (4). Under the sharing duties of § 261(c), incumbent LECs are required to offer three kinds of access. Already noted, and perhaps most intrusive, is the duty to offer access to UNEs on “just, reasonable, and nondiscriminatory” terms, § 251(c)(3), a phrase that the FCC has interpreted to mean a price reflecting long-run incremental cost. See Verizon Communications Inc. v. FCC, 535 U. S., at 495-496. A rival can interconnect its own facilities with those of the incumbent LEC, or it can simply purchase services at wholesale from the incumbent and resell them to consumers. See §§ 251(c)(2), (4). The Act also imposes upon incumbents the duty to allow physical “collocation” — that is, to permit a competitor to locate and install its equipment on the incumbent’s premises — which makes feasible interconnection and access to UNEs. See § 251(c)(6). That Congress created these duties, however, does not automatically lead to the conclusion that they can be enforced by means of an antitrust claim. Indeed, a detailed regulatory scheme such as that created by the 1996 Act ordinarily raises the question whether the regulated entities are not shielded from antitrust scrutiny altogether by the doctrine of implied immunity. See, e. g., United States v. National Assn. of Securities Dealers, Inc., 422 U. S. 694 (1975); Gordon v. New York. Stock Exchange, Inc., 422 U. S. 659 (1975). In some respects the enforcement scheme set up by the 1996 Act is a good candidate for implication of antitrust immunity, to avoid the real possibility of judgments conflicting with the agency’s regulatory scheme “that might be voiced by courts exercising jurisdiction under the antitrust laws.” United States v. National Assn. of Securities Dealers, Inc., supra, at 734. Congress, however, precluded that interpretation. Section 601(b)(1) of the 1996 Act is an antitrust-specific saving clause providing that “nothing in this Act or the amendments made by this Act shall be construed to modify, impair, or supersede the applicability of any of the antitrust laws.” 110 Stat. 143, 47 U. S. C. § 152, note. This bars a finding of implied immunity. As the FCC has put the point, the saving clause preserves those “claims that satisfy established antitrust standards.” Brief for United States and the Federal Communications Commission as Amici Curiae Supporting Neither Party in No. 02-7057, Covad Communications Co. v. Bell Atlantic Corp. (CADC), p. 8. But just as the 1996 Act preserves claims that satisfy existing antitrust standards, it does not create new claims that go beyond existing antitrust standards; that would be equally inconsistent with the saving clause’s mandate that nothing in the Act “modify, impair, or supersede the applicability” of the antitrust laws. We turn, then, to whether the activity of which respondent complains violates pre-existing antitrust standards. Ill The complaint alleges that Verizon denied interconnection services to rivals in order to limit entry. If that allegation states an antitrust claim at all, it does so under §2 of the Sherman Act, 15 U. S. C. § 2, which declares that a firm shall not “monopolize” or “attempt to monopolize.” Ibid. It is settled law that this offense requires, in addition to the possession of monopoly power in the relevant market, “the willful acquisition or maintenance of that 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). The mere possession of monopoly power, and the concomitant charging of monopoly prices, is not only not unlawful;.it is an important element of the free-market system. The opportunity to charge monopoly prices — at least for a short period— is what attracts “business acumen” in the first place; it induces risk taking that produces innovation and economic growth. To safeguard the incentive to innovate, the possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive conduct. Firms may acquire monopoly power by establishing an infrastructure that renders them uniquely suited to serve their customers. Compelling such firms to share the source of their advantage is in some tension with the underlying purpose of antitrust law, since it may lessen the incentive for the monopolist, the rival, or both to invest in those economically beneficial facilities. Enforced sharing also requires antitrust courts to act as central planners, identifying the proper price, quantity, and other terms of dealing — a role for which they are ill suited. Moreover, compelling negotiation between competitors may facilitate the supreme evil of antitrust: collusion. Thus, as a general matter, the Sherman Act “does not restrict the long recognized right of [a] trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.” United States v. Colgate & Co., 250 U. S. 300, 307 (1919). However, “[t]he high value that we have placed on the right to refuse to deal with other firms does not mean that the right is unqualified.” Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U. S. 585, 601 (1985). Under certain circumstances, a refusal to cooperate with rivals can constitute anticompetitive conduct and violate § 2. We have been very cautious in recognizing such exceptions, because of the uncertain virtue of forced sharing and the difficulty of identifying and remedying anticompetitive conduct by a single firm. The question before us today is whether the allegations of respondent’s complaint fit within existing exceptions or provide a basis, under traditional antitrust principles, for recognizing a new one. The leading case for § 2 liability based on refusal to cooperate with a rival, and the case upon which respondent understandably places greatest reliance, is Aspen Skiing, supra. The Aspen ski area consisted of four mountain areas. The defendant, who owned three of those areas, and the plaintiff, who owned the fourth, had cooperated for years in the issuance of a joint, multiple-day, áll-area ski ticket. After repeatedly demanding an increased share of the proceeds, the defendant canceled the joint ticket. The plaintiff, concerned that skiers would bypass its mountain without some joint offering, tried a variety of increasingly desperate measures to re-create the joint ticket, even to the point of in effect offering to buy the defendant’s tickets at retail price. Id., at 593-594. The defendant refused even that. We upheld a jury verdict for the plaintiff, reasoning that “[t]he jury may well have concluded that [the defendant] elected to forgo these short-run benefits because it was more interested in reducing competition . . . over the long run by harming its smaller competitor.” Id., at 608. Aspen Skiing is at or near the outer boundary of § 2 liability. The Court there found significance in the defendant’s decision to cease participation in a cooperative venture. See id., at 608, 610-611. The unilateral termination of a voluntary (and thus presumably profitable) course of dealing suggested a willingness to forsake short-term profits to achieve an anticompetitive end. Ibid. Similarly, the defendant’s unwillingness to renew the ticket even if compensated at retail price revealed a distinctly anticompetitive bent. The refusal to deal alleged in the present case does not fit within the limited exception recognized in Aspen Skiing. The complaint does not allege that Verizon voluntarily engaged in a course of dealing with its rivals, or would ever have done so absent statutory compulsion. Here, therefore, the defendant’s prior conduct sheds no light upon the motivation of its refusal to deal — upon whether its regulatory lapses were prompted not by competitive zeal but by anticompetitive malice. The contrast between the cases is heightened by the difference in pricing behavior. In Aspen Skiing, the defendant turned down a proposal to sell at its own retail price, suggesting a calculation that its future monopoly retail price would be higher. Verizon’s reluctance to interconnect at the cost-based rate of compensation available under § 251(c)(3) tells us nothing about dreams of monopoly. The specific nature of what the 1996 Act compels makes this case different from Aspen Skiing in a more fundamental way. In Aspen Skiing, what the defendant refused to provide to its competitor was a product that it already sold at retail — to oversimplify slightly, lift tickets representing a bundle of services to skiers. Similarly, in Otter Tail Power Co. v. United States, 410 U. S. 366 (1973), another case relied upon by respondent, the defendant was already in the business of providing a service to certain customers (power transmission over its network), and refused to provide the same service to certain other customers. Id:, at 370-371, 377-378. In the present case, by contrast, the services allegedly withheld are not otherwise marketed or available to the public. The sharing obligation imposed by the 1996 Act created “something brand new” — “the wholesale market for leasing network elements.” Verizon Communications Inc. v. FCC, 535 U. S., at 528. The unbundled elements offered pursuant to § 251(c)(3) exist only deep within the bowels of Verizon; they are brought out on compulsion of the 1996 Act and offered not to consumers but to rivals, and at considerable expense and effort. New systems must be designed and implemented simply to make that access possible — indeed, it is the failure of one of those systems that prompted the present complaint. We conclude that Verizon’s alleged insufficient assistance in the provision of service to rivals is not a recognized antitrust claim under this Court’s existing refusal-to-deal precedents. This conclusion would be unchanged even if we considered to be established law the “essential facilities” doctrine crafted by some lower courts, under which the Court of Appeals concluded respondent’s allegations might state a claim. See generally Areeda, Essential Facilities: An Epithet in Need of Limiting Principles, 58 Antitrust L. J. 841 (1989). We have never recognized such a doctrine, see Aspen Skiing Co., 472 U. S., at 611, n. 44; AT&T Corp. v. Iowa Utilities Bd., 525 U. S., at 428 (opinion of Breyer, J.), and we find no need either to recognize it or to repudiate it here. It suffices for present purposes to note that the indispensable requirement for invoking the doctrine is the unavailability of access to the “essential facilities”; where access exists, the doctrine serves no purpose. Thus, it is said that “essential facility claims should ... be denied where a state or federal agency has effective power to compel sharing and to regulate its scope and terms.” P. Areeda & H. Ho-venkamp, Antitrust Law, p. 150, ¶ 773e (2003 Supp.). Respondent believes that the existence of sharing duties under the 1996 Act supports its case. We think the opposite: The 1996 Act’s extensive provision for access makes it unnecessary to impose a judicial doctrine of forced access. To the extent respondent’s “essential facilities” argument is distinct from its general § 2 argument, we reject it. IV Finally, we do not believe that traditional antitrust principles justify adding the present case to the few existing exceptions from the proposition that there is no duty to aid competitors. Antitrust analysis must always be attuned to the particular structure and circumstances of the índústry at issue. Part of that attention to economic context is an awareness of the significance of regulation. As we have noted, “careful account must be taken of the pervasive federal and state regulation characteristic of the industry.” United States v. Citizens & Southern Nat. Bank, 422 U. S. 86, 91 (1975); see also IA P. Areeda & H. Hovenkamp, Antitrust Law, p. 12, ¶ 240c3 (2d ed. 2000). “[Antitrust analysis must sensitively recognize and reflect the distinctive economic and legal setting of the regulated industry to which it applies.” Concord v. Boston Edison Co., 915 F. 2d 17, 22 (CA1 1990) (Breyer, C. J.) (internal quotation marks omitted). One factor of particular importance is the existence of a regulatory structure designed to deter and remedy anticom-petitive harm. Where such a structure exists, the additional benefit to competition provided by antitrust enforcement will tend to be small, and it will be less plausible that the antitrust laws contemplate such additional scrutiny. Where, by contrast, “[t]here is nothing built into the regulatory scheme which performs the antitrust function,” Silver v. New York Stock Exchange, 373 U. S. 341, 358 (1963), the benefits of antitrust are worth its sometimes considerable disadvantages. Just as regulatory context may in other cases serve as a basis for implied immunity, see, e. g., United States v. National Assn, of Securities Dealers, Inc., 422 U. S., at 730-735, it may- also be a consideration in deciding whether to recognize an expansion of the contours of §2. The regulatory framework that exists in this case demonstrates how, in certain circumstances, “regulation significantly diminishes the likelihood of major antitrust harm.” Concord v. Boston Edison Co., supra, at 25. Consider, for example, the statutory restrictions upon Verizon’s entry into the potentially lucrative market for long-distance service. To be allowed to enter the long-distance market in the first place, an incumbent LEC must be on good behavior in its local market. Authorization by the FCC requires state-by-state satisfaction of §271’s competitive checklist, which as we have noted includes the nondiscriminatory provision of access to UNEs. Section 271 applications to provide long-distance service have now been approved for incumbent LECs in 47 States and the District of Columbia. See FCC Authorizes SBC to Provide Long Distance Service in Illinois, Indiana, Ohio and Wisconsin (Oct. 15, 2003), http://hraunfoss. fcc.gov/edocs_ public/attachmatch/DOC-239978Al.pdf. The FCC’s § 271 authorization order for Verizon to provide long-distance service in New York discussed at great length Verizon’s commitments to provide access to UNEs, including the provision of OSS. In re Application by Bell Atlantic New York for Authorization Under Section 271 of the Communications Act To Provide In-Region, InterLATA Service in the State of New York, 15 FCC Red. 3953, 3989-4077, ¶¶ 82-228 (1999) (Memorandum Opinion and Order) (hereinafter In re Application). Those commitments are enforceable by the FCC through continuing oversight; a failure to meet an authorization condition can result in an order that the deficiency be corrected, in the imposition of penalties, or in the suspension or revocation of long-distance approval. See 47 U. S. C. § 271(d)(6)(A). Verizon also subjected itself to oversight by the PSC under a so-called “Performance Assurance Plan” (PAP). See In re New York Telephone Co., 197 P. U. R. 4th 266, 280-281 (N. Y. PSC, 1999) (Order Adopting the Amended PAP). The PAP, which by its terms became binding upon FCC approval, provides specific financial penalties in the event of Verizon’s failure to achieve detailed performance requirements. The FCC described Verizon’s having entered into a PAP as a significant factor in its § 271 authorization, because that provided “a strong financial incentive for post-entry compliance with the section 271 checklist,” and prevented “‘backsliding.’” In re Application 3958-3959, ¶¶8, 12. The regulatory response to the OSS failure complained of in respondent’s suit provides a vivid example of how the regulatory regime operates. When several competitive LECs complained about deficiencies in Verizon’s servicing of orders, the FCC and PSC responded. The FCC soon concluded that Verizon was in breach of its sharing duties under § 251(c), imposed a substantial fine, and set up sophisticated measurements to gauge remediation, with weekly reporting requirements and specific penalties for failure. The PSC found Verizon in violation of the PAP even earlier, and imposed additional financial penalties and measurements with daily reporting requirements. In short, the regime was an effective steward of the antitrust function. Against the slight benefits of antitrust intervention here, we must weigh a realistic assessment of its costs. Under the best of circumstances, applying the requirements of §2 “can be difficult” because “the means of illicit exclusion, like the means of legitimate competition, are myriad.” United States v. Microsoft Corp., 253 F. 3d 34, 58 (CADC 2001) (en banc) (per curiam). Mistaken inferences and the resulting false condemnations “are especially costly, because they chill the very conduct the antitrust laws are designed to protect.” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 594 (1986). The cost of false positives counsels against an undue expansion of §2 liability. One false-positive risk is that an incumbent LEC’s failure to provide a service with sufficient alacrity might have nothing to do with exclusion. Allegations of violations of § 251(c)(3) duties are difficult for antitrust courts to evaluate, not only because they are highly technical, but also because they are likely to be extremely numerous, given the incessant, complex, .and constantly changing interaction of competitive and incumbent LECs implementing the sharing and interconnection obligations. Amici States have filed a brief asserting that competitive LECs are threatened with “death by a thousand cuts,” Brief for New York et al. as Amici Curiae 10 (internal quotation marks omitted) — the identification of which would surely be a daunting task for a generalist antitrust court. Judicial oversight under the Sherman Act would seem destined to distort investment and lead to a new layer of interminable litigation, atop the variety of litigation routes already available to and actively pursued by competitive LECs. Even if the problem of false positives did not exist, conduct consisting of anticompetitive violations of §251 may be, as we have concluded with respect to above-cost predatory pricing schemes, “beyond the practical ability of a judicial tribunal to control.” Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U. S. 209, 223 (1993). Effective remediation of violations of regulatory sharing requirements will ordinarily require continuing supervision of a highly detailed decree. We think that Professor Areeda got it exactly right: “No court should impose a duty to deal that it cannot explain or adequately and reasonably supervise. The problem should be deemed irremedia[ble] by antitrust law when compulsory access requires the court to assume the day-to-day controls characteristic of a regulatory agency.” Areeda, 58 Antitrust L. J., at 853. In this case, respondent has requested an equitable decree to “ [preliminarily and permanently enjoi[n] [Verizon] from providing access to the local loop market... to [rivals] on terms and conditions that are not as favorable” as those that Verizon enjoys. App. 49-50. An antitrust court is unlikely to be an effective day-to-day enforcer of these detailed sharing obligations. * * * The 1996 Act is, in an important respect, much more ambitious than the antitrust laws. It attempts “to eliminate the monopolies enjoyed by the inheritors of AT&T’s local franchises.” Verizon Communications Inc. v. FCC, 535 U. S., at 476 (emphasis added). Section 2 of the Sherman Act, by contrast, seeks merely to prevent unlawful monopolization. It would be a serious mistake to conflate the two goals. The Sherman Act is indeed the “Magna Carta of free enterprise,” United States v. Topco Associates, Inc., 405 U. S. 506, 610 (1972), but it does not give judges carte blanche to insist that a monopolist alter its way of doing business whenever some other approach might yield greater competition. We con-dude that respondent’s complaint fails to state a claim under the Sherman Act. Accordingly, 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. In 1996, NYNEX was the incumbent LEC for New York State. NYNEX subsequently merged with Bell Atlantic Corporation, and the merged entity retained the Bell Atlantic name; a further merger produced Verizon. We use “Verizon” to refer to NYNEX and Bell Atlantic as well. Order Directing Improvements To Wholesale Service Performance, MCI WorldCom, Inc. v. Bell Atlantic-New York, Nos. 00-C-0008, 00-C-0009, 2000 WL 363378 (N. Y. PSC, Feb. 11, 2000); Order Directing Market Adjustments and Amending Performance Assurance Plan, MCI WorldCom, Inc. v. Bell Atlantic-New York, Nos. 00-C-0008, 00-C-0009, 99-C-0949, 2000 WL 517633 (N. Y. PSC, Mar. 23, 2000); Order Addressing OSS Issues, MCI WorldCom, Inc. v. Bell Atlantic-New York, Nos. 00-C-0008, 00-C-0009, 99-C-0949, 2000 WL 1531916 (N. Y. PSC, July 27, 2000); In re Bell Atlantic-New York Authorization Under Section 271 of the Communications Act to Provide In-Region, InterLATA Service In the State of New York, 15 FCC Red. 5413 (2000) (Order); id., at 5415 (Consent Decree). Respondent also relies upon United States v. Terminal Railroad Assn, of St. Louis, 224 U. S. 383 (1912), and Associated Press v. United States, 326 U. S. 1 (1945). These eases involved concerted action, which presents greater anticompetitive concerns and is amenable to a remedy that does not require judicial estimation of free-market forces: simply requiring that the outsider be granted nondiscriminatory admission to the club. The Court of Appeals also thought that respondent’s complaint might state a claim under a “monopoly leveraging” theory (a theory barely discussed by respondent, see Brief for Respondent 24, n. 10). We disagree. To the extent the Court of Appeals dispensed with a requirement that there be a “dangerous probability of success” in monopolizing a second market, it erred, Spectrum Sports, Inc. v. McQuillan, 506 U. S. 447, 459 (1993). In any event, leveraging presupposes anticompetitive conduct, which in this case could only be the refusal-to-deal claim we have rejected. Our disposition makes it unnecessary to consider petitioner’s alternative contention that respondent lacks antitrust standing. See Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 97, and n. 2 (1998); National Railroad Passenger Corporation v. National Assn. of Railroad Passengers, 414 U. S. 453, 456 (1974). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Chief Justice Rehnquist announced the judgment of the Court and delivered the opinion of the Court with respect to Part I, an opinion with respect to Part II, in which Justice White, Justice Blackmun, and Justice O’Con-nor join, and an opinion with respect to Part III, in which Justice Kennedy joins. Respondent, Joseph Patrick Doherty, entered this country illegally in 1982. After more than eight years of proceedings concerning Doherty’s status in the United States, the question presented here is whether the Attorney General abused his discretion in refusing to reopen the deportation proceedings against respondent to allow consideration of respondent’s claims for asylum and withholding of deportation which he had earlier withdrawn. We conclude that the Attorney General did not abuse the broad discretion vested in him by the applicable regulations. Respondent is a native of Northern Ireland and a citizen of both Ireland and the United Kingdom. In May 1980, he and fellow members of the Provisional Irish Republican Army ambushed a car containing members of the British Army and killed British Army Captain Herbert Richard Westmacott. He was tried for the murder of Westmacott in Northern Ireland. Before the court returned a verdict, he escaped from the maximum security prison where he was held; the court found him guilty in absentia of murder and related charges and sentenced him to life imprisonment. In 1982, respondent surreptitiously entered the United States under an alias. In June 1983, he was located by the Immigration and Naturalization Service (INS), which thereupon began deportation proceedings against him. Respondent applied for asylum under §208 of the Immigration and Nationality Act, as added by the Refugee Act of 1980, 94 Stat. 105, 8 U. S. C. § 1158. The immigration proceedings were suspended to allow completion of extradition proceedings, which were initiated by the United States at the request of the United Kingdom. In December 1984, United States District Judge Sprizzo, acting as an Extradition Magistrate under 18 U. S. C. § 3184, held that respondent was not extraditable because his crimes fell into the political offenses exception to the extradition treaty between the United States and the United Kingdom. In re Requested Extradition of Doherty, 599 F. Supp. 270, 272 (SDNY 1984). The attempts of the United States to attack this conclusion collaterally were rebuffed. United States v. Doherty, 615 F. Supp. 755 (SDNY 1985), aff’d, 786 F. 2d 491 (CA2 1986). When the extradition proceedings concluded, the deportation proceedings against respondent resumed. On September 12, 1986, at a hearing before the Immigration Judge, respondent conceded deportability and designated Ireland as the country to which he be deported pursuant to 8 U. S. C. § 1253(a). In conjunction with this designation, respondent withdrew his application for asylum and withholding of deportation. The INS unsuccessfully challenged respondent’s designation on the basis that Doherty’s deportation to Ireland would, in the language of § 1253(a), “be prejudicial to the interests of the United States.” The Immigration Judge found that the INS had produced no evidence to support its objection to the designation and ordered that respondent be deported to Ireland. App. to Pet. for Cert. 158a. On March 11, 1987, the Board of Immigration Appeals (BIA) affirmed the deportation order, concluding that the INS had never before rejected a deportee’s designation and that rejection of a deportee’s country of designation is improper “in the absence of clear evidence to support that conclusion.” Id., at 155a. The INS appealed the BIA’s determination to the Attorney General pursuant to 8 CFR §3.1(h)(iii) (1987). While the order to deport respondent to Ireland was being reviewed by the Attorney General, respondent filed a motion to reopen his deportation proceedings on the basis that the Irish Extradition Act, implemented by Ireland in December 1987, constituted new evidence requiring that his claims for withholding of deportation and asylum now be reopened. In June 1988, Attorney General Meese reversed the BIA and ordered respondent deported to the United Kingdom. Respondent’s designation was rejected by the Attorney General on the basis that respondent committed a serious crime in the United Kingdom and therefore to deport respondent to any country other than the United Kingdom to serve his sentence would harm the interests of the United States. The Attorney General remanded respondent’s motion to reopen for consideration by the BIA. The BIA granted respondent’s motion to reopen, concluding that the 1987 Irish Extradition Act was a circumstance that respondent could not have been expected to anticipate, and that the result of his designation would now leave him to be extradited from Ireland to the United Kingdom, where he feared persecution. The BIA’s decision to reopen was appealed by the INS and was reversed by Attorney General Thornburgh who found three independent grounds for denying Doherty’s motion to reopen. The Court of Appeals for the Second Circuit reviewed both the order of Attorney General Meese which denied respondent’s designation of Ireland as the country of deportation and Attorney General Thorn-burgh’s order denying respondent’s motion to reopen his deportation proceedings. It affirmed the Meese order, but by a divided vote reversed the Thornburgh order. Doherty v. United States Dept. of Justice, INS, 908 F. 2d 1108 (1990). Attorney General Thornburgh had abused his discretion in denying the motion to reopen, according to the Court of Appeals, because he had overturned the BIA’s finding that respondent had produced new material evidence under an incorrect legal standard. The passing of the 1987 Irish Extradition Act in conjunction with Attorney General Meese’s denial of Ireland as Doherty’s country of deportation was new evidence, which, according to the Court of Appeals, entitled Doherty to have his deportation proceedings reopened. The Court of Appeals also held that Attorney General Thornburgh had erred in determining, on a motion for reopening, that respondent was not entitled to the ultimate relief requested. Citing this Court’s decision in INS v. Abudu, 485 U. S. 94 (1988), the Court of Appeals held that such a determination could not be made for the mandatory relief of withholding of deportation, and that once an alien establishes a prima facie case for withholding of deportation and brings new evidence, the Attorney General is without discretion to deny the motion to reopen. In addition, the Court of Appeals held that the Attorney General had abused his discretion by relying on foreign policy concerns in denying respondent’s motion to reopen his claim for asylum. After examining the legislative history of § 208 of the Immigration and Nationality Act, the Court of Appeals concluded that Congress intended foreign policy interests to play no role in asylum determinations. The Attorney General had abused his discretion “in denying Doherty’s application for reasons that congress sought to eliminate from asylum cases . . ..” 908 F. 2d, at 1121. We granted certiorari, 498 U. S. 1081 (1991), and now decide that the Court of Appeals placed a much too narrow limit on the authority of the Attorney General to deny a motion to reopen deportation proceedings. The Attorney General based his decision to deny respondent’s motion to reopen on three independent grounds. First, he concluded that respondent had not presented new evidence warranting reopening; second, he found that respondent had waived his claims to asylum and withholding of deportation by withdrawing them at his deportation hearing in September 1986; and, third, he concluded that the motion to reopen was properly denied because Doherty’s involvement in serious nonpolitical crimes in Northern Ireland made him statutorily ineligible for withholding of deportation, as well as undeserving of the discretionary relief of asylum. Because we conclude that the Attorney General did not abuse his discretion in denying the motion to reopen either on the first or second of these grounds, we reverse the Court of Appeals’ decision, and need not reach the third ground for denial of reopening relied upon by the Attorney General. I This is the fifth case in the last decade in which we have dealt with the authority of the Attorney General and the BIA to deny a motion to reopen deportation proceedings. These cases establish several propositions. There is no statutory provision for reopening of a deportation proceeding, and the authority for such motions derives solely from regulations promulgated by the Attorney General. INS v. Rios-Pineda, 471 U. S. 444, 446 (1985). The regulation with which we deal here, 8 CFR § 3.2 (1987), is couched solely in negative terms; it requires that under certain circumstances a motion to reopen be denied, but does not specify the conditions under which it shall be granted: “Reopening or reconsideration. “(C) there are serious reasons for considering that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States . .. .” “. . . Motions to reopen in deportation proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing . .. The granting of a motion to reopen is thus discretionary, INS v. Phinpathya, 464 U. S. 183, 188, n. 6 (1984), and the Attorney General has “broad discretion” to grant or deny such motions, Rios-Pineda, supra, at 449. Motions for reopening of immigration proceedings are disfavored for the same reasons as are petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. INS v. Abudu, 485 U. S., at 107-108. This is especially true in a deportation proceeding, where, as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States. See INS v. Rios-Pineda, supra, at 450. In Abudu, supra, we stated that there were “at least” three independent grounds on which the BIA might deny a motion to reopen — failure to establish a prima facie case for the relief sought, failure to introduce previously unavailable, material evidence, and a determination that even if these requirements were satisfied, the movant would not be entitled to the discretionary grant of relief which he sought. Abudu, supra, at 104-105. When denial of a motion to reopen is based on the last two of these three grounds, abuse of discretion is the proper standard of review. 485 U. S., at 105. We also noted in Abudu that the abuse-of-discretion standard applies to motions to reopen “regardless of the underlying basis of the alien’s request [for relief].” Id., at 99, n. 3. In Abudu itself, the alien’s claim for asylum was made after an order of deportation was issued, and therefore by operation of the regulations, the alien had brought a claim for withholding of deportation as well. Ibid. The discretion which we discussed in Abudu, therefore, applies equally to motions to reopen claims for asylum and claims for withholding of deportation. We think that the proper application of these principles leads inexorably to the conclusion that the Attorney General did not abuse his discretion in denying reopening either on the basis that respondent failed to adduce new material evidence or on the basis that respondent failed to satisfactorily explain his previous withdrawal of these claims. II The Attorney General determined that neither the denial of respondent's designation of Ireland as the country of deportation, nor the change in Irish extradition law, qualified as new material evidence to support reopening of respondent's deportation proceedings. He explained that since the very same statute which allows the alien to designate a country for deportation also authorizes the Attorney General to oppose that designation, the eventual denial of respondent's designation could not be a "new fact" which would support reopening. He stated that "it is inconceivable that anyone represented by counsel could not know that there always existed a risk that the Attorney General would deny respondent's deportation to Ireland to protect the interests of the United States." App. to Pet, for Cert. 66a. This conclusion was based on 8 U. S. C. § 1253(a), which provides that the Attorney General shall direct the alien be deported to the country designated by the alien “if that country is willing to accept him into its territory, unless the Attorney General, in his discretion, concludes that deportation to such country would be prejudicial to the interests of the United States.” In addition, in this case, the INS had objected to respondent’s designation at the very hearing at which his selection of Ireland as the country of deportation was made. The Attorney General also concluded that his rejection of the designated country was not a “fact,” reasoning that “[t]he ultimate decision in an administrative process cannot itself constitute ‘new’ evidence to justify reopening. If an adverse decision were sufficient, there could never be finality in the process.” App. to Pet. for Cert. 67a. He therefore concluded that the Government’s successful opposition to respondent’s designation was neither “new” nor “evidence.” The Attorney General also decided that Ireland’s implementation of its 1987 Extradition Act was neither relevant nor new. By the time he issued his denial of the motion to reopen, the question was whether respondent should be deported to the United Kingdom. And the treaty upon which the Irish Extradition Act was based had been signed six months before respondent withdrew his asylum and withholding of deportation claims in 1986. He also noted that a change in law ordinarily does not support a motion to reopen unless the change pertains to the rules of the proceeding at which deportation was ordered. The Court of Appeals took the view that the Attorney General’s insistence that the grounds adduced for reopening have been “unforeseeable” was supported by “[njeither the regulations nor the applicable decisional law.” 908 F. 2d, at 1115. But the regulation here in question, 8 CFR §3.2 (1987), provides in part that motions to reopen in deportation proceedings “shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing . . . .” The Court of Appeals seized upon a sentence in our opinion in Abudu stating that the issue in such a proceeding is whether the alien has “reasonably explained his failure to apply for asylum initially” and has indeed offered “previously unavailable, material evidence,” Abudu, 485 U. S., at 104-105, as negating a requirement of unforeseeability. But this sentence, we think, cannot bear that construction, particularly when the same opinion sets out verbatim the applicable regulation quoted above. It is not at all uncommon to require that motions to reopen proceedings be based on matter which could not reasonably have been previously adduced; see, e.g., Fed. Rule Civ. Proc. 60(b)(2) (“newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b) . . .”). We hold, for the reasons stated in the opinion of the Attorney General, that it was well within his broad discretion in considering motions to reopen to decide that the material adduced by respondent could have been foreseen or anticipated at the time of the earlier proceeding. The alien, as we discuss more fully in Part III, infra, is allowed to plead inconsistently in the alternative in the original proceeding and thereby raise any claims that are foreseeable at that time. The Court of Appeals also took the view that since the BIA had granted the motion to reopen, the Attorney General was in some way limited in his authority to overturn that decision. But the BIA is simply a regulatory creature of the Attorney General, to which he has delegated much of his authority under the applicable statutes. He is the final administrative authority in construing the regulations, and in deciding questions under them. See INS v. Jong Ha Wang, 450 U. S. 139, 140 (1981) (per curiam). The mere fact that he disagrees with a conclusion of the BIA in construing or applying a regulation cannot support a conclusion that he abused his discretion. III The Attorney General found, as an independent basis for denying reopening, that respondent had waived his claims for relief by withdrawing them at the first hearing to obtain a tactical advantage. We disagree with the Court of Appeals’ rejection of this reason to deny reopening. 908 F. 2d, at 1122. The Attorney General’s reasoning as to respondent’s waiver of his claims is the functional equivalent of a conclusion under 8 CFR §208.11 (1987) that respondent has not reasonably explained his failure to pursue his asylum claim at the first hearing. In other words, the Attorney General found that withdrawing a claim for a tactical advantage is not a reasonable explanation for failing to pursue the claim at an earlier hearing. Precisely because an alien may qualify for one form of relief from deportation, but not another, the INS allows aliens to plead in the alternative in immigration proceedings. There was nothing which prevented respondent from bringing evidence in support of his asylum and withholding of deportation claims at his first deportation proceeding, in case the Attorney General did contest his designation of Ireland as the country to which he be deported. Respondent chose, however, to withdraw those claims, even when expressly questioned by the Immigration Judge. The Court of Appeals rejected this ground for the Attorney General’s denial of reopening on the ground that his reasoning was “incompatible with any motion to reopen . . . .” 908 F. 2d, at 1122. It may be that the Attorney General has adopted a narrow, rather than a broad, construction of the regulations governing reopening, but nothing in the regulations forbids such a course. The Attorney General here held that respondent’s decision to withdraw certain -daims in the initial proceedings was a “deliberate tactical decision,” and that under applicable regulations those claims could have been submitted at that time even though inconsistent with other claims made by respondent. We hold that this basis for the Attorney General’s decision was not an abuse of discretion. The judgment of the Court of Appeals is Reversed. Justice Thomas took no part in the consideration or decision of this case. Section 208 of the Immigration Act, 8 U. S. C. § 1158(a) provides, in pertinent part: “The Attorney General shall establish a procedure for an alien physically present in the United States ... to apply for asylum, and the alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee . . . .” The term “refugee” is defined by 8 U. S. C. § 1101(a)(42)(A) as “any person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to ... that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . . .” Respondent, who has been confined since his arrest by the INS, has also twice unsuccessfully filed for habeas corpus relief. Doherty v. Meese, 808 F. 2d 938 (CA2 1986); Doherty v. Thornburgh, 943 F. 2d 204 (CA2 1991). Title 8 U. S. C. § 1253(a) provides, in part: “The deportation of an alien in the United States . . . shall be directed by the Attorney General to a country promptly designated by the alien if that country is willing to accept him into its territory, unless the Attorney General, in his discretion, concludes that deportation to such country would be prejudicial to the interests of the United States.” Initially, the INS moved for reconsideration of the BIA’s March 1987 decision based on new evidence in the form of an affidavit by the Associate Attorney General. The BIA reopened the appeal but refused to remand to the Immigration Judge, instead finding that the affidavit offered by the INS was not new evidence and, in any event, did not change the BIA’s conclusion. App. to Pet. for Cert. 134a-142a. Title 8 U. S. C. § 1253(h) provides in pertinent part: “Withholding of deportation or return “(1) The Attorney General shall not deport or return any alien ... to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion. “(2) Paragraph (1) shall not apply to any alien if the Attorney General determines that— “(A) the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion; [or] This is so, in part, because every request for asylum made after institution of deportation proceedings is also considered as a request for withholding of deportation under 8 U. S. C. § 1263(h) (1988 ed. and Supp. II). 8 CFR § 208.3(b) (1983). We concluded that the BIA was within its discretion to deny respondent's motion to reopen both claims for relief because "respondent had not reasonably explained his failure to apply for asylum prior to the completion of the initial deportation proceeding," INS v. Abudu, 485 U. S., at 111, not because the alien was not entitled on the merits to the relief sought. Cf. post, at 333-334 (SCALIA, J., concurring in judgment in part and din-senting in part). At the deportation hearing, counsel for the INS stated that the INS “opposefd] the designation of the Republic of Ireland on the ground that the respondent’s deportation to the Republic of Ireland would be prejudicial to the interest of the United States” and designated the United Kingdom as “an alternate country of deportation.” App. 34. The Court of Appeals, 908 F. 2d 1108, 1115-1116 (CA2 1990), and Justice Scalia, post, at 338-339, suggest that the Attorney General’s denial of respondent’s designation of Ireland was not even foreseeable at the time of the deportation hearing. Given the statutory language of 8 U. S. C. § 1253(a) and the position taken by the INS at the deportation hearing, we find it unrealistic to assume that respondent was unaware of the possibility that his designation of Ireland might prove ineffective notwithstanding the fact that Ireland was willing to receive him. The Attorney General certainly does not abuse his discretion in failing to take such a view of the events in this case. Although 8 CFR §§208.11 and 3.2 (1987) are nominally directed respectively at motions to reopen asylum claims and withholding of deportation claims, they are often duplicative in that an offer of material evidence which was not available at the time of the hearing would, in most cases, also be an adequate explanation for failure to pursue a claim at an earlier proceeding. As we explained in INS v. Abudu, 485 U. S. 94, 99, n. 3 (1988), the “application of 8 CFR §208.11 (1987), which on its face applies only to asylum requests on reopening, will also usually be dispositive of its decision whether to reopen to permit a withholding of deportation request.” See supra, at 324. The opportunity for the alien to plead in the alternative is an ample basis for the Attorney General to find, without abusing his discretion in a situation such as the present one, that the failure of the alien to so plead has not been reasonably explained. Indeed, in Abudu, supra, the alien had moved to reopen his deportation proceedings to pursue claims for asylum and withholding of deportation based on persecution he feared in his home country of Ghana in the event that his designation of England as the country of deportation proved ineffective. 485 U. S., at 97. The Immigration Judge did prevent the INS from presenting evidence of additional grounds on which respondent could be deported once respondent had conceded deportability, but there is no indication that had respondent not withdrawn his claims at the September 12, 1986, proceeding, the Immigration Judge would not have allowed respondent to bring evidence in support of his application for asylum and withholding of deportation. App. to Pet. for Cert. 157a. At the September 12, 1986, hearing, the Immigration Judge asked respondent’s counsel: “I just want to be sure ... there won’t be any application for political asylum and/or withholding of deportation, correct?” to which respondent’s counsel replied: “That is correct.” The Immigration Judge asked again: “In other words, there is no application for relief from deportation that you will be making?” to which the response from counsel was again in the affirmative. App. 32. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Me. Justice Douglas delivered the opinion of the Court. We granted certiorari in these cases to determine whether § 441 of the Tax Reform Act of 1969, 26 U. S. C. § 167 (l), circumscribes the authority of the Federal Power Commission under the Natural Gas Act, 52 Stat. 821, as amended, 15 U. S. C. § 717 et seg., to permit a regulated utility to change its method of computing depreciation for ratemaking purposes from “flow-through” to “normalization” with respect to property acquired prior to 1970 as well as “replacement” property. Since the resolution of this issue depends largely on the background and history of § 441 and the Commission’s regulatory powers, a brief review is in order at the outset. Section 167 of the Internal Revenue Code authorized taxpayers, including regulated utilities, to use accelerated or liberalized depreciation in calculating their federal income taxes. The Commission retained jurisdiction to prescribe the depreciation method to be used by regulated utilities in calculating their federal income tax expense for ratemaking purposes. Initially, the Commission required utilities to compute their cost of service, which includes federal income taxes, as if they were using straight-line depreciation. This method, referred to as “normalization,” was designed to avoid giving the present customers of a utility the benefits of tax deferral attributable to accelerated depreciation. If a utility used accelerated depreciation in determining its actual tax liability, the difference between the taxes actually paid and the higher taxes reflected as a cost of service for ratemaking purposes was required to be placed in a deferred tax reserve account. See Amere Gas Utilities Co., 15 F. P. C. 760. It soon became apparent that accelerated depreciation in practice resulted in permanent tax savings. Because most utilities had growing or at least stable plant investments, the depreciation allowances from additional and replacement equipment offset the declining depreciation allowance on existing property. Accordingly, the Commission required utilities using accelerated depreciation for tax purposes to use the same method for calculating their cost of service and, thus, to “flow through” any tax savings to their customers. Alabama-Tennessee Natural Gas Co., 31 F. P. C. 208, aff'd sub nom. Alabama-Tennessee Natural Gas Co. v. FPC, 359 F. 2d 318 (CA5). Subsequently, the Commission decided that it would impute the use of accelerated depreciation for ratemaking purposes regardless of the method used for computing actual taxes. Midwestern Gas Transmission Co., 36 F. P. C. 61, aff’d sub nom. Midwestern Gas Transmission Co. v. FPC, 388 F. 2d 444 (CA7). When the House and Senate considered tax reform legislation in 1969, both were concerned with the loss of tax revenues that stemmed from the combined effect of accelerated depreciation for computing federal taxes (leading to higher deductions) and flow-through for fixing rates (leading to lower rates and thus lower gross revenues) . Section 441 of the Tax Reform Act, which added § 167 (l) to the Internal Revenue Code, was designed in general to “freeze” existing depreciation practices. As passed by the House, § 441 would have established three rules with respect to existing depreciable property: “(1) If straight line depreciation is presently being taken, then no faster depreciation is to be permitted as to that property. “(2) If the taxpayer is taking accelerated depreciation and is 'normalizing’ its deferred taxes, then it must go to the straight line method unless it continues to normalize as to that property. “(3) If the taxpayer is taking accelerated depreciation and flowing through to its customers the benefits of the deferred taxes, then the taxpayer must continue to do so, unless the appropriate regulatory agency permits a change as to that property.” The Senate bill as passed was similar to that of the House, except that utilities on flow-through were given the right to elect within 180 days “to shift from the flow-through to the straight-line method, with or without the permission of the appropriate regulatory agency, or . . . with the permission of the regulatory agency to shift to the normalization method . This election was to apply both to new and existing property. In conference, however, it was agreed that this right of election would apply only to property acquired by the utility after 1969 to expand its facilities. Thus, as added to the Internal Revenue Code in 1969, § 167 (Z) distinguishes between two basic types of “public utility property”: “pre-1970 property,” which is property acquired by the taxpayer before January 1, 1970 (§ 167 (l)(3)(B)), and all other property, referred to as “post-1969 property” (§ 167 (Z) (3) (C)). A further distinction is drawn between post-1969 property “which increases the productive or operational capacity of the taxpayer” (expansion property) and post-1969 property which merely replaces existing property (§ 167 (l) (4) (A)). With respect to pre-1970 property, a utility may use (1) straight-line depreciation, (2) the method used prior to August 1969 if it also employs normalization, or (3) accelerated depreciation with flow-through, but only if that method was used prior to August 1969 (§167 (J)(l)). With respect to post-1969 property, a utility may use (1) straight-line depreciation, (2) accelerated depreciation with normalization, or (3) accelerated depreciation with flow-through if the utility used flow-through prior to August 1969 (§ 167 (l) (2)). In addition, under § 167 (1) (4) (A), a utility may elect to abandon accelerated depreciation with flow-through with respect to post-1969 expansion property. The proceedings in issue here involve Texas Gas Transmission Corp., the operator of a major interstate pipeline system certificated by the Federal Power Commission. Although Texas Gas utilized accelerated depreciation with flow-through prior to the adoption of the Tax Reform Act, it filed a proposed rate increase with the Commission on June 27, 1969, based upon “the proposed discontinuance of the use of liberalized depreciation and the reversion to a straight-line method of tax depreciation.” After § 167 (l) was enacted, Texas Gas advised the Commission that it intended to exercise the election provided in § 167 (l) (4) (A) and sought permission to use accelerated depreciation with normalization with respect to its post-1969 expansion property. It also sought assurance, before it made the election, that it would be able to change from flow-through to straight-line or, preferably, accelerated depreciation with normalization with respect to its pre-1970 property and post-1969 replacement property. The Commission, holding that its authority “to determine whether a company may effect such a change is not diminished” under the Tax Reform Act, permitted Texas Gas to change from flow-through to normalization for ratemaking purposes. Opinion No. 578, 43 F. P. C. 824, 828, rehearing denied, 44 F. P. C. 140. The Commission reasoned that the basis of its decisions in Alabama-Tennessee and Midwestern would no longer be applicable if Texas Gas were to switch to normalization with respect to post-1969 expansion property. In that event, the tax savings resulting from the deferral attributable to accelerated depreciation would not be permanent. Rather, if Texas Gas were required to continue flow-through for all but its new expansion property, it would be faced with a steadily increasing cost of service which would necessitate repeated rate increases. Under these circumstances, the Commission concluded: “Texas Gas is correct in contending that normalization in computing the tax allowance for rate purposes with respect to its pre-1970 facilities offers more hope for stability of rates for its customers and more assurance that the company can earn its fair rate of return without future rate increases. Further benefits of normalization are that it will improve the company’s before tax coverage of interest, thereby enhancing the quality of its securities, and that it will help alleviate present day cash shortages.” Id., at 829-830. The Court of Appeals, on petitions for review, reversed the Commission’s order. 149 U. S. App. D. C. 238, 462 F. 2d 853, rehearing denied, id., at 250, 462 F. 2d, at 865. Although the Court recognized that the version of the Tax Reform Act passed by the House would have supported the Commission’s order, it held that the limited nature of the election provision as finally passed deprived the Commission of authority to permit regulated utilties to abandon flow-through with respect to their existing and replacement property. We reverse and remand to the Court of Appeals for further proceedings consistent with this opinion. The present cases concern solely the depreciation methods used by utilities in calculating their federal income tax expenses for ratemaking purposes. In § 441 of the Tax Reform Act of 1969, Congress dealt primarily with a revenue measure under the tax laws and only indirectly with the regulatory power of the Commission under the Natural Gas Act. We have had before us on numerous occasions cases arising under the Natural Gas Act. In the early case of FPC v. Hope Natural Gas Co., 320 U. S. 591, we emphasized two aspects of the power of the Commission to fix “just and reasonable” rates under 15 U. S. C. § 717. First, was the desire “to protect consumers against exploitation,” 320 U. S., at 610, and second, was the aim to promote the “financial integrity” of the natural gas companies as measured, not only by revenues sufficient to recover operating expenses and capital costs, id., at 603, but also by revenues “sufficient to assure confidence in the financial integrity of the enterprise, so as to maintain its credit and to attract capital.” Ibid. We mention those matters because (1) the treatment of depreciation bears on rates and (2) there is no indication in the legislative history of this tax measure that Congress desired to modify, as respects the precise issue involved here, the broad discretion of the Commission delineated in Hope Natural Gas and in other rate cases. Under § 4 (a) of the Natural Gas Act, 15 U. S. C. § 717c (a), all rates and charges made by a natural gas company subject to the Commission’s jurisdiction must be “just and reasonable.” Section 4 (e), 15 U. S. C. § 717c (e), sets forth the procedures whereby the Commission can determine whether a proposed rate schedule is lawful, and § 5, 15 U. S. C. § 717d, gives the Commission certain powers to fix rates and charges. Finally, under § 9 (a), 15 U. S. C. § 717h (a), the Commission may “require natural-gas companies to carry proper and adequate depreciation and amortization accounts in accordance with such rules, regulations, and forms of account as the Commission may prescribe.” In FPC v. United Gas Pipe Line Co., 386 U. S. 237, 243, the Court stated: “One of [the Commission’s] statutory duties is to determine just and reasonable rates which will be sufficient to permit the company to recover its costs of service and a reasonable return on its investment. Cost of service is therefore a major focus of inquiry. Normally included as a cost of service is a proper allowance for taxes, including federal income taxes. The determination of this allowance, as a general proposition, is obviously within the jurisdiction of the Commission.” The lower courts have allowed the Commission broad discretion in determining proper depreciation methods for ratemaking purposes. See, e. g., Alabama-Tennessee Natural Gas Co. v. FPC, 359 F. 2d 318; Midwestern Gas Transmission Co. v. FPC, 388 F. 2d 444. Section 167 (l), to be sure, does not leave this discretion untouched. For example, a utility using straight-line depreciation with respect to its pre-1970 property could not switch to accelerated depreciation, nor could a utility be required to switch to flow-through with respect to pre-1970 property. See §167(i)(l). But § 167 (l) on its face does not preclude the Commission from éxercising its statutory powers to permit a utility to abandon flow-through. Section 167(1) (1)(B) provides that “[i]n the case of any pre-1970 public utility property, the taxpayer may use the applicable 1968 method for such property if — (i) the taxpayer used a flow-through method of accounting” prior to August 1969. (Emphasis added.) The Court of Appeals, however, found error in the Commission’s action based on its detailed and considered analysis of the legislative history of § 167 (l). It concluded that “the final version of the bill limits the applicability of the right of election to post-1969 expansion (non-replacement) property alone.” 149 U. S. App. D. C., at 246, 462 F. 2d, at 861 (emphasis in original). It reasoned as follows. At the House stage the action of the Commission would have been justified to switch to normalization because, as already noted, the House Report stated: “Your committee’s bill provides that, in the case of existing property, the following rules are to apply: “(1) If straight line depreciation is presently being taken, then no faster depreciation is to be permitted as to that property. “(2) If the taxpayer is taking accelerated depreciation and is 'normalizing’ its deferred taxes, then it must go to the straight line method unless it continues to normalize as to that property. “(3) If the taxpayer is taking accelerated depreciation and flowing through to its customers the benefits of the deferred taxes, then the taxpayer must continue to do so, unless the appropriate regulatory agency permits a change as to that property.” (Emphasis added.) The word “existing” property as used in that Report included “replacement” property in the mind of the Court of Appeals. The Senate version of the bill would have permitted Texas Gas to shift from liberalized depreciation with flow-through either to straight-line depreciation or with the Commission’s approval to liberalized depreciation with normalization. 149 U. S. App. D. C., at 247, 462 F. 2d, at 862. The Court of Appeals, however, concluded that because the right of election was restricted while the bill was in conference to apply only to post-1969 expansion property, the Commission could not permit a utility to change its method with respect to existing or replacement property. Ibid. It relied on the following four paragraphs from the Conference Report. “The House bill provides that in the case of certain listed regulated industries (the furnishing or sale of . . . gas through a local distribution system, . . . and transportation of gas by pipeline) a taxpayer is not permitted to use accelerated depreciation unless it ‘normalizes’ the current income tax reduction resulting from the use of such accelerated depreciation. . . . “This rule is not to apply in the case of a taxpayer that is at present flowing through the tax reduction to earnings for purposes of computing its allowable expenses on its regulated books of account. Also, if the taxpayer is now using straight line depreciation as to any public utility property it may not change to accelerated depreciation as to that property. “The Senate amendment makes the following changes in the House bill: . . . (d) an election is permitted to be made within 180 days after the date of enactment by a company at present on flow-through to come under the rules of the bill . . . . “The conference substitute (sec. 44-1 of the substitute and sec. 167 (l) of the code) follows the Senate amendment except that the special provision referred to in (e) above is stricken and the 180-day election (item (d), above) is modified to apply to new property and not to replacement property. Even in the case of new property, however, the right to change over from the flowthrough method is to be available only to the extent the new property increases the productive or operational capacity of the company” (Emphasis added.) From these four paragraphs the Court of Appeals concluded that the second paragraph of the Conference Report prohibits Texas Gas from abandoning liberalized depreciation with flow-through and that the right of election was restricted to post-1969 expansion property only. The second paragraph, however, as we read it, when it uses the words “This rule” refers, not to the final bill, but to the initial House bill. That initial bill, as summarized in the House Report, as already noted, had somewhat different provisions for depreciation. The first paragraph of the quotation from the Conference Report in our view summarized the House’s proposed second rule. The words “This rule” in the second paragraph, therefore, refer to the House’s proposed second rule. Only the third paragraph of the excerpt reached the changes made by the Senate. Only the fourth paragraph resolved the differences between the two bills. There is nothing in either the third or the fourth paragraph to indicate that the election authorized by the Conference Report was to limit or replace the three general rules proposed by the House, the third House-proposed rule authorizing precisely what the Commission allowed in this case. The second paragraph, read in the context of the Conference Report, does not state that the Commission-lacks authority to permit a company on flow-through to abandon it with respect to existing property. It only states that a company on flow-through may remain on flow-through. Thus, it is solely a limitation on the requirement that a company must normalize if it wants to continue accelerated depreciation with respect to pre-1970 property. This is entirely consistent with the structure of § 167 (l) (1). Nor is the extension of the 180-day election to post-1969 expansion property a limiting factor. The “reasonable” allowance for depreciation of post-1969 property as used in § 167 (l)(2) includes in subparagraph (C) “the applicable 1968 method, if, with respect to its pre-1970 public utility property of the same (or similar) kind most recently placed in service, the taxpayer used a flow-through method of accounting for its July 1969 accounting period.” But § 167 (l) (4) (A) provides that where the taxpayer makes an election within the 180-day period, paragraph (2)(C) shall not apply with respect to any post-1969 public utility property “to the extent that such property constitutes property which increases the productive or operational capacity of the taxpayer” and does not represent “the replacement of existing capacity.” Thus, the Act recognizes ways for a utility to abandon flow-through with respect to existing property. A utility cannot do so on its own; the overriding authority is in the Federal Power Commission. The staff of the Joint Committee on Internal Revenue Taxation prepared a General Explanation of this tax measure in which it stated: “If the taxpayer was taking accelerated depreciation and flowing through to its customers the benefits of the deferred taxes as of August 1, 1969, then the taxpayer would continue to do so (except for a special election procedure discussed below), unless the appropriate regulatory agency permits a change as to that property.” This document goes on to state that as respects new property a utility on flow-through must remain on flow-through “unless the regulatory agency permits it to change (or unless the election below applies).” This document provides a compelling contemporary indication that the Federal Power Commission was not deprived of its authority to permit abandonment of flow-through, even though utilities had the right not to have flow-through apply to their expansion property. The Court of Appeals relied on comments both in the House and in the Senate Reports of the desire of Congress to “freeze” the current practices relating to depreciation especially as respects “the more flourishing utility industries.” As we read the Reports, the purpose was to forestall switches to faster methods of depreciation, to guard against widespread rate increases, and to avoid putting some utilities at a competitive disadvantage. But the “freeze” was not put in absolute terms. Shifts from straight-line to accelerated depreciation were outlawed, as were shifts from normalization to flow-through on existing property. We find no trace of a suggestion that the Federal Power Commission was denied authority to determine whether on particular facts the abandonment of flow-through by a utility within the parameter of the Tax Reform Act of 1969 would be in the public interest as envisaged by the Natural Gas Act, even though it might increase rates. The “freeze” certainly was designed to cover changes to faster methods of tax depreciation but not changes to slower methods of tax depreciation that the Commission might permit. The Court of Appeals sustained the Commission as respects the post-1969 expansion property of Texas Gas, and reversed it as respects the pre-1970 and post-1969 nonexpansion property. The Court of Appeals did not reach the validity of the Commission’s order, assuming the Commission was correct in its reading of the Tax Reform Act of 1969, as we think it was. The Court of Appeals did, however, state that § 167 (l) “should not be construed to prevent” the Commission from finding in “extraordinary circumstances” that consumer interests “would be furthered by permitting the abandonment of flow-through.” But it added: “It is clear, however, that such consumer interests would not be furthered by permitting Texas Gas to abandon flow-through in the circumstances presented by the case at bar.” 149 U. S. App. D. C., at 250, 462 F. 2d, at 865. The Commission in its petition for certiorari states that in connection with the main question raised it would argue, if the petition were granted, that its decision on the merits was correct in all respects. And in its brief on the merits it urges us to decide the merits. But by statute the Court of Appeals is the tribunal where review must be sought; and we remand the cases to it for proceedings consistent with this opinion. We note in closing, however, that the judgment of the Court of Appeals is reversed in toto. Its holding that the consumer interests were not furthered by the Commission's action is short of the application of the appropriate standard for review. As already noted, under Hope Natural Gas rates are “just and reasonable” only if consumer interests are protected and if the financial health of the pipeline in our economic system remains strong. Reversed and remanded. Section 167 (a) provides that “[t]here shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence)” of qualified property. Section 167 (b) defines “reasonable allowance” to include an allowance computed under the declining balance method and the sum-of-the-years-digits method, as well as the straight-line method. Under the declining-balance and sum-of-the-years-digits method, both commonly referred to as accelerated or liberalized depreciation methods, depreciation allowances in the early years are higher than under the straight-line method, but steadily decrease over the useful life of the asset. Under the straight-line method, the depreciation allowance for an asset remains equal over its useful life. Federal income taxes are properly included as an expense under the cost-of-service ratemaking utilized by the Commission in the regulation of rates for sales of natural gas subject to its jurisdiction under the Natural Gas Act, 15 U. S. C. § 717 et seq. See FPC v. United Gas Pipe Line Co., 386 U. S. 237, 243. See H. R. Rep. No. 91-413, pt. 1, pp. 131-132; S. Rep. No. 91-552, p. 172. See H. R. Rep. No. 91-413, pt. 1, pp. 132-133; S. Rep. No. 91-552, p. 172. H R. Rep. No. 91-413, pt. 1, p. 133. S. Rep. No. 91-552, p. 173. See H. R. Conf. Rep. No. 91-782, p. 313. Section 167 (l) (3) (A) provides: “The term ‘public utility property’ means property used predominantly in the trade or business of the furnishing or sale of— “(i) electrical energy, water, or sewage disposal services, “ (ii) gas or steam through a local distribution system, "(in) telephone services, or other communication services if furnished or sold by the Communications Satellite Corporation for purposes authorized by the Communications Satellite Act of 1962 (47 U. S. C. [§] 701), or “(iv) transportation of gas or steam by pipeline, “if the rates for such furnishing or sale, as the case may be, have been established or approved by a State or political subdivision thereof, by any agency or instrumentality of the United States, or by a public service or public utility commission or other similar body of any State or political subdivision thereof.” In Order No. 404, 43 F. P. C. 740, rehearing denied, 44 F. P. C. 16, the Commission announced that as a general policy it would permit utilities making the election under § 167 (l) (4) (A) to use accelerated depreciation with normalization with respect to their expansion property. The Court of Appeals, in the same decision under review here, affirmed this order. 149 U. S. App. D. C. 238, 250, 462 F. 2d 853, 865. That part of the court’s decision is not before us. The Commission’s order reads: “ (A) In the computation of its Federal Income Tax allowance for ratemaking purposes as well as for accounting purposes, Texas Gas is permitted to use liberalized depreciation with normalization with respect to its property other than that subject to election under Section 167 (l) (4) (A) of the Internal Revenue Code as amended by Section 441 of the Tax Reform Act of 1969. Such election applies to property constructed or acquired on or after January 1, 1970, to the extent it increases the productive or operational capacity of the company and does not represent the replacement of existing capacity. Texas Gas may reflect any such change in its rates, as well as any change in costs arising from its proposed election. In computing its cost-of-service for ratemaking purposes balances in Account 282 [deferred tax reserve account] should continue to be deducted from the rate base.” 43 F. P. C. 824, 831. Memphis Light, Gas & Water Division, a municipally owned distributor of natural gas and a city-gate customer of Texas Gas, and the Public Service Commission of the State of New York petitioned the Court of Appeals for review of the Commission’s Opinion No. 578. Each had filed an application for rehearing before the Commission which was denied in Opinion No. 578-A. Both the Federal Power Commission (in No. 72-486) and Texas Gas (in No. 72-488) petitioned this Court for a writ of certiorari. H. R. Rep. No. 91-413, pt. 1, p. 133. S. Rep. No. 91-552, pp. 173-174 “The [Senate] committee amendments, while in most respects the same as the House provisions, differ in one principal area. The amendments permit an election to be made within 180 days after the date of enactment of the bill for a utility covered by this provision to shift from the flow-through to the straight-line method, with or without the permission of the appropriate regulatory agency, or permit it with the permission of the regulatory agency to shift to the normalization method (that is, to come under general rules of the bill). “This election applies both as to new and existing property. . . . Since the company would no longer be permitted to use accelerated depreciation (unless the agency later permits it to normalize), the agency would not be able to impute the use of accelerated depreciation with flow-through.” (Emphasis added.) H. R. Conf. Rep. No. 91-782, pp. 312-313. H. R. Rep. No. 91-413, pt. 1, p. 133. The second rule, as noted, provided, “If the taxpayer is taking accelerated depreciation and is ‘normalizing’ its deferred taxes, then it must go to the straight line method unless it continues to normalize as to that property.” Ibid. The third rule, as noted, provided, “If the taxpayer is taking accelerated depreciation and flowing through to its customers the benefits of the deferred taxes, then the taxpayer must continue to do so, unless the appropriate regulatory agency permits a change as to that property.” Ibid. General Explanation of the Tax Reform Act of 1969, H. R. 13270, 91st Cong., p. 151. Ibid. H. R. Rep. No. 91-413, pt. 1, pp. 132-133. S. Rep. No. 91-552, p. 172 Ibid. Section 19 (b) of the Natural Gas Act, 15 U. S. C. § 717r (b), provides: “Any party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the court of appeals of the United States for any circuit wherein the natural-gas company to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia [Circuit] . . . Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Burton delivered the opinion of the Court. The question in each of these cases is whether the Fair Labor Standards Act of 1938, as amended, applies to a person employed by a private contractor at a Government-owned munitions plant operated by the contractor under a cost-plus-a-fixed-fee contract made with the United States. We hold that the Act does apply but we do not reach the question of the validity of the individual claims based upon it. This issue was argued here in Kennedy v. Silas Mason Co., 334 U. S. 249. We, however, remanded that case and withheld decision of the issue, awaiting a.more solid basis of findings. Id. at p. 257. Each of the instant cases presents such a basis. No. 96 (The Powell Case). In December, 1940, the United States contracted with The United States Cartridge Company, respondent herein, as “an independent contractor and in no wise an agent of the Government” on a cost-plus-a-fixed-fee basis to operate the Government’s St. Louis Ordnance Plant in Missouri. The contract stated that it was authorized by the Act of July 2,1940. It provided that the respondent would operate the Government’s plant for the manufacture of certain types and quantities of small arms ammunition, that the Government would reimburse the respondent for its expenditures in such operation and, in addition, pay the respondent a fixed fee based upon the types and quantities of ammunition it supplied. The title to the site, plant, equipment and, in general, to the raw material, work in progress and finished munitions was to be in the Government. Most of the materials were to be supplied by the Government. The contract provided expressly for the reimbursement of the respondent’s expenses for labor. The respondent, in turn, agreed to supply practically all services incident to the setting up of an efficient operating force and to the opération of the plant until the required ammunition had been produced. The respondent was made responsible for storing the materials, supplies and finished ammunition and for loading the ammunition on cars or other carriers in accordance with the Government’s instructions. The ammunition generally was shipped by common carrier on Government bills of lading to military destinations outside of Missouri. The Government reserved large rights of supervision, auditing and inspection to be exercised through its “Contracting Officer.” The employees, including the petitioners, were to be hired, assigned, directed, supervised, paid and discharged by the respondent. The contract stated expressly that all persons engaged in the work “shall be subject to the control and constitute employees of the Contractor....” It quoted all of the “representations and stipulations” relating to employment directed by the Walsh-Healey Act. Under it, the contracting officer (subject to a right of appeal) could require the respondent to dismiss any employee whom he deemed incompetent or whose retention “is deemed” not to be in the public interest. The contract made no express reference to the Fair Labor Standards Act. However, in a booklet which was distributed by the respondent, each employee at the St. Louis Ordnance Plant was informed, among other things, that “There will be eight hours in any working day, and forty hours will constitute a working week.... When production demands require a longer work day, or longer work week, the Company will pay the legal overtime rate as provided under the WalshHealey Act, and the Fair Labor Standards Act.” (Emphasis supplied.) The 59 individual petitioners were employed in the safety department of the plant. They alleged that, under the Fair Labor Standards Act, they were entitled to overtime pay which they had not received. They sued in the United States District Court for the Eastern District of Missouri to recover that pay, plus liquidated damages and an attorney’s fee. The respondent denied liability on many grounds, including those that the Fair Labor Standards Act did not apply to employees at the St. Louis Ordnance Plant and that, in any event, these petitioners were not entitled to any recovery under that Act. After trial, the District Court entered judgment in favor of the petitioners for the total sum of $246,251.44 (twice the amount of the overtime pay claimed), plus $24,625 as an attorney’s fee and costs. The respondent moved for a new trial so that the Portal-to-Portal Act of 1947, which had been adopted five days before the District Court’s judgment, might be applied to the issues. The motion was denied and the case was appealed. While the appeal was pending in the United States Court of Appeals for the Eighth Circuit, the decision of this Court in Kennedy v. Silas Mason Co., supra, was announced. The Court of Appeals thereupon heard a reargument of this case with special reference to the issues raised in the Silas Mason case. Sitting en banc, it reversed the District Court and held that the Fair Labor Standards Act did not apply to employment at the St. Louis Ordnance Plant. 174 F. 2d 718. All seven judges held that the Walsh-Healey Act applied to such employment to the exclusion of the Fair Labor Standards Act. Four of those judges also joined in an opinion (p. 726) stating that the Act of July 2, 1940, had given discretion to the Secretary of War to determine what overtime regulations should be applicable to Government-owned privately operated plants and that, through his adoption of the Walsh-Healey Act, he had rendered the Fair Labor Standards Act inapplicable under this contract. The Court of Appeals did not reach the merits of the individual claims of the petitioners under the Fair Labor Standards Act. We granted certiorari. 338 U. S. 810. No. 79 (The Aaron Case). This case presents substantially the same issue as that in the Powell case, but it relates to employees at the Arkansas Ordnance Plant. The issue arises on a summary judgment of the United States District Court for the Eastern District of Arkansas in favor of the respondent, rendered on pleadings, supporting affidavits, admissions of fact and answers to interrogatories. The plant was operated by the respondent under a cost-plus-a-fixed-fee contract entered into with the United States in July, 1941, and generally comparable, for present purposes, with that in the Powell case. The petitioners, 1,278 in number, were handlers, carriers and processors of explosives, who claimed additional compensation under the Fair Labor Standards Act for approximately 35 minutes before, and 30 minutes after, their scheduled work in the plant. The respondent answered and moved for summary judgment on three grounds — that the petitioners were not engaged in the kind of work that is covered by the Fair Labor Standards Act, that they are not within the coverage of the Act because they were employees of the United States, and that, by virtue of the Portal-to-Portal Act of 1947, they are not entitled to recover in any event. In rendering judgment for the respondent, the District Court adopted its opinion in Barksdale v. Ford, Bacon & Davis, 70 F. Supp. 690. Without passing on other contentions, it there held that the Fair Labor Standards Act was not applicable because, in processing and assembling munitions under like conditions, the respondent had not been engaged “in the production of goods for commerce” within the meaning of that Act. The Court of Appeals for the Eighth Circuit affirmed, 174 F. 2d 730, on authority of its decision in the Powell case, supra. We granted certiorari. 337 U. S. 955. No. 58 (The Creel Case). This case, from the Fifth Circuit, presents substantially the same issue as do the Powell and Aaron cases. The issue arises on a summary judgment in favor of the respondent, rendered by the United States District Court for the Eastern District of Texas on pleadings and supporting affidavits. Here the Lone Star Ordnance Plant, near Texarkana, Texas, was owned by the Government and operated by the respondent under a cost-plus-a-fixed-fee contract entered into with the United States in July, 1941, comparable in its material features to those in the Powell and Aaron cases. The petitioners, several hundred in number, were employed at the plant in capacities such as those of truck drivers, lift-fork operators, loaders and unloaders. Their services were used in the production of munitions, such as shells, bombs, detonators and other ordnance items. The title to substantially all of the raw material, work in progress and finished products was in the Government. Most of the materials were furnished by the Government and the finished products were shipped in accordance with Government instructions on Government bills of lading to military destinations, usually outside of Texas. The petitioners sued for overtime pay claimed to be due them under the Fair Labor Standards Act. Quoting from the opinion of the District Court in the Barksdale case, supra, the trial court gave judgment for the respondent. The Court of Appeals for the Fifth Circuit affirmed. 171 F. 2d 964. It stated that the respondent, on the record before it, was an agency of the Government, was not an independent contractor and was not engaged in commerce within the meaning of the Fair Labor Standards Act. We granted certiorari. 337 U. S. 923. We heard this case with the Powell and Aaron cases. The United States filed a brief and argued here, as amicus curiae, in support of the petitioners on the limited issue now before us. I. The Petitioners Were Not Employees of the United States Within the Meaning of the Fair Labor Standards Act. If the petitioners were employees of the United States, the Fair Labor Standards Act excludes them from its coverage. A similar defense is presented through the claim that the respondents were not independent contractors but were agencies of the United States, representing and binding the United States as their principal in the employment of petitioners. In each contract, there was a provision comparable to the following quoted from the contract in the Powell case: “Article I-E — -Authority of the Contractor. “In carrying out the work under this Title I the Contractor is authorized to do all things necessary or convenient in and about the operating and closing down of the Plant, or any part thereof, including (but not limited to) the employment of all persons engaged in the work hereunder, (who shall be subject to the control and constitute employees of the Contractor), (Emphasis supplied.) Each contract is replete with references to the persons employed as the “employees of the Contractor” or “persons employed by the Contractor.” The contract in the Powell case contained the following additional clause: “Article III-A — Status of Contractor. “It is expressly understood and agreed by the Contractor and the Government that in the performance of the work provided for in this contract, the Contractor is an independent contractor and in no wise an agent of the Government.” (Emphasis supplied.) “(d) 'Employer’ includes any person acting directly or indirectly in the interest of an employer in relation to an employee but shall not include the United States or any State or political subdivision of a State,.... “(e) 'Employee’ includes any individual employed by an employer.” (Emphasis supplied.) 52 Stat. 1060, 29 U. S. C. § 203 (d) and (e). Such provisions are persuasive that the petitioners should be recognized here as employees of the respective respondents and the respondents as independent contractors. The respondents argue, however, that the context of the times, other provisions of the contracts and the practice under the contracts deprive these statements of their ordinary meaning. We find, on the contrary, that each of these sources supplies additional evidence that these provisions correctly state the true relationship between the petitioners and respondents. For example, we find in these contracts a reflection of the fundamental policy of the Government to refrain, as much as possible, from doing its own manufacturing and to use, as much as possible (in the production of munitions), the experience in mass production and the genius for organization that had made American industry outstanding in the world. The essence of this policy called for private, rather than public, operation of war production plants. This purpose shines through the following clause in the contract in the Powell case: “Whereas, The Government desires to have the Contractor, as an independent contractor on a cost-plus-a-fixed-fee basis, make all necessary preparations for the operation of said plant, including the training of operating personnel... but excluding the procurement and supervision of the installation of manufacturing facilities [to be done, under a like contract, by the contractor’s parent corporation, Western Cartridge Company]; and operate said plant;....” (Emphasis supplied.) It would have been simple for the Government to have ordered all of this production to be done under governmental operation as well as under governmental ownership. To do so, however, might have weakened our system of free enterprise. We relied upon that system as the foundation of the general industrial supremacy upon which ultimate victory might depend. In this light, the Government deliberately sought to insure private operation of its new munitions plants. In these great projects built for and owned by the Government, it was almost inevitable that the new equipment. and materials would be supplied largely by the Government and that the products would be owned and used by the Government. It was essential that the Government supervise closely the expenditures made and the specifications and standards established by it. These incidents of the program did not, however, prevent the placing of managerial responsibility upon independent contractors. The relationship of employee and employer between the worker and the contractor appears not only in the express terminology that has been quoted. It appears in the substantial obligation of the respondent-contractors to train their working forces, make job assignments, fix salaries, meet payrolls, comply with state workmen’s compensation laws and Social Security requirements and “to do all things necessary or convenient in and about the operating and closing down of the Plant,....” The insertion in each of these contracts of the representations and specifications that are set forth in the Walsh-Healey Act was, in itself, a recognition by the Secretary of War of the independent contractor status of the respondents. The petitioner-employees and the Government expressly disavow, in their briefs, any employment relationship between them. The managerial duties imposed upon the respondents were the duties of employers. That such duties be performed by private contractors was a vital part of the Government’s general production policy. In the light of these considerations, we conclude -that the respective respondents, in form and in substance, were the employers of these petitioners within the meaning of the Fair Labor Standards Act. II. Petitioners Were Engaged in the Production of Goods for Commerce Within the Meaning of the Pair Labor Standards Act. Before discussing the definitions assigned by the Act to the words "commerce” and “goods,” it is helpful to examine the Act as a whole in the light of the time of its adoption. It was adopted in 1938, during an industrial depression. It expressly stated its purposes. This Court has further expounded them. In this Act, the primary purpose of Congress was not to regulate interstate commerce as such. It was to eliminate, as rapidly as practicable, substandard labor conditions throughout the nation. It sought to raise living standards without substantially curtailing employment or earning power. Roland Electrical Co. v. Walling, 326 U. S. 657, 669-670. The Government’s munitions plants provided an appropriate place for the beneficial application of the Act’s standards of working conditions without danger of reduced employment through loss of business. This Act would fail materially in its purpose if it did not reach the producers of the tremendous volume of wartime goods destined for interstate transportation. In 1941-1945 the manufacture of munitions was a major source of employment. Wages and hours in that industry were a major factor in fixing the living standards of American labor. A. The “transportation” of munitions of the United States to destinations outside of the state of their production is “commerce” within the meaning of the Act. The Act applies to “employees... engaged in commerce or in the production of goods for commerce.” The precise question here is whether the munitions were produced for “commerce” when such production was for transportation outside of the state and for use by the United States in the prosecution of war, but not for sale or exchange. Section 3 (b) of the Act contains the following definition of “commerce”: “(b) 'Commerce’ means trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof.” (Emphasis supplied.) 52 Stat. 1060, 29 U. S. C. § 203 (b). This definition is an exercise by Congress of its constitutional power “To regulate Commerce with foreign Nations, and among the several States,....” U. S. Const. Art. I, § 8, Cl. 3. Such power has been held repeatedly to include the power to regulate interstate shipments or transportation as such, and not merely to regulate shipments or transportation of articles that are intended for sale, exchange or other trading activities. Congress could have expressly exempted from the Act employees engaged in producing goods for interstate transportation not leading to a sale or exchange. Congress also could have exempted employees engaged in producing munitions for use by the United States in war, rather than for sale or exchange by it. Congress might even have exempted all employees producing goods in any Government-owned plants. However, Congress stated no such exemptions. On the contrary, Congress included, by express definition of terms, employees engaged in the production of goods for interstate transportation. In view of these considerations, we find no merit in an interpretation of the Act which would exclude from its coverage those employees who were engaged in the production of munitions for interstate transportation for use or consumption, as distinguished from transportation of them for sale or exchange. B. The munitions produced were “goods” within the meaning of the Fair Labor Standards Act. The respondents argue that, even though the munitions were produced for commerce, they were not “goods” within the meaning of the Act. Section 3 (i) defines “Goods” as follows: “(i) ‘Goods’ means goods (including ships and marine equipment), wares, products, commodities, merchandise, or articles or subjects of commerce of any character, or any part or ingredient thereof, but does not include goods after their delivery into the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof.” (Emphasis supplied.) 52 Stat. 1061, 29 U. S. C. § 203 (i). Respondents claim that this language excludes the petitioners from the coverage of the Act because the petitioners were engaged in producing munitions which thereafter, and prior to their interstate transportation, were to be delivered to the United States as the ultimate consumer. This interpretation would deprive the original jurisdictional fact — that at the time the munitions were produced they were intended for interstate transportation — of its covering effect merely because those munitions, upon a later delivery to the United States, would then cease to be “goods” within the meaning of the Act. We believe that the crucial fact which establishes the coverage of the Act is the status of the munitions, as “goods,” during the time they were being produced. The literal meaning of the exclusionary clause in § 3 (i), and that which best serves the purposes of the Act, is merely that, after the products shall have been delivered into the actual physical possession of their ultimate consumer, they then shall cease to be “goods.” This retains the important effect that, thereafter, it is not a violation of § 15 (a) (l) for the ultimate consumer to transport the products outside of the state. This interpretation was adopted by the Wage and Hour Administrator. 1940 WH Man. 131, 133. It was readopted without change in the July, 1947, revision of the Administrator’s Interpretations. 12 Fed. Reg. 4585, 29 C. F. R. § 776.7 (h). We hold, therefore, that the fact that the munitions were produced for delivery, into the actual physical possession of the United States as their ultimate consumer, before their subsequent interstate shipment, does not deprive the employees who produced the munitions of the benefits of the Fair Labor Standards Act. It is not material whether such interstate transportation was to take place before or after the delivery of the munitions to the United States. In either event, the employees were engaged in the production of “goods” for “commerce.” To hold otherwise would restrict the Act not only arbitrarily but also inconsistently with its broad purposes. III. The Walsh-Healey Act and the Fair Labor Standards Act Are Not Mutually Exclusive. The Walsh-Healey Act was adopted about one year after the National Industrial Recovery Act had been declared unconstitutional. Schechter Corp. v. United States, 295 U. S. 495. Seeking then to regulate wages and hours of employees, the Walsh-Healey Act kept within a narrow field of assured constitutionality. It prescribed that, in Government contracts for the manufacture or furnishing of materials, supplies, articles and equipment in any amount exceeding $10,000, the contractor pay its employees not less than the minimum wages determined by the Secretary of Labor to be the prevailing minimum wages for persons employed on similar work in the locality. It prescribed also that no such employees be permitted to work in excess of eight hours in any one day or in excess of 40 hours in any one week, that no male person under 16 years of age, no female person under 18 years of age and no convict labor be employed by the contractor, and that no part of the contract be performed or any of the material, supplies, articles or equipment be manufactured or fabricated under working conditions unsanitary, hazardous or dangerous to the health and safety of the employees. The Fair Labor Standards Act of 1938 was passed nearly two years later by the next Congress. It presented a different and broader approach. It was not restricted to public contracts. The sponsor of the bill stated that it was intended to carry out the suggestions made by the President in his message to Congress. 81 Cong. Rec. 4960, 4961 (1937). In that message, the President said: .. to protect the fundamental interests of free labor and a free people we propose that only goods which have been produced under conditions which meet the minimum standards of free labor shall be admitted to interstate commerce. Goods produced under conditions which do not meet rudimentary standards of decency should be regarded as contraband and ought not to be allowed to pollute the channels of interstate trade.” The Act declared its purposes in bold and sweeping terms. Breadth of coverage was vital to its mission. Its scope was stated in terms of substantial universality amply broad enough to include employees of private contractors working on public projects as well as on private projects. Where exceptions were made, they were narrow and specific. It included as employees “any individual employed by an employer” (§ 3 (e)), and defined an employer so as amply to cover an individual or corporation employing persons on public contracts, while expressly excluding, as an employer, “the United States or any State or political subdivision of a State,...” (§ 3 (a) and (d)). It devoted § 13 to listing exemptions of specific classes of employees. For example, it exempted any seaman, any employee of a carrier by air subject to Title II of the Railway Labor Act and any employee employed in agriculture. It exempted certain employees under § 204 of the Motor Carrier Act, 1935, but limited their exemption to the maximum hour provisions in § 7. It also exempted any employee of an employer subject to Part I of the Interstate Commerce Act. Such specificity in stating exemptions strengthens the implication that employees not thus exempted, such as employees of private contractors under public contracts, remain within the Act. The Act includes the following affirmative statement as to the relation of its provisions to other laws: “relation to other laws “Sec. 18. No provision of this Act or of any order thereunder shall excuse noncompliance with any Federal or State law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this Act or a maximum workweek lower than the maximum workweek established under this Act, and no provision of this Act relating to the employment of child labor shall justify noncompliance with any Federal or State law or municipal ordinance establishing a higher standard than the standard established under this Act. No provision of this Act shall justify any employer in reducing a wage paid by him which is in excess of the applicable minimum wage under this Act, or justify any employer in increasing hours of employment maintained by him which are shorter than the maximum hours applicable under this Act.” 52 Stat. 1069, 29 U. S. C. § 218. The above language discloses a congressional awareness that the coverage of the Fair Labor Standards Act overlaps that of other federal legislation affecting labor standards. In other enactments we find collateral recognition that the Walsh-Healey Act might apply to the same employment as the Fair Labor Standards Act. An amendment to the Walsh-Healey Act, in 1942, recognized this possibility. Similarly, the Portal-to-Portal Act of 1947 indicated that persons employed by Government contractors, and thus protected by the Walsh'-Healey Act, were entitled to the benefits of the Fair Labor Standards Act. Despite evidence that the two statutes define overlapping areas, respondents contend that they should be construed as being mutually exclusive. There has been no presentation of instances, however, where compliance with one Act makes it impossible to comply with the other. There has been no demonstration of the impossibility of determining, in each instance, the respective wage requirements under each Act and then applying the higher requirement as satisfying both. The Government has presented, as a considered analysis of the overlapping effects of these Acts, excerpts from the Manual of Instructions for the Administration of Contracts (War Department, Office of the Chief of Ordnance, 1941). These are published in the appendix to the brief of the United States. Their forthright treatment and detailed suggested solutions of the practical aspects of the supplementary use of the two Acts are impressive. In some, and probably most, instances, the “prevailing minimum wages” required by the Walsh-Healey Act were more advantageous to employees than the minimum wages prescribed by the Fair Labor Standards Act at the times here under review. On the other hand, the remedial procedure under the later Act was generally more advantageous to employees than the procedure under the earlier Act. We conclude that the Acts are not mutually exclusive. The applicability of the Walsh-Healey Act to the contracts before us therefore does not preclude the application of the Fair Labor Standards Act to employees under the same contracts. We find the Acts to be mutually supplementary. IV. Neither the Act of July 2, 1940, nor the Action of the Secretary of War Taken Pursuant to it Excludes the Applicability of the Fair Labor Standards Act. We find in the Act of July 2, 1940, no such recognition of the uniqueness of War Department contracts for the private operation of Government-owned munitions plants as is claimed in the concurring opinion below in the Powell case. Without more specific provisions than this Act contains, we cannot interpret it as excluding, or as granting, authority to executive officers to exclude, employees in such plants from the benefits of the general wage and hour provisions which Congress has established in the Walsh-Healey.Act and more fully and recently in the Fair Labor Standards Act. The purposes of this temporary Act of 1940 were the clarification of the contract-making authority of the War Department under existing general law, with such exceptions as were expressly noted, the elimination of certain hazards, and the making of additional grants of emergency authority to the President. For example, this Act referred expressly to the Walsh-Healey Act as applicable to the new War Department contracts when entered into with or without advertising. This was helpful because, when the Walsh-Healey Act was adopted, the contracts to which it applied did not include contracts negotiated without advertising for competitive bids. Similarly, the 1940 Act expressly suspended certain specific limitations on the War Department, e. g., requirements of the congressional approval of estimates and the making of appropriations prior to undertaking construction of certain buildings (§ 1 (a)), restrictions on leasing (§ 1 (b)), restrictions on the assignment of personnel (§ 2(b)), limitations on the number of serviceable aircraft (§3), and restrictions as to civil service employees (§4(a)). No suggestion was made of a suspension of part or all of the Fair Labor Standards Act, nor was anything authorized that would violate that Act. The single reference made in the 1940 Act to the WalshHealey Act was to insure the applicability of the latter Act to negotiated contracts. This appears from the following revealing statement made on the floor of the Senate by Senator Wagner, the author of the amendment containing the reference: “A question has arisen — and the amendment is simply to remove the ambiguity — as to whether the Walsh-Healey Act, which is now definitely applicable to a contract for the purchase of supplies as a result of advertising, will also apply to a negotiated contract.... “... Unless this amendment is adopted we would have this anomalous situation: Under a contract entered into with the Government as the result of public bidding one set of minimum wages, that is, the prevailing wages [under the Walsh-Healey Act], would be applied, whereas under another contract entered into as a result of negotiations, a much lower minimum wage would be paid, that is, the flat minimum under the Wage and Hour Act [the Fair Labor Standards Act]. This situation would present an opportunity for exploitation, since a contractor under a negotiated contract might be paying wages in some instances 25 percent to 75 percent below those required under the Healey-Walsh Act. I am sure that we would not want to invite any such exploitation.” (Emphasis supplied.) 86 Cong. Rec. 7924 (1940). See also, 86 Cong. Rec. 7839-7843, and H. R. Rep. No. 2685, 76th Cong., 3d Sess. 1 (1940). We have considered the other contentions of the respondents, including the weight to be given to the Statement of Labor Policy issued by the War and Navy Departments in 1942, but we do not find in them a convincing refutation of the foregoing conclusions. We, accordingly, find that the Fair Labor Standards Act of 1938, as amended, is applicable to the issues presented in each of the instant cases. We do not reach the validity of the individual claims of the petitioners made in reliance upon that Act. In No. 96, Powell et al. v. The United States Cartridge Company, the judgment of the Court of Appeals is reversed and the cause is remanded to that court for further consideration of the errors asserted on appeal but not reviewed by that court. In No. 79, Aaron et al. v. Ford, Bacon and Davis, and in No. 58, Creel v. Lone Star Defense Corporation, the judgments of the respective Courts of Appeals are reversed and the causes are remanded to the respective District Courts for further proceedings in conformity with this opinion. It is so ordered. Mr. Justice Douglas and Mr. Justice Clark took no part in the consideration or decision of any of these cases. Mr. Justice Frankfurter, whom Mr. Justice Jackson joins, dissenting. These cases do not present just another one of those situations in the long series in which the Court has been called upon to give a sympathetic construction to the Fair Labor Standards Act. We do not here have a controversy involving relations between a capitalist employer and his employees. The real controversy is between the Department of the Army which conceived, formulated, and administered a scheme for the production of war materiel by means of Government-owned plants and the Wage and Hour Division of the Department of Labor which administers the Fair Labor Standards Act. We do not have her.e, in short, the resistance of private employers to the demands of their employees. Here a vast claim on the Treasury of the United States is in issue. The issue should be decided in light of the fact that Congress has manifested in the most emphatic way that the Fair Labor Standards Act is not to be stretched to the extent that sophistical argumentation can stretch its scope but is to be applied in a commonsensical way. Fine distinctions in the application of the statute can hardly be avoided. That makes it all the more necessary to hew close to the line marked out by the specific facts of the cases before us. The caution that general propositions do not decide concrete cases is particularly to be heeded in dealing with an enactment framed in terms of legal categories having diverse and conflicting contents. It begs the real question to purport to solve a particular problem merely by invoking such a category. Not only is it important to be heedful of what these cases are really about; it is no less important to be mindful of what they are not about. The problem before us is not the applicability of the Fair Labor Standards Act to work done under all Government contracts, or even to work under all varieties of war production contracts, cost-plus-fixed-fee or otherwise. What is involved is the particular kind of cost-plus-fixed-fee contracts for the operation of ordnance plants under the Act of July 2, 1940, which authorized the Secretary of War to provide for the operation of such plants “through the agency of selected qualified commercial manufacturers.” 54 Stat. 713, 50 U. S. C. App. § 1171 (b). An analysis of the nature of the interrelationship of Government, contractor and employees is necessary to put the issues in their proper perspective. The facts are substantially the same in all three cases, but since the findings in No. 79, Aaron v. Ford, Bacon & Davis, Inc., are particularly detailed, further discussion will center on that case. The United States contracted with respondent Ford, Bacon & Davis, Inc. in July, 1941, for the operation of the Government-owned Arkansas Ordnance Plant and production there of munitions for war — detonators, percussion elements, artillery primers, fuses, boosters and powder train fuses. The plant was a military reservation under the immediate control of an ordnance officer designated by the Chief of Ordnance. Munition quotas and specifications were set by the Government, and inspection by Government officials at each stage of production checked compliance with rules promulgated by the Government not merely as to safety but as to production as well. The contract was terminable at will by the Government and under it the “normal factors which go to make up commercial profit are lacking.” War and Navy Departments’ Statement of Labor Policy Governing Government-Owned, Privately Operated Plants (1942), digested in 2 CCH War Law Serv. ¶24,862 et seq. The United States owned all materials and equipment used in connection with the operation of the plant. Ninety-five per cent were furnished by the Government directly; the remainder was obtained by the contractor after approval by the Government. The United States obtained title to the latter purchases at the point of origin, and shipment to the plant was on Government bills of lading at a reduced rate and without payment of transportation tax. Title to all materials, equipment, and work in process in the plant was at all times in the United States. Finished products were shipped out of Arkansas to military facilities on Government bills of lading. Under the contract the Government paid all expenses of operating the plant, including labor costs. The contractor was even allowed costs of production of munitions that did not meet specifications and could not be used. The Government contracted for electric power, telephone, teletype and telegraph services itself and paid the bills directly, and provided employees traveling on business with tax-free transportation tickets. At no time did the contractor have to advance its own money — expenses were paid out of available Government funds. For its services in operating the plant, the contractor was paid a fixed fee. The War and Navy Departments’ Statement of Labor Policy forbade agreements between the contractor and personnel “which, in the opinion of either the Secretary of War or the Secretary of the Navy, will have the effect of restricting or hampering maximum output.” Although the contract provided that the contractor was to hire all employees and that they were to be “subject to the control and constitute employees of the Contractor,” the Government retained the right to approve or disapprove the employment of all personnel and could require the dismissal of any employee deemed “incompetent or whose retention is deemed to be not in the public Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

G

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Me. Justice Blackmun delivered the opinion of the Court. This case presents issues concerning the constitutional propriety of the introduction in evidence of the preliminary hearing testimony of a witness not produced at the defendant’s subsequent state criminal trial. I Local police arrested respondent, Herschel Roberts, on January 7, 1975, in Lake County, Ohio. Roberts was charged with forgery of a check in the name of Bernard Isaacs, and with possession of stolen credit cards belonging to Isaacs and his wife Amy. A preliminary hearing was held in Municipal Court on January 10. The prosecution called several witnesses, including Mr. Isaacs. Respondent’s appointed counsel had seen the Isaacs’ daughter, Anita, in the courthouse hallway, and called her as the defense’s only witness. Anita Isaacs testified that she knew respondent, and that she had permitted him to use her apartment for several days while she was away. Defense counsel questioned Anita at some length and attempted to elicit from her an admission that she had given respondent checks and the credit cards without informing him that she did not have permission to use them. Anita, however, denied this. Respondent’s attorney did not ask to have the witness declared hostile and did not request permission to place her on cross-examination. The prosecutor did not question Anita. A county grand jury subsequently indicted respondent for forgery, for receiving stolen property (including the credit cards), and for possession of heroin. The attorney who represented respondent at the preliminary hearing withdrew upon becoming a Municipal Court Judge, and new counsel was appointed for Roberts. Between November 1975 and March 1976, five subpoenas for four different trial dates were issued to Anita at her parents’ Ohio residence. The last three carried a written instruction that Anita should “call before appearing.” She was not at the residence when these were executed. She did not telephone and she did not appear at trial. In March 1976, the case went to trial before a jury in the Court of Common Pleas. Respondent took the stand and testified that Anita Isaacs had given him her parents’ checkbook and credit cards with the understanding that he could use them. Tr. 231-232. Relying on Ohio Rev. Code Ann. § 2945.49 (1975), which permits the use of preliminary examination testimony of a witness who “cannot for any reason be produced at the trial,” the State, on rebuttal, offered the transcript of Anita’s testimony. Tr. 273-274. Asserting a violation of the Confrontation Clause and, indeed, the unconstitutionality thereunder of § 2945.49, the defense objected to the use of the transcript. The trial court conducted a voir dire hearing as to its admissibility. Tr. 194-199. Amy Isaacs, the sole witness at voir dire, was questioned by both the prosecutor and defense counsel concerning her daughter’s whereabouts. Anita, according to her mother, left home for Tucson, Ariz., soon after the preliminary hearing. About a year before the trial, a San Francisco social worker was in communication with the Isaacs about a welfare application Anita had filed there. Through the social worker, the Isaacs reached their daughter once by telephone. Since then, however, Anita had called her parents only one other time and had not been in touch with her two sisters, When Anita called, some seven or eight months before trial, she told her parents that she “was traveling” outside Ohio, but did not reveal the place from which she called. Mrs. Isaacs stated that she knew of no way to reach Anita in case of an emergency. App. 9. Nor did she “know of anybody who knows where she is.” Id., at 11. The trial court admitted the transcript into evidence. Respondent was convicted on all counts. The Court of Appeals of Ohio reversed. After reviewing the voir dire, that court concluded that the prosecution had failed to make a showing of a “good-faith effort” to secure the absent witness’ attendance, as required by Barber v. Page, 390 U. S. 719, 722-725 (1968). The court noted that “we have no witness from the prosecution to testify... that no one on behalf of the State could determine Anita’s whereabouts, [or] that anyone had exhausted contact with the San Francisco social worker.” App. 5. Unavailability would have been established, the court said, “[h]ad the State demonstrated that its subpoenas were never actually served on the witness and that they were unable to make contact in any way with the witness.... Until the Isaacs’ voir dire, requested by the defense, the State had done nothing, absolutely nothing, to show the Court that Anita would be absent because of unavailability, and they showed no effort having been made to seek out her whereabouts for purpose of trial.” Ibid. The Supreme Court of Ohio, by a 4-3 vote, affirmed, but did so on other grounds. 55 Ohio St. 2d 191, 378 N. E. 2d 492 (1978). It first held that the Court of Appeals had erred in concluding that Anita was not unavailable. Barber v. Page was distinguished as a case in which “the government knew where the absent witness was,” whereas Anita’s “whereabouts were entirely unknown.” 55 Ohio St. 2d, at 194, 378 N. E. 2d, at 495. “[T]he trial judge could reasonably have concluded from Mrs. Isaacs’ voir dire testimony that due diligence could not have procured the attendance of Anita Isaacs”; he “could reasonably infer that Anita had left San Francisco”; and he “could properly hold that the witness was unavailable to testify in person.” Id., at 195, 378 N. E. 2d, at 495-496. The court, nonetheless, held that the transcript was inadmissible. Reasoning that normally there is little incentive to cross-examine a witness at a preliminary hearing, where the “ultimate issue” is only probable cause, id., at 196, 378 N. E. 2d, at 496, and citing the dissenting opinion in California v. Green, 399 U. S. 149, 189 (1970), the court held that the mere opportunity to cross-examine at a preliminary hearing did not afford constitutional confrontation for purposes of trial. See 55 Ohio St. 2d, at 191, 378 N. E. 2d, at 493 (court syllabus). The court distinguished Green, where this Court had ruled admissible the preliminary hearing testimony of a declarant who was present at trial, but claimed forgetfulness. The Ohio court perceived a “dictum” in Green that suggested that the mere opportunity to cross-examine renders preliminary hearing testimony admissible. 55 Ohio St. 2d, at 198, and n. 2, 378 N. E. 2d, at 497, and n. 2, citing 399 U. S., at 165-166. But the court concluded that Green “goes no further than to suggest that cross-examination actually conducted at preliminary hearing may afford adequate confrontation for purposes of a later trial.” 55 Ohio St. 2d, at 199, 378 N. E. 2d, at 497 (emphasis in original). Since Anita had not been cross-examined at the preliminary hearing and was absent at trial, the introduction of the transcript of her testimony was held to have violated respondent’s confrontation right. The three dissenting justices would have ruled that “ ‘the test is the opportunity for full and complete cross-examination rather than the use which is made of that opportunity’ ” (citing United States v. Allen, 409 F. 2d 611, 613 (CA10 1969)). 55 Ohio St. 2d, at 200, 378 N. E. 2d, at 498. We granted certiorari to consider these important issues under the Confrontation Clause. 441 U. S. 904 (1979). II A The Court here is called upon to consider' once again the relationship between the Confrontation Clause and the hearsay rule with its many exceptions. The basic rule against hearsay, of course, is riddled with exceptions developed over three centuries. See E. Cleary, McCormick on Evidence § 244 (2d ed. 1972) (McCormick) (history of rule); id., §§ 252-324 (exceptions). These exceptions vary among jurisdictions as to number, nature, and detail. See, e. g., Fed. Rules Evid. 803, 804 (over 20 specified exceptions). But every set of exceptions seems to fit an apt description offered more than 40 years ago: “an old-fashioned crazy quilt made of patches cut from a group of paintings by cubists, futurists and surrealists.” Morgan & Maguire, Looking Backward and Forward at Evidence, 50 Harv. L. Rev. 909, 921 (1937). The Sixth Amendment’s Confrontation Clause, made applicable to the States through the Fourteenth Amendment, Pointer v. Texas, 380 U. S. 400, 403-405 (1965); Davis v. Alaska, 415 U. S. 308, 315 (1974), provides: “In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” If one were to read this language literally, it would require, on objection, the exclusion of any statement made by a declarant not present at trial. See Mattox v. United States, 156 U. S. 237, 243 (1895) (“[Tjhere could be nothing more directly contrary to the letter of the provision in question than the admission of dying declarations”). But, if thus applied, the Clause would abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme. The historical evidence leaves little doubt, however, that the Clause was intended to exclude some hearsay. See California v. Green, 399 U. S., at 156-157, and nn. 9 and 10; see also McCormick § 252, p. 606. Moreover, underlying policies support the same conclusion. The Court has emphasized that the Confrontation Clause reflects a preference for face-to-face confrontation at trial, and that “a primary interest secured by [the provision] is the right of cross-examination.” Douglas v. Alabama, 380 U. S. 415, 418 (1965). In short, the Clause envisions “a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox v. United States, 156 U. S., at 242-243. These means of testing accuracy are so important that the absence of proper confrontation at trial “calls into question the ultimate ‘integrity of the fact-finding process.’ ” Chambers v. Mississippi, 410 U. S. 284, 295 (1973), quoting Berger v. California, 393 U. S. 314, 315 (1969). The Court, however, has recognized that competing interests, if “closely examined,” Chambers v. Mississippi, 410 U. S., at 295, may warrant dispensing with confrontation at trial. See Mattox v. United States, 156 U. S., at 243 (“general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case”). Significantly, every jurisdiction has a strong interest in effective law enforcement, and in the development and precise formulation of the rules of evidence applicable in criminal proceedings. See Snyder v. Massachusetts, 291 U. S. 97, 107 (1934) ; California v. Green, 399 U. S., at 171-172 (concurring opinion). This Court, in a series of cases, has sought to accommodate these competing interests. True to the common-law tradition, the process has been gradual, building on past decisions, drawing on new experience, and responding to changing conditions. The Court has not sought to “map out a theory of the Confrontation Clause that would determine the validity of all... hearsay ‘exceptions/ ” California v. Green, 399 U. S., at 162. But a general approach to the problem is discernible. B The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. See Mancusi v. Stubbs, 408 U. S. 204 (1972); Barber v. Page, 390 U. S. 719 (1968). See also Motes v. United States, 178 U. S. 458 (1900); California v. Green, 399 U. S., at 161-162, 165, 167, n. 16. The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that “there is no material departure from the reason of the general rule.” Snyder v. Massachusetts, 291 U. S., at 107. The principle recently was formulated in Mancusi v. Stubbs: “The focus of the Court’s concern has been to insure that there ‘are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant,’ Dutton v. Evans, supra, at 89, and to ‘afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement/ California v. Green, supra, at 161. It is clear from these statements, and from numerous prior decisions of this Court, that even though the witness be unavailable his prior testimony must bear some of these ‘indicia of reliability.’ ” 408 U. S., at 213. The Court has applied this “indicia of reliability” requirement principally by concluding that certain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the “substance of the constitutional protection.” Mattox v. United States, 156 U. S., at 244. This reflects the truism that “hearsay rules and the Confrontation Clause are generally designed to protect similar values,” California v. Green, 399 U. S., at 155, and “stem from the same roots,” Dutton v. Evans, 400 U. S. 74, 86 (1970). It also responds to the need for certainty in thé workaday world of conducting criminal trials. In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate “indicia of reliability.” Reliability can be inferred without more in a case where the evidence falls within a -firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness. III We turn first to that aspect of confrontation analysis deemed dispositive by the Supreme Court of Ohio, and answered by it in the negative — whether Anita Isaacs’ prior testimony at the preliminary hearing bore sufficient “indicia of reliability.” Resolution of this issue requires a careful comparison of this case to California v. Green, supra. A In Green, at the preliminary hearing, a youth named Porter identified Green as a drug supplier. When called to the stand at Green’s trial, however, Porter professed a lapse of memory. Frustrated in its attempt to adduce live testimony, the prosecution offered Porter’s prior statements. The trial judge ruled the evidence admissible, and substantial portions of the preliminary hearing transcript were read to the jury. This Court found no error. Citing the established rule that prior trial testimony is admissible upon retrial if the declarant becomes unavailable, Mattox v. United States, 156 U. S. 237 (1895); Mancusi v. Stubbs, 408 U. S. 204 (1972), and recent dicta suggesting the admissibility of preliminary hearing testimony under proper circumstances, Barber v. Page, 390 U. S., at 725-726; Pointer v. Texas, 380 U. S., at 407, the Court rejected Green’s Confrontation Clause attack. It reasoned: “Porter’s statement at the preliminary hearing had already been given under circumstances closely approximating those that surround the typical trial. Porter was under oath; respondent was represented by counsel — the same counsel in fact who later represented him at the trial; respondent had every opportunity to cross-examine Porter as to his statement; and the proceedings were conducted before a judicial tribunal, equipped to provide a judicial record of the hearings.” 399 U. S., at 165. These factors, the Court concluded, provided all that the Sixth Amendment demands: “substantial compliance with the purposes behind the confrontation requirement.” Id., at 166. This passage and others in the Green opinion suggest that the opportunity to cross-examine at the preliminary hearing— even absent actual cross-examination — satisfies the Confrontation Clause. Yet the record showed, and the Court recognized, that defense counsel in fact had cross-examined Porter at the earlier proceeding. Id., at 151. Thus, Me. Justice Brennan, writing in dissent, could conclude only that “[p]erhaps” “the mere opportunity for face-to-face encounter [is] sufficient.” Id., at 200, n. 8. See Note, 52 Texas L. Rev. 1167, 1170 (1974). We need not decide whether the Supreme Court of Ohio correctly dismissed statements in Green suggesting that the mere opportunity to cross-examine rendered the prior testimony admissible. See Westen, The Future of Confrontation, 77 Mich. L. Rev. 1185, 1211 (1979) (issue is “truly difficult to resolve under conventional theories of confrontation”). Nor need we decide whether de minimis questioning is sufficient, for defense counsel in this case tested Anita’s testimony with the equivalent of significant cross-examination. B Counsel’s questioning clearly partook of cross-examination as a matter of form. His presentation was replete with leading questions, the principal tool and hallmark of cross-examination. In addition, counsel’s questioning comported with the principal purpose of cross-examination: to challenge “whether the declarant was sincerely telling what he believed to be the truth, whether the declarant accurately perceived and remembered the matter he related, and whether the de-clarant’s intended meaning is adequately conveyed by the language he employed.” Davenport, The Confrontation Clause and the Co-Conspirator Exception in Criminal Prosecutions: A Functional Analysis, 85 Harv. L. Rev. 1378 (1972). Anita’s unwillingness to shift the blame away from respondent became discernible early in her testimony. Yet counsel continued to explore the underlying events in detail. He attempted, for example, to establish that Anita and respondent were sharing an apartment, an assertion that was critical to respondent’s defense at trial and that might have suggested ulterior personal reasons for unfairly casting blame on respondent. At another point, he directly challenged Anita’s veracity by seeking to have her admit that she had given the credit cards to respondent to obtain a television. When Anita denied this, defense counsel elicited the fact that the only television she owned was a “Twenty Dollar... old model.” App. 21. Cf. Davis v. Alaska, 415 U. S. 308, 316-317 (1974). Respondent argues that, because defense counsel never asked the court to declare Anita hostile, his questioning necessarily occurred on direct examination. See State v. Minneker, 27 Ohio St. 2d 155, 271 N. E. 2d 821 (1971). But however state law might formally characterize the questioning of Anita, it afforded “substantial compliance with the purposes behind the confrontation requirement,” Green, 399 U. S., at 166, no less so than classic cross-examination. Although Ohio law may have authorized objection by the prosecutor or intervention by the court, this did not happen. As in Green, respondent’s counsel was not “significantly limited in any way in the scope or nature of his cross-examination.” Ibid. We are also unpersuaded that Green is distinguishable on the ground that Anita Isaacs — unlike the declarant Porter in Green — was not personally available for questioning at trial. This argument ignores the language and logic of Green: “Porter’s statement would, we think, have been admissible at trial even in Porter’s absence if Porter had been actually unavailable.... That being the case, we do not think a different result should follow where the witness is actually produced.” Id., at 165. Nor does it matter that, unlike Green, respondent had a different lawyer at trial from the one at the preliminary hearing. Although one might strain one’s reading of Green to assign this factor some significance, respondent advances no reason of substance supporting the distinction. Indeed, if we were to accept this suggestion, Green would carry the seeds of its own demise; under a “same attorney” rule, a defendant could nullify the effect of Green by obtaining new counsel after the preliminary hearing was concluded. Finally, we reject respondent’s attempt to fall back on general principles of confrontation, and his argument that this case falls among those in which the Court must undertake a particularized search for “indicia of reliability.” Under this theory, the factors previously cited — absence of face-to-face contact at trial, presence of a new attorney, and the lack of classic cross-examination — combine with considerations uniquely tied to Anita to mandate exclusion of her statements. Anita, respondent says, had every reason to lie to avoid prosecution or parental reprobation. Her unknown whereabouts is explicable as an effort to avoid punishment, perjury, or self-incrimination. Given these facts, her prior testimony falls on the unreliable side, and should have been excluded. In making this argument, respondent in effect asks us to disassociate preliminary hearing testimony previously subjected to cross-examination from previously cross-examined prior-trial testimony, which the Court has deemed generally immune from subsequent confrontation attack. Precedent requires us to decline this invitation. In Green the Court found guarantees of trustworthiness in the accouterments of the preliminary hearing itself; there was no mention of the inherent reliability or unreliability of Porter and his story. See also Mancusi v. Stubbs, 408 U. S., at 216. In sum, we perceive no reason to resolve the reliability issue differently here than the Court did in Green. “Since there was an adequate opportunity to cross-examine [the witness], and counsel... availed himself of that opportunity, the transcript... bore sufficient ‘indicia of reliability’ and afforded ‘ “the trier of fact a satisfactory basis for evaluating the truth of the prior statement.” ’ ” 408 U. S., at 216. IV Our holding that the Supreme Court of Ohio erred in its “indicia of reliability” analysis does not fully dispose of the case, for respondent would defend the judgment on an alternative ground. The State, he contends, failed to lay a proper predicate for admission of the preliminary hearing transcript by its failure to demonstrate that Anita Isaacs was not available to testify in person at, the trial. All the justices of the Supreme Court of Ohio rejected this argument. 55 Ohio St. 2d, at 195 and 199, 378 N. E. 2d, at 495 and 497. A The basic litmus of Sixth Amendment unavailability is established: “[A] witness is not ‘unavailable’ for purposes of... the exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” Barber v. Page, 390 U. S., at 724-725 (emphasis added). Accord, Mancusi v. Stubbs, supra; California v. Green, 399 U. S., at 161-162, 165, 167, n. 16; Berger v. California, 393 U. S. 314 (1969). Although it might be said that the Court’s prior cases provide no further refinement of this statement of the rule, certain general propositions safely emerge. The law does not require the doing of a futile act. Thus, if no possibility of procuring the witness exists (as, for example, the witness’ intervening death), “good faith” demands nothing of the prosecution. But if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. “The lengths to which the prosecution must go to produce a witness... is a question of reasonableness.” California v. Green, 399 U. S., at 189, n. 22 (concurring opinion, citing Barber v. Page, supra). The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness. As with other evi-dentiary proponents, the prosecution bears the burden of establishing this predicate. B On the facts presented we hold that the trial court and the Supreme Court of Ohio correctly concluded that Anita's unavailability, in the constitutional sense, was established. At the voir dire hearing, called for by the defense, it was shown that some four months prior to the trial the prosecutor was in touch with Amy Isaacs and discussed with her Anita’s whereabouts. It may appropriately be inferred that Mrs. Isaacs told the prosecutor essentially the same facts to which she testified at voir dire: that the Isaacs had last heard from Anita during the preceding summer; that she was not then in San Francisco, but was traveling outside Ohio; and that the Isaacs and their other children knew of no way to reach Anita even in an emergency. This last fact takes on added significance when it is recalled that Anita’s parents earlier had undertaken affirmative efforts to reach their daughter when the social worker’s inquiry came in from San Francisco. This is not a case of parents abandoning all interest in an absent daughter. The evidence of record demonstrates that the prosecutor issued a subpoena to Anita at her parents’ home, not only once, but on five separate occasions over a period of several months. In addition, at the voir dire argument, the prosecutor stated to the court that respondent “witnessed that I have attempted to locate, I have subpoenaed, there has been a voir dire of the witness’ parents, and they have not been able to locate her for over a year.” App. 12. Given these facts, the prosecution did not breach its duty of good-faith effort. To be sure, the prosecutor might have tried to locate by telephone the San Francisco social worker with whom Mrs. Isaacs had spoken many months before and might have undertaken other steps in an effort to find Anita. One, in hindsight, may always think of other things. Nevertheless, the great improbability that such efforts would have resulted in locating the witness, and would have led to her production at trial, neutralizes any intimation that a concept of reasonableness required their execution. We accept as a general rule, of course, the proposition that “the possibility of a refusal is not the equivalent of asking and receiving a rebuff.” Barber v. Page, 390 U. S., at 724, quoting from the dissenting opinion in that case in the Court of Appeals (381 F. 2d 479, 481 (CA10 1966)). But the service and ineffectiveness of the five subpoenas and the conversation with Anita's mother were far more than mere reluctance to face the possibility of a refusal. It was investigation at the last-known real address, and it was conversation with a parent who was concerned about her daughter’s whereabouts. Barber and Mancusi v. Stubbs, supra, are the cases in which this Court has explored the issue of constitutional unavailability. Although each is factually distinguishable from this case, Mancusi provides significant support for a conclusion of good-faith effort here, and Barber has no contrary significance. Insofar as this record discloses no basis for concluding that Anita was abroad, the case is factually weaker than Mancusi; but it is stronger than Mancusi in the sense that the Ohio prosecutor, unlike the prosecutor in Mancusi, had no clear indication, if any at all, of Anita’s whereabouts. In Barber, the Court found an absence of good-faith effort where the prosecution made no attempt to secure the presence of a declarant incarcerated in a federal penitentiary in a neighboring State. There, the prosecution knew where the witness was, procedures existed whereby the witness could be brought to the trial, and the witness was not in a position to frustrate efforts to secure his production. Here, Anita’s whereabouts were not known, and there was no assurance that she would be found in a place from which she could be forced to return to Ohio. We conclude that the prosecution carried its burden of demonstrating that Anita was constitutionally unavailable for purposes of respondent’s trial. The judgment of the Supreme Court of Ohio is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. A number of continuances were granted for reasons unrelated to Anita’s absence. The statute reads: “Testimony taken at an examination or a preliminary hearing at which the defendant is present, or at a former trial of the cause, or taken by deposition at the instance of the defendant or the state, may be used whenever the witness giving such testimony dies, or cannot for any reason be produced at the trial, or whenever the witness has, since giving such testimony, become incapacitated to testify. If such former testimony is contained within a bill of exceptions, or authenticated transcript of such testimony, it shall be proven by the bill of exceptions, or transcript, otherwise by other testimony.” The Ohio “syllabus rule” is stated in Baltimore & Ohio R. Co. v. Baillie, 112 Ohio St. 567, 570, 148 N. E. 233, 234 (1925). See Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562, 565 (1977). With the caveat, “[s]implification has a measure of falsification,” McCormick defines hearsay evidence as “testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” § 246, p. 584. See California v. Green, 399 U. S. 149, 157 (1970) (“it is this literal right to 'confront’ the witness at the time of the trial that forms the core of the values furthered by the Confrontation Clause”); id., at 172-189 (concurring opinion); Barber v. Page, 390 U. S. 719, 725 (1968); Dowdell v. United States, 221 U. S. 325, 330 (1911). See also Davis v. Alaska, 415 U. S. 308, 315 (1974); Bruton v. United States, 391 U. S. 123, 126 (1968); Pointer v. Texas, 380 U. S. 400, 406-407 (1965); California v. Green, 399 U. S., at 158 (cross-examination is the “ 'greatest legal engine ever invented for the discovery of truth/ ” quoting 5 J. Wigmore, Evidence § 1367 (3d ed. 1940)). Of course, these purposes are interrelated, since one critical goal of cross-examination is to draw out discrediting demeanor to be viewed by the factfinder. See Government of Virgin Islands v. Aquino, 378 F. 2d 540, 548 (CA3 1967). Confrontation at trial also operates to ensure reliability in other ways. First, “[t]he requirement of personal presence... undoubtedly makes it more difficult to lie against someone, particularly if that person is an accused and present at trial.” 4 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 800 [01], p. 800-10 (1979). See also Note, 54 Iowa L. Rev. 360, 365 (1968). Second, it “insures that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury.” California v. Green, 399 U. S., at 158. A demonstration of -unavailability, however, is not always required. In Dutton v. Evans, 400 U. S. 74 (1970), for example, the Court found the utility of trial confrontation so remote that it did not require the prosecution to produce a seemingly available witness. Cf. Read, The New Confrontation — Hearsay Dilemma, 45 S. Cal. L. Rev. 1, 43, 49 (1972); The Supreme Court, 1970 Term, 85 Harv. L. Rev. 3, 194-195, 197-198 (1971). See, e. g., Pointer v. Texas, 380 U. S., at 407 (dying declarations); Mattox v. United States, 156 U. S., at 243-244 (same); Mancusi v. Stubbs, 408 U. S. 204, 213-216 (1972) (cross-examined prior-trial testimony); Comment, 30 La. L. Rev. 651, 668 (1970) (“Properly administered the business and public records exceptions would seem to be among the safest of the hearsay exceptions”). The complexity of reconciling the Confrontation Clause and the hearsay rules has triggered an outpouring of scholarly commentary. Few observers have commented without proposing, roughly or in detail, a basic approach. Some have advanced theories that would shift the general mode of analysis in favor of the criminal defendant. See F. Heller, The Sixth Amendment 105 (1951); Seidelson, Hearsay Exceptions and the Sixth Amendment, 40 Geo. Wash. L. Rev. 76, 91-92 (1971) (all hearsay should be excluded except, perhaps, when prosecution shows absolute necessity, high degree of trustworthiness, and “total absence” of motive to falsify); The Supreme Court, 1967 Term, 82 Harv. L. Rev. 63, 237 (1968); Note, 31 Vand. L. Rev. 682, 694 (1978). Others have advanced theories that would relax constitutional restrictions on the use of hearsay by the prosecutor. See 5 J. Wigmore, Evidence § 1397, p. 159 (J. Chadbourn rev. 1974); Note,. The Confrontation Test for Hearsay Exceptions: An Uncertain Standard, 59 Calif. L. Rev. 580, 594 (1971) (“fixed procedural definition of Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice White announced the judgment of the Court and delivered the opinion of the Court with respect to Part II-A, and an opinion with respect to Parts II-B, II-C, and II-D, in which The Chief Justice, Justice Rehnquist, and Justice O’Connor join. The Constitution expressly empowers Congress to “provide for the Punishment of counterfeiting the Securities and current Coin of the United States.” U. S. Const., Art. I, §8, cl. 6. Pursuant to that authority, Congress enacted two statutes that together restrict the use of photographic reproductions of currency. 18 U. S. C. §474, ¶ 6, and 18 U. S. C. § 504. The Federal District Court for the Southern District of New York held that those two statutes violate the First Amendment. Appellants ask us to overturn that judgment. I Title 18 U. S. C. § 474 was enacted during the Civil War to combat the surge in counterfeiting caused by the great increase in Government obligations issued to fund the war and the unsettled economic conditions of the time. See United States v. Raynor, 302 U. S. 540, 544-546 (1938). The sixth paragraph of that section provides criminal liability for anyone who “prints, photographs, or in any other manner makes or executes any engraving, photograph, print, or impression in the likeness of any... obligation or other security [of the United States] or any part thereof....” This complete ban on the use of photographic reproductions of currency remained without statutory exception for almost a century. However, during that time, the Treasury Department developed a practice of granting special permission to those who wished to use certain illustrations of paper money for legitimate purposes. In 1958, Congress acted to codify that practice by amending 18 U. S. C. §504 so as to permit the “printing, publishing, or importation... of illustrations of... any... obligation or other security of the United States... for philatelic, numismatic, educational, historical, or newsworthy purposes in articles, books, journals, newspapers, or albums....” 18 U. S. C. § 504 (1). In order to “prevent any possibility of the illustrations being used as an instrument of fraud,” S. Rep. No. 2446, 85th Cong., 2d Sess., 5 (1958) (hereafter S. Rep. No. 2446); H. R. Rep. No. 1709, 85th Cong., 2d Sess., 3 (1958) (hereafter H. R. Rep. No. 1709), and in an effort to avoid creating conditions which would “facilitate counterfeiting,” S. Rep. No. 2446, at 5-6; H. R. Rep. No. 1709, at 3, Congress also adopted three restrictions that the Treasury Department normally imposed on those who were granted special permission to create and use such photographs. First, the illustrations had to be in black and white. Second, they had to be undersized or oversized, i. e., less than three-fourths or more than one and one-half the size of the original. And third, the negative and plates used in making the illustrations had to be destroyed after their final authorized use. Therefore, under the present statutory scheme, a person may make photographic reproductions of currency without risking criminal liability if the reproductions meet the purpose (numismatic, philatelic, educational, historical, or newsworthy), publication (articles, books, journals, newspapers, or albums), color (black and white), and size (less than three-fourths or more than one and one-half of the size of the original) requirements of § 504(1), and if the negatives and plates are destroyed immediately after use. Over the course of the past two decades, Time, Inc., the publisher of several popular magazines, has been advised by Secret Service agents that particular photographic reproductions of currency appearing in its magazines violated the provisions of §§474 and 504. Despite the warnings, Time continued to use such reproductions. When the front cover of the February 16, 1981, issue of Sports Illustrated carried a photographic color reproduction of $100 bills pouring into a basketball hoop, a Secret Service agent informed Time’s legal department that the illustration violated federal law and that it would be necessary for the Service to seize all plates and materials used in connection with the production of the cover. The agent also asked for the names and addresses of all the printers who prepared the cover and requested an interview with a member of Time’s management. Ten days later, Time initiated the present action against the Secretary of the Treasury, the Director of the Secret Service, and others, seeking a declaratory judgment that §§ 474, ¶ 6, and 504 were unconstitutional on their face and as applied to Time, as well as an injunction preventing the defendants from enforcing or threatening to enforce the statutes. On cross-motions for summary judgment, the District Court ruled in favor of Time. 539 F. Supp. 1371 (SDNY 1982). The court first determined that Time’s use of the illustrations was speech protected by the First Amendment. It then held that § 474 could not by itself pass constitutional muster because although it was enacted to protect the Government’s compelling interest in preventing counterfeiting, it was overbroad. The court concluded that the exceptions permitted by § 504 did not save the blanket prohibition because that section presented constitutional problems of its own. Focusing on the requirements that the illustration appear in an article, book, journal, newspaper, or album and that it be used for philatelic, numismatic, educational, historical, or newsworthy purposes, the court held that § 504 could not be sustained as a valid time, place, and manner regulation because it required the Government to make distinctions based on content or subject matter. The court also determined that the purpose and publication restrictions were unconstitutionally vague, observing that “[t]he determination of what is ‘philatelic, numismatic, educational, historical, or newsworthy’ is rife with assumption and open to varying interpretation” and that “[t]he definition of a journal, newspaper or album is anyone’s game to play.” 539 F. Supp., at 1390. The court thus concluded that both § 474, ¶ 6, and § 504 were unconstitutional. Appellants sought review of the District Court’s decision by invoking this Court’s appellate jurisdiction under 28 U. S. C. § 1252. We noted probable jurisdiction, 459 U. S. 1198 (1983), in order to determine whether the two statutes could survive constitutional scrutiny. h — 1 HH The District Court correctly observed that “[bjecause of the interrelationship of Sections 474 and 504, the ultimate constitutional analysis must be directed to the impact of these sections in tandem.” 5B9 F. Supp., at 1385. The exceptions outlined in § 504 apply “[notwithstanding any other provision of this chapter,” including §474. The criminal liability imposed by §474 therefore applies only when a photographic reproduction fails to meet the requirements imposed by § 504. Thus, if the restrictions imposed by § 504 sufficiently accommodate Time’s First Amendment interests, both statutes must be upheld. We accordingly begin our inquiry by focusing on the restrictions imposed by § 504. A Appellants assert that the restrictions imposed by § 504 are valid as reasonable time, place, and manner regulations. In order to be constitutional, a time, place, and manner regulation must meet three requirements. First, it “ ‘may not be based upon either the content or subject matter of speech.’” Heffron v. International Society for Krishna Consciousness, Inc., 452 U. S. 640, 648 (1981) (quoting Consolidated Edison Co. v. Public Service Comm’n of N. Y., 447 U. S. 530, 536 (1980)). Second, it must “‘serve a significant governmental interest.’” 452 U. S., at 649 (quoting Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976)). And third, it must “‘leave open ample alternative channels for communication of the information.’” 452 U. S., at 648 (quoting Virginia Pharmacy Board, supra, at 771). The District Court concluded that the purpose requirement of § 504 could not be sustained as a valid time, place, and manner regulation because it discriminates on the basis of content. We agree. A determination concerning the newsworthiness or educational value of a photograph cannot help but be based on the content of the photograph and the message it delivers. Under the statute, one photographic reproduction will be allowed and another disallowed solely because the Government determines that the message being conveyed in the one is newsworthy or educational while the message imparted by the other is not. The permissibility of the photograph is therefore often “dependent solely on the nature of the message being conveyed.” Carey v. Brown, 447 U. S. 455, 461 (1980). Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment. Id., at 463; Police Department of Chicago v. Mosley, 408 U. S. 92, 95-96 (1972). The purpose requirement of §504 is therefore constitutionally infirm. B The District Court also concluded on vagueness and other grounds that limiting the exemption from the §474 ban to likenesses of currency contained in “publications” was itself invalid. We do not address that issue, however, because there is no evidence or suggestion that Time, a publisher of magazines, has ever, or will ever, have any difficulty in meeting that requirement. The validity of the publication requirement, standing alone, is therefore of only academic interest to Time. This Court, as a matter of both constitutional limitation and prudential restraint, does not sit to resolve issues that are of only passing concern to the parties. Time nevertheless contends that the publication requirement renders the statute overbroad and subject to challenge by a publisher such as Time. Kolender v. Lawson, 461 U. S. 352, 358-359, n. 8 (1983); New York v. Ferber, 458 U. S. 747, 768-769 (1982); Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 634 (1980); Broadrick v. Oklahoma, 413 U. S. 601, 612-616 (1973); Thornhill v. Alabama, 310 U. S. 88, 98 (1940). The essence of Time’s argument seems to be that even if publishers may constitutionally be required to conform to the other requirements of §504, that section is overbroad because it unconstitutionally precludes nonpublishers from making reproductions of currency even though they meet the other requirements of the statute. However, such an overbreadth challenge can be raised on behalf of others only when the statute is substantially overbroad, i. e., when the statute is unconstitutional in a substantial portion of the cases to which it applies. New York v. Ferber, supra, at 770; Broadrick v. Oklahoma, supra, at 615. How often the publication requirement will be used to prevent a person from utilizing an otherwise legitimate photograph is not clear from the record before us. In describing the noncounterfeiting uses to which photographic reproductions of currency could be put, the House and Senate Committees referred only to situations in which publications were involved. In light of the paucity of evidence to the contrary, we may assume that the legitimate reach of § 504 “dwarfs its arguably impermissible applications” to non-publishers. New York v. Ferber, supra, at 773. Therefore, invocation of the overbreadth doctrine is unavailing to Time. C The District Court concluded that because the purpose and publication requirements were unconstitutional, the entire regulatory scheme outlined in § 504 was invalid. This was error. First, as noted in Part II-B, the validity of the publication requirement is not an issue that can properly be addressed in this case. More importantly, even if both requirements were unconstitutional, it does not automatically follow that the entire statute must fail. In exercising its power to review the constitutionality of a legislative Act, a federal court should act cautiously. A ruling of unconstitutionality frustrates the intent of the elected representatives of the people. Therefore, a court should refrain from invalidating more of the statute than is necessary. As this Court has observed, “whenever an act of Congress contains unobjectionable provisions separable from those found to be unconstitutional, it is the duty of this court to so declare, and to maintain the act in so far as it is valid.” El Paso & Northeastern R. Co. v. Gutierrez, 215 U. S. 87, 96 (1909). Thus, this Court has upheld the constitutionality of some provisions of a statute even though other provisions of the same statute were unconstitutional. Buckley v. Valeo, 424 U. S. 1, 108 (1976); United States v. Jackson, 390 U. S. 570, 585-591 (1968); El Paso & Northeastern R. Co., supra, at 96. See also Griffin v. Breckenridge, 403 U. S. 88, 104 (1971). For the same reasons, we have often refused to resolve the constitutionality of a particular provision of a statute when the constitutionality of a separate, controlling provision has been upheld. Champlin Refining Co. v. Corporation Comm’n of Oklahoma, 286 U. S. 210, 234-235 (1932); Southwestern Oil Co. v. Texas, 217 U. S. 114, 120-121 (1910); Field v. Clark, 143 U. S. 649, 695-696 (1892). Before invalidating the entire statute, we should therefore determine whether the remaining provisions of §504 can survive in the absence of the purpose requirement. Whether an unconstitutional provision is severable from the remainder of the statute in which it appears is largely a question of legislative intent, but the presumption is in favor of severability. “ ‘Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.’” Buckley v. Valeo, supra, at 108 (quoting Champlin Refining Co. v. Corporation Comm’n of Oklahoma, supra, at 234). Accord, United States v. Jackson, supra, at 585. Utilizing this standard, we are quite sure that the policies Congress sought to advance by enacting § 504 can be effectuated even though the purpose requirement is unenforceable. One of the main purposes of the 1958 version of § 504 was to relieve the Treasury Department of the burden of processing numerous requests for special permission to use photographic reproductions of currency. The legislation was designed to “obviate the necessity of obtaining special permission from the Secretary of the Treasury in each case where the use of... illustrations [of currency was] desired.” S. Rep. No. 2446, at 6; H. R. Rep. No. 1709, at 4. At the same time, Congress was aware that in granting requests in the past, the Secretary had imposed size and color limitations in order “[t]o prevent any possibility of the illustrations being used as an instrument of fraud.” S. Rep. No. 2446, at 5; H. R. Rep. No. 1709, at 3. Congress determined that the easiest way to ease the administrative burden without undermining the Government’s efforts to prevent counterfeiting was to codify the then-existing practice, relying heavily on the Treasury Department’s opinion that “the printing in publications of black-and-white illustrations of paper money... restricted in size will not facilitate counterfeiting.” S. Rep. No. 2446, at 5-6; H. R. Rep. No. 1709, at 3. This congressional desire to ease the administrative burden without hindering the Government’s efforts to enforce the counterfeiting laws can be achieved even if the purpose requirement is eliminated from the statute. There is no indication that Congress believed that the purpose requirement either significantly eased the Treasury Department’s burden or was necessary to prevent the exception from being used as a means of circumventing the counterfeiting laws. Thus, if the size and color limitations are constitutional, Congress’ intent can in large measure be fulfilled without the purpose requirement. We therefore examine the size and color restrictions in light of the First Amendment interests asserted by Time. D In considering the validity of the color and size limitations, we once again begin with appellants’ contention that the requirements are sustainable as reasonable time, place, and manner regulations. Unlike the purpose requirement, the size and color limitations do not discriminate on the basis of content. Compliance with the color and size requirements does not prevent Time from expressing any view on any subject or from using illustrations of currency in expressing those views. More importantly, the Government does not need to evaluate the nature of the message being imparted in order to enforce the color and size limitations. Those limitations restrict only the manner in which the illustrations can be presented. They are thus similar to the decibel level restrictions upheld by this Court in Kovacs v. Cooper, 336 U. S. 77 (1949), and the size and height limitations on outdoor signs upheld by other courts, Baldwin v. Redwood City, 540 F. 2d 1360, 1368-1369 (CA9 1976), cert. denied sub nom. Leipzig v. Baldwin, 431 U. S. 913 (1977); Temple Baptist Church, Inc. v. City of Albuquerque, 98 N. M. 138, 146, 646 P. 2d 565, 573 (1982); Krych v. Village of Burr Ridge, 111 Ill. App. 3d 461, 464-466, 444 N. E. 2d 229, 232-233 (1982). Therefore, the size and color limitations pass the first of the three requirements of a valid time, place, and manner regulation. The size and color limitations also meet the second requirement in that they effectively serve the Government’s conced-edly compelling interest in preventing counterfeiting. Time contends that although the color restriction serves the Government’s interest in preventing counterfeiting, it is nonetheless invalid because it is not narrow enough. Time asserts that the color restriction applies to an illustration of currency regardless of its capacity to deceive and is thus broader than is necessary to achieve the Government’s interest in preventing counterfeiting. However, Time places too narrow a construction on the Government’s interest and too heavy a burden.on those enacting time, place, and manner regulations. The Government’s interest in preventing the color photographic reproduction of currency is not limited to its desire to prevent would-be counterfeiters from utilizing the illustration itself. The requirement that the illustration be in black and white is also designed to make it harder for counterfeiters to gain access to negatives that could easily be altered and used for counterfeiting purposes. Only one negative and plate is required for black-and-white printing. On the other hand, the color-printing process requires multiple negatives and plates. This increases a counterfeiter's access to the negatives and plates and enables him to more easily use them for counterfeiting purposes under the guise of a legitimate project. In opposing a recent bill designed to eliminate the color restriction, a Treasury Department official noted these concerns, stating that “[t]he size restriction alone does not address the problem of widespread possession of color separation negatives, nor does it impact upon the availability of a ready-made alibi for the possessors.” Statement of the Honorable Robert E. Powis, Deputy Assistant Secretary of the Treasury, before the Subcommittee on Criminal Justice, House Judiciary Committee on H. R. 4275, reprinted in App. D to Juris. Statement 43a. It is therefore sufficiently evident that the color limitation serves the Government’s interest in a substantial way. That the limitations may apply to some photographs that are themselves of no use to counterfeiters does not invalidate the legislation. The less-restrictive-alternative analysis invoked by Time has never been a part of the inquiry into the validity of a time, place, and manner regulation. It is enough that the color restriction substantially serves the Government’s legitimate ends. The propriety of the size limitation is even clearer. The size limitation is a reasonable and sufficiently precise way of ensuring that the illustrations themselves do not have the capacity to deceive the unwary and inattentive. Indeed, Time does not advance any serious challenge to the legitimacy of that requirement. The color and size limitations are therefore reasonable manner regulations that can constitutionally be imposed on those wishing to publish photographic reproductions of currency. Because the provisions of §474 are of real concern only when the limitations of § 504 are not complied with, § 474 is also constitutional. H-H J — ( h — i The District Court correctly determined that the purpose requirement of § 504 is unconstitutional. However, it erred in failing to consider the validity of the remaining portions of the statute that applied to Time. Because the color and size limitations are valid, neither §474 nor §504 is unconstitutional on its face or as applied to Time. The judgment of the District Court is accordingly affirmed with respect to the purpose requirement and reversed with respect to the color and size limitations. It is so ordered. Congress first made it a crime to “print, photograph, or in any other manner execute” an impression “in the likeness” of any United States security in 1862. Act of Feb. 25,1862, ch. 33, §§ 6, 7,12 Stat. 347-348. Two years later, Congress broadened the prohibition to include the making of any such print or photograph. Act of June 30,1864, ch. 172, § 11,13 Stat. 221-222. The statute was reenacted, with few changes, as § 5430 of the Revised Statutes of 1878, and again as § 150 of the codification of 1909. Act of Mar. 4, 1909, ch. 321, 35 Stat. 1116. The statute was reenacted once again with minor changes in the 1948 recodification of the penal laws. Ch. 645, 62 Stat. 706. Section 504 was originally enacted in 1923 to authorize certain illustrations of postage and revenue stamps. Act of Mar. 3, 1923, ch. 218, 42 Stat. 1437. The 1958 amendment was a wholesale revision of the statute. In full, § 504(1) provides: “Notwithstanding any other provision of this chapter, the following are permitted: “(1) the printing, publishing, or importation, or the making or importation of the necessary plates for such printing or publishing, of illustrations of— “(A) postage stamps of the United States, “(B) revenue stamps of the United States, “(C) any other obligation or other security of the United States, and “(D) postage stamps, revenue stamps, notes, bonds, and any other obligation or other security of any foreign government, bank, or corporation for philatelic, numismatic, educational, historical, or newsworthy purposes in articles, books, journals, newspapers, or albums (but not for advertising purposes, except illustrations of stamps and paper money in philatelic or numismatic advertising of legitimate numismatists and dealers in stamps or publishers of or dealers in philatelic or numismatic articles, books, journals, newspapers, or albums). Illustrations permitted by the foregoing provisions of this section shall be made in accordance with the following conditions— “(i) all illustrations shall be in black and white, except that illustrations of postage stamps issued by the United States or by any foreign government may be in color; “(ii) all illustrations (including illustrations of uncanceled postage stamps in color) shall be of a size less than three-fourths or more than one and one-half, in linear dimension, of each part of any matter so illustrated which is covered by subparagraph (A), (B), (C), or (D) of this paragraph, except that black and white illustrations of postage and revenue stamps issued by the United States or by any foreign government and colored illustrations of canceled postage stamps issued by the United States may be in the exact linear dimension in which the stamps were issued; and “(iii) the negatives and plates used in making the illustrations shall be destroyed after their final use in accordance with this section.” In addition to the Secretary of the Treasury and the Director of the Secret Service, the defendants included the Attorney General, the United States Attorney for the Southern District of New York, and the Special Agent in charge of the Secret Service’s New York Field Office. Appellants do not defend the constitutionality of the purpose requirement as written. Brief for Appellants 27-28; Tr. of Oral Arg. 10-14. They ask us to construe the statute narrowly in order to avoid the constitutional conflict, contending that the references to the various purposes are merely descriptive and illustrative, rather than prescriptive and mandatory. However, appellants are unable to suggest any meaningful interpretation of the purpose requirement that would survive constitutional scrutiny. If the requirement means only that the photograph must serve some purpose, it is meaningless because every photograph serves some purpose. On the other hand, if the requirement means that the photograph must serve a purpose similar to those enumerated in the statute, it requires the type of content-based scrutiny that the First Amendment forbids. Assuming that Congress intended the language to have some meaning, we conclude that the entire purpose requirement is unconstitutional. In light of that ruling, there is no need for us to consider Time’s argument that the purpose requirement is also unconstitutionally vague. Justice Brennan seems to believe that we hold that the publication requirement can constitutionally be used to prohibit nonpublishers from ever using photographic reproductions of currency since much of the discussion in his opinion concerns the constitutionality of the publication requirement. Post, at 679-690. As clearly stated above, and as we reiterate here, we express no opinion as to the validity of the publication requirement since Time has failed to show that that requirement affects its conduct in any way. It may well be that a person could not constitutionally be prohibited from using a reproduction which conformed with every portion of the statute other than the publication requirement. But that is an issue which must be raised by someone who has been, or will be, precluded from using such a reproduction for that reason. Justice Brennan also suggests that we should decide whether the publication requirement is invalid on the basis that it is inextricably intertwined with the unconstitutional purpose requirement. However, Time has not made that argument. Time argues that the publication requirement is unconstitutional because it is vague and overbroad, not that it should be struck down because Congress would never have included the requirement in the statute in the absence of the purpose requirement. Given the fact that we hold that, even in the absence of both the purpose and publication requirements, the color and size requirements can constitutionally be applied to Time, infra, at 656, 658-659, and that Time has made no showing that the validity of the publication requirement by itself is of any interest to it, we see no need to reach out and decide the latter issue on our own. The Committees observed that photographic reproductions of currency could be used for many legitimate purposes. “Publishers of textbooks often desire to use illustrations of United States savings bonds and postal money orders, for example, in school textbooks. Collectors of old paper money likewise wish to use illustrations of such money in articles relating to their issue and in collector’s catalogs. Historians similarly want to use illustrations of paper money to picture the currency in circulation during a particular historical period. Newspapers quite often publish pictures of paper money or checks in connection with news articles....” S. Rep. No. 2446, at 5; H. R. Rep. No. 1709, at 3. Time cites one instance in which a person may have been prevented from utilizing a photographic reproduction of currency because it failed to appear in one of the enumerated publications. Wagner v. Simon, 412 F. Supp. 426, 431, n. 6 (WD Mo. 1974), aff’d, 534 F. 2d 833 (CA8 1976). But one arguably unconstitutional application of the statute does not prove that it is substantially overbroad, particularly in light of the numerous instances in which the requirement will easily be met. See n. 7, supra. Justice Brennan maintains that we misconstrue the overbreadth doctrine by focusing on the one prior instance in which the statute was arguably applied in an unconstitutional manner. Post, at 684. However, we cite only the one example because that is the only concrete example brought to our attention by Time. There is no evidence that the Government has ever, or will ever, interpret the statute so as to prevent Polaroid snapshots of children holding currency or any of the other hypothetical activities conjured up in Time’s brief. It is important to remember that the overbreadth doctrine operates as an exception to the normal rules of standing. Thus, it is up to the party invoking the doctrine to demonstrate “a realistic danger that the [ordinance] will significantly compromise recognized First Amendment protections of parties not before the Court.” City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 801 (1984) (emphasis added). Justice Brennan states that we should remand the case to provide Time with an opportunity to make that showing, suggesting that Time had no idea that such a showing would be required. Post, at 680, n. 18. This ignores the fact that it was Time, not this Court, which first argued that it had standing to challenge the publication requirement because of the overbreadth doctrine. See Brief for Appellee 41, n. 29 (“The Government... argues that Time has no standing to raise this issue.... This strategy... flies in the face of traditional First Amendment overbreadth analysis, under which Time is permitted to challenge § 504 on behalf of those to whom the statute would be unconstitutionally applied”). Justice Brennan seems to misconceive the premise upon which our argument is based as he goes to great lengths to establish that the publication requirement and the purpose requirement “are so completely intertwined as to be plainly inseverable....” Post, at 677. See post, at 665-677. Our severability argument proceeds on the premise that both the purpose and publication requirements are unconstitutional. Thus, our entire discussion is directed at whether the color and size requirements can survive on their own. Justice Brennan seems to agree that the purpose requirement does not significantly advance Congress’ express interest in easing the Treasury Department’s administrative burden. Post, at 676-677, n. 14. Similarly, he does not dispute our conclusion that the statute can serve the other purpose expressed by Congress — to ensure that the exception would not permit counterfeiters to circumvent the law — even in the absence of the purpose requirement. Instead, he argues that Congress had some other, paramount interest in mind when it enacted the statute and that that interest cannot be achieved once the purpose requirement is struck down. This overriding congressional interest, according to Justice Brennan, is to “permit illustrations for purposes Congress considered worthwhile.” Post, at 673. However, nothing in the legislative history of the 1958 amendment indicates that Congress’ overriding concern in expanding the purpose requirement was to promote certain worthwhile activities. There is no discussion in the legislative history concerning which activities were considered to be most worthwhile or why some activities were more worthwhile than others. Instead, the statute referred to illustrations for numismatic, educational, historical, and newsworthy purposes only because those were the types of activities for which the Treasury Department had received exemption requests in the past. “The Treasury Department receives numerous requests for special permission to use illustrations of paper money... for various legitimate purposes. Publishers of textbooks often desire to use illustrations of United States savings bonds and postal money orders, for example in school textbooks. Collectors of old paper money likewise wish to use illustrations in articles relating to their issue and in collector’s catalogs. Historians similarly want to use illustrations of paper money to picture the currency in circulation during a particular historical period. Newspapers quite often publish pictures of paper money or checks in connection with news articles, usually because of ignorance of the statutory prohibitions against the use of such illustrations. “Paragraph (1) of section 504... as it would be amended by the bill, will specifically permit such illustrations for numismatic, educational, historical, and newsworthy purposes and will obviate the necessity of obtaining special permission from the Secretary of the Treasury in each case where the use of such illustrations is desired.” S. Rep. No. 2446, at 5-6; H. R. Rep. No. 1709, at 3-4 (emphasis added). While the legislation undoubtedly benefits those who engage in the listed activities, there is no indication that Congress enacted the legislation out of special concern for such individuals. Instead, as Time itself points out, Congress apparently acted “in response to the Treasury Department’s desire to be rid of an administrative nuisance.” Brief for Appellee 8. As noted above, that interest and the other interest expressed by Congress when it enacted the amendment can adequately be served even in the absence of the purpose requirement. Time does not challenge the constitutionality of the requirement that the negatives and plates be destroyed immediately after the final authorized use. Id., at 9, n. 11. Justice Brennan argues that the color restriction at issue in this ease is invalid because one of the interests served by that restriction — prohibiting counterfeiters from gaining access to color negatives and plates and from having an instant alibi for possessing those items — was not adequately expressed in the 1958 legislative history. Post, at 688-690, n. 27. Although Congress never expressly articulated this specific interest when it enacted the legislation in 1958, it did state that in imposing the size and color restrictions, it was relying heavily on the Treasury Department’s opinion that the restrictions would adequately ensure that the statutory exception would not “facilitate counterfeiting.” S. Rep. No. 2446, at 5-6; H. R. Rep. No. 1709, at 3. Justice Brennan does not dispute that this interest is furthered by the color requirement’s effect of limiting the availability of negatives and plates to would-be counterfeiters. Instead, he argues that the particular negatives and plates used by Time would be of little assistance to counterfeiters and that the asserted interest is adequately served by other provisions of the statute. Post, at 688-690, n. 27. Neither of these arguments is persuasive. First, in determining whether a time, place, and manner regulation substantially serves the Government’s interest, the effectiveness of the regulation should not be measured solely by the adverse consequences of exempting a particular plaintiff from the regulation. Clark v. Community for Creative Non-Violence, ante, at 296-297; Heffron v. International Society for Krishna Consciousness, Inc., 452 U. S. 640, 652-653 (1981). If Time is exempted from the color requirement, so must all others who wish to use such reproductions. While Time may consistently use negatives and plates that are of little use to counterfeiters, there is no way of ensuring that others will adhere to that practice. Second, the fact that the Government’s interest is served to some degree by the requirement that the negatives and plates be destroyed after their final use does not render the color requirement super Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

C

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Per Curiam. The judgment is reversed. Cassell v. Texas, 339 U. S. 282. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Brennan delivered the opinion of the Court. Section 11 of Mississippi’s Regulation Governing the Production and Sale of Milk and Milk Products in Mississippi, promulgated by the Mississippi State Board of Health (1967), provides, among other things, that “[m]ilk and milk products from . . . [another State] may be sold in . . . Mississippi. . . provided . . . that the regulatory agency [of the other State that] has jurisdiction accepts Grade A milk and milk products produced and processed in Mississippi on a reciprocal basis.” The question presented by this case is whether Mississippi, consistently with the Commerce Clause, Art. I, § 8, cl. 3, of the Constitution, may, pursuant to this regulation, constitutionally deny a Louisiana milk producer the right to sell in Mississippi milk satisfying Mississippi’s health standards solely because the State of Louisiana has not signed a reciprocity agreement with the State of Mississippi as required by the regulation. A three-judge District Court in the Southern District of Mississippi rejected appellant’s Commerce Clause challenge, holding that “[sjection 11 is within the permissible limits of state police powers even though it incidentally or indirectly involves or burdens interstate commerce.” 383 F. Supp. 569, 575 (1974). We noted probable jurisdiction of appellant’s appeal, 421 U. S. 961 (1975). We reverse. I Appellant, The Great Atlantic & Pacific Tea Co., Inc. (A&P), a Maryland corporation, owns and operates 38 outlets in Mississippi that engage in the retail sale of milk and milk products. A&P also operates at Kent-wood, La., a plant for the processing of raw milk into milk and milk products for delivery to its retail outlets. A&P invested over $1 million in the Kentwood processing facilities, intending that part of the dairy products produced at the facility would supply its retail outlets in Mississippi. However, A&P’s application on August 28, 1972, to the Mississippi State Board of Health for a permit to distribute the products from its Kentwood facility for sale in Mississippi was denied by the Board because A&P failed to submit the reciprocal agreement between Louisiana and Mississippi required by § 11. Appellant thereupon brought this action. Evidence was stipulated before the District Court which conclusively established that the milk produced at the Kentwood plant fully complied with the requirements of § 11 in all respects save the required reciprocity agreement. The Kentwood plant had received milk sanitation-compliance ratings in excess of 90% in all respects following each inspection by Louisiana officials. These sanitation-compliance ratings were published in the Sanitation Compliance and Enforcement Ratings of Interstate Milk Shippers, a list compiled by the Public Health Service and the Food and Drug Administration of the United States Department of Health, Education, and Welfare (HEW), which includes only processors receiving compliance ratings from state officials who have been certified by the Public Health Service. Further, the parties stipulated that the Supervisor of the Milk Control Program of the Mississippi State Board of Health testified, on the basis of an inspection by Louisiana officials of the Kentwood plant reported on an HEW form, that Kentwood milk would be acceptable in Mississippi as the Louisiana regulations were substantially equivalent to Mississippi’s within the meaning of §11. Thus only the lack of a reciprocity agreement between the two States prevented appellant from marketing its Kentwood milk at its Mississippi retail outlets. II Mississippi’s answer to appellant’s Commerce Clause challenge is that the reciprocity requirement of § 11 is a reasonable exercise of its police power over local affairs, designed to assure the distribution of healthful milk products to the people of its State. We begin our analysis by again emphasizing that “[t]he very purpose of the Commerce Clause was to create an area of free trade among the several States.” McLeod v. J. E. Dilworth Co., 322 U. S. 327, 330 (1944). And at least since Cooley v. Board of Wardens, 12 How. 299 (1852), it has been clear that “the Commerce Clause was not merely an authorization to Congress to enact laws for the protection and encouragement of commerce among the States, but by its own force created an area of trade free from interference by the States. . . . [T]he Commerce Clause even without implementing legislation by Congress is a limitation upon the power of the States.” Freeman v. Hewit, 329 U. S. 249, 252 (1946). It is no less true, of course, that under our constitutional scheme the States retain “broad power” to legislate protection for their citizens in matters of local concern such as public health, H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 531-532 (1949), and that not every exercise of local power is invalid merely because it affects in some way the flow of commerce between the States. Freeman v. Hewit, supra, at 253; Milk Control Board v. Eisenberg Farm Products, 306 U. S. 346, 351-352 (1939). Rather, in areas where activities of legitimate local concern overlap with the national interests expressed by the Commerce Clause — where local and national powers are concurrent— the Court in the absence of congressional guidance is called upon to make “delicate adjustment of the conflicting state and federal claims,” H. P. Hood & Sons, Inc. v. Du Mond, supra, at 553 (Black, J., dissenting), thereby attempting “the necessary accommodation between local needs and the overriding requirement of freedom for the national commerce.” Freeman v. Hewit, supra, at 253. In undertaking this task the Court, if it finds that a challenged exercise of local power serves to further a legitimate local interest but simultaneously burdens interstate commerce, is confronted with a problem of balance: “Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Cement Co. v. Detroit, 362 U. S. 440, 443. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.” Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970). Adjudication of Commerce Clause challenges to the validity of local milk regulations burdening interstate milk is not a novel experience for this Court. See, e. g., Polar Ice Cream & Creamery Co. v. Andrews, 375 U. S. 361 (1964); Dean Milk Co. v. Madison, 340 U. S. 349 (1951); H. P. Hood & Sons, Inc. v. Du Mond, supra; Milk Control Board v. Eisenberg Farm Products, supra; Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511 (1935). The District Court seems to have concluded that Dean Milk Co. v. Madison, supra, while especially pertinent to a decision upon the validity of the reciprocity provision of § 11, did not require the conclusion that the requirement rendered the section violative of the Commerce Clause. We disagree. Dean Milk involved a Madison, Wis., ordinance that forbade the sale of milk in the city unless it had been pasteurized and bottled at an approved plant located within five miles of the center of the city. Although agreeing that sanitary regulation of milk originating in remote areas is a “ 'matter . . . which may appropriately be regulated in the interest of the safety, health and well-being of local communities,'” 340 U. S., at 353, the Court held that the Madison ordinance could not withstand challenge under the Commerce Clause, “even in the exercise of [the city’s] unquestioned power to protect the health and safety of its people, if reasonable nondiscriminatory alternatives, adequate to conserve legitimate local interests, are available.” Id., at 354. Inquiry whether adequate and less burdensome alternatives exist is, of course, important in discharge of the Court’s task of “accommodation” of conflicting local and national interests, since any “ ‘realistic’ judgment” whether a given state action “unreasonably” trespasses upon national interests must, of course, consider the “consequences to the state if its action were disallowed.” Dowling, Interstate Commerce and State Power, 27 Va. L. Rev. 1, 22 (1940). Dean Milk identified as adequate to serve local interests, and yet less burdensome to the flow of interstate commerce, the alternatives of either inspection of the distant plants by city officials, or reliance on milk ratings obtained by officials in localities having standards as high as those of Madison, the enforcement of which could be verified by reliance on the United States Public Health Service’s system of checking local ratings. This latter alternative reflected the recommendation of the United States Public Health Service based on § 11 of the Model Milk Ordinance proposed by the Service, Dean Milk, supra, at 355 n. 5, that the local “health officer approve milk or milk products from distant points without his inspection if they are produced and processed under regulations equivalent to those of this ordinance, and if the milk or milk products have been awarded by the State control agency a rating of 90 percent or more on the basis of the Public Health Service rating method.” The Illinois producer’s milk involved in Dean Milk was processed in plants inspected by the public health authorities in Chicago on the basis of the Public Health Service rating method. The District Court in the instant case acknowledged that “[i]nterestingly enough Section 11 of the Mississippi regulation, but for the reciprocal clause, is identical in every material aspect to Section 11 of the U. S. Pvblic Health Service Ordinance” discussed in Dean Milk. 383 F. Supp., at 574. Accordingly, the District Court concluded that § 11 was “free of any constitutional infirmity,” “insofar as it follows Section 11 of the U. S. Public Health Service Milk Ordinance.” Id., at 575. The District Court held further that the reciprocity clause of Mississippi’s § 11 — not found in HEW’s proposed Model Milk Ordinance § 11 — did not constitute a sufficient burden on interstate commerce to violate the Commerce Clause. Mississippi, said the District Court, may constitutionally “enforce its own standards, either through inspections at the source of the processed milk, although such may require o’’t-of-state inspections, or through reciprocal agreements . . .” and “[a]s long as Mississippi mutually exchanges standards of inspection with other states, there can be no burden on interstate trade.” 383 F. Supp., at 575. Further, said the District Court, “Mississippi adopted the reciprocity clause to avoid the expense of out-of-state inspections,” id., at 576, and offers reciprocity to all States without discrimination. The fallacy in the District Court’s reasoning is that it attached insufficient significance to the interference effected by the clause upon the national interest in freedom for the national commerce, and attached too great significance to the state interests purported to be served by the clause. Although not in terms an absolute and universal bar to sales of out-of-state milk, which was the effect of the Madison ordinance invalidated in Dean Milk, the barrier of the reciprocity clause to sales of out-of-state milk in Mississippi has in this case also “in practical effect exclude[d] from distribution in [Mississippi] wholesome milk produced ... in [Louisiana].” 340 U. S., at 354. Only state interests of substantial importance can save § 11 in the face of that devastating effect upon the free flow of interstate milk. Mississippi’s contention that the reciprocity clause serves its vital interests in maintaining the State’s health standards borders on the frivolous. The clause clearly does not do so in the sense of furthering Mississippi’s established milk quality standards. For, according to appellee, “§ 11 covenants that Mississippi will do the inspections, will certify them, and will accept a standard below that applicable to domestic producers if the forwarding state will do the same.” Brief for'Appellee 9. Thus, even if Louisiana’s standards were lower than Mississippi’s, the clause permits Louisiana milk to be admitted to Mississippi if Louisiana enters into á reciprocity agreement. The reciprocity clause thus disserves rather than promotes any higher Mississippi milk quality standards. Therefore this is a case where the “burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U. S., at 142. Mississippi next argues that the reciprocity clause somehow enables Mississippi to assure itself that the reciprocating State’s (here Louisiana’s) health standards are the “substantial equivalent” of Mississippi’s. But even if this were true, and the premise may be disputed, there are means adequate to serve this interest that are substantially less burdensome on commerce, and, therefore, Dean Milk teaches that the burden of the mandatory reciprocity clause cannot be justified in view of the character of the local interest and these available methods of protecting it. In the absence of adequate assurance that the standards of a sister State, either as constituted or as applied, are substantially equivalent to its own, Mississippi has the obvious alternative of applying its own standards of inspection to shipments of milk from a nonreciprocating State. Dean Milk, 340 U. S., at 355, expressly supported the adequacy of this alternative: “[S]uch inspection is readily open to it without hardship for it could charge the actual and reasonable cost of such inspection to the importing producers and processors.” Cf. Evansville-Vanderburgh Airport Au thority District v. Delta Airlines, Inc., 405 U. S. 707 (1972). Ill Mississippi argues that apart from the putative health-related interests served by the clause, the reciprocity requirement is in effect a free-trade provision, advancing the identical national interest that is served by the Commerce Clause. The argument is two-pronged. First, Mississippi argues that the reciprocity requirement serves to help eliminate “hypertechnical” inspection standards that vary between different States. Such hypertechnical standards are said to burden commerce by requiring costly duplicative or out-of-state inspection in instances where, for truly health-related purposes, the standards of the different States are “substantially equivalent.” The Court has recognized that mutually beneficial objectives may be promoted by voluntary reciprocity agreements, and that the existence of such an agreement between two or more States is not a per se violation of the Commerce Clause of which citizens of nonreciprocating States who do not receive the benefits conferred by the agreement may complain. See Kane v. New Jersey, 242 U. S. 160, 167-168 (1916); cf. Bode v. Barrett, 344 U. S. 583 (1953). But we have not held that acceptance of offered reciprocity is required from other States, see Kane v. New Jersey, supra, at 168, or that a State may threaten complete isolation as the alternative to acceptance of its offer of reciprocity. Mississippi may offer reciprocity to States with substantially equivalent health standards, and insist on enforcement of its own, somewhat different, standards as the alternative. But Mississippi may not use the threat of economic isolation as a weapon to force sister States to enter into even a desirable reciprocity agreement. The second prong of appellee’s argument that the reciprocity requirement promotes trade between the States draws upon Mississippi’s allegations that Louisiana is itself violating the Commerce Clause by refusing to admit milk produced in Mississippi. Mississippi asserts that Louisiana has refused reciprocity with Mississippi in bad faith, and in fact has erected economic barriers to the sale of Mississippi milk in Louisiana under the guise of health and inspection regulations. Hence, the reciprocity agreement, it is argued, is a legitimate means by which Mississippi may seek to gain access to Louisiana markets for its own producers as a condition to allowing Louisiana milk to be sold in Mississippi. We cannot agree. First, to the extent, if any, that Louisiana is unconstitutionally burdening the flow of milk in interstate commerce by erecting and enforcing economic trade barriers to protect its own producers from competition under the guise of health regulations, the Commerce Clause itself creates the necessary reciprocity: Mississippi and its producers may pursue their constitutional remedy by suit in state or federal court challenging Louisiana’s actions as violative of the Commerce Clause. Second, to the extent that Louisiana is legitimately exercising its local powers in the interest of the health of its citizens by refusing reciprocity and consequently the admission of milk deemed in good faith by state officials to be of insufficient quality, Mississippi is not privileged under the Commerce Clause to force its own judgments as to an adequate level of milk sanitation on Louisiana at the pain of an absolute ban on the interstate flow of commerce in milk. However available such methods in an international system of trade between wholly sovereign nation states, they may not constitutionally be employed by the States that constitute the common market created by the Framers of the Constitution. To allow Mississippi to insist that a sister State either sign a reciprocal agreement acceptable to Mississippi or else be absolutely foreclosed from exporting its products to Mississippi would plainly “invite a multiplication of preferential trade areas destructive of the very purpose of the Commerce Clause.” Dean Milk, 340 U. S., at 356. No “parochial legislative polic[y],” H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S., at 538, could be more precisely calculated to open “the door ... to rivalries and reprisals that were meant to be averted by subjecting commerce between the states to the power of the nation.” Baldwin v. G. A. F. Seelig, Inc., 294 U. S., at 522. “The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.” Id., at 523. The mandatory reciprocity provision of § 11, insofar as justified by the State as an economic measure, is “precisely the kind of hindrance to the introduction of milk from other States . . . condemned as an ‘unreasonable clog upon the mobility of commerce. ... [It is] hostile in conception as well as burdensome in result.’ ” Polar Ice Cream & Creamery Co. v. Andrews, 375 U. S., at 377. Accordingly, we hold that the mandatory character of the reciprocity requirement of § 11 unduly burdens the free flow of interstate commerce and cannot be justified as a permissible exercise of any state power. The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Mr. Justice Stevens took no part in the consideration or decision of this case. Section 11 provides in full text: “Milk and milk products from points beyond the limits of routine inspection of the state of Mississippi or its police jurisdiction, may be sold in the state of Mississippi or its police jurisdiction, provided they are produced, pasteurized, and labeled under regulations which are substantially equivalent to this' Regulation and have been awarded an acceptable milk sanitation compliance rating of 90 percent or above made by a state milk sanitation rating officer certified by the U. S. Public Health Service, and Provided further, that the regulatory agency who [sic] has jurisdiction accepts Grade A milk and milk products produced and processed in Mississippi on a reciprocal basis. The health authority is authorized to require and conduct laboratory analysis and investigations to determine if the milk and milk products are in compliance with this Regulation.” Record 102. The Commerce Clause, U. S. Const., Art. I, § 8, cl. 3, provides: “The Congress shall have power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Appellant also alleged a claim for relief under the Equal Protection Clause of the Fourteenth Amendment. In view of our conclusion we have no occasion to address that claim. A&P attempted but failed to obtain the required reciprocity agreement from the Louisiana health authorities. It was informed by Louisiana health officials that Louisiana had not entered into a reciprocity agreement with any State, that in the opinion of Louisiana officials processed milk from Mississippi did not meet Louisiana health standards, and that Mississippi-processed milk from plants that met Louisiana standards would be admitted for sale in Louisiana. Record 15. Appellee makes no contention that there are alternative means by which appellant’s milk may be judged qualified under Mississippi standards and thereby admitted for sale in the State. Indeed, appellee states that without reciprocity, milk from the Kentwood plant must be subjected to on-site inspection according to Mississippi health standards, and that Mississippi currently makes no provision for out-of-state inspection by Mississippi officials. Brief for Appellee 15-16, n. 1. Adjudication entails “emphasis upon the concrete elements of the situation that concerns both state and national interests. The particularities of a local statute touch its special aims and the scope of their fulfillment, the difficulties which it seeks to adjust, the price at which it does so. . . . [P]raetical considerations, however screened by doctrine, underlie resolution of conflicts between state and national power.” F. Frankfurter, The Commerce Clause Under Marshall, Taney and Waite 33-34 (1937). “[I]t seems clear that those interferences [with interstate commerce] not deemed forbidden are to be sustained . . . because a consideration of all the facts and circumstances, such as the nature of the regulation, its function, the character of the business involved and the actual effect on the flow of commerce, lead to the conclusion that the regulation concerns interests peculiarly local and does not infringe the national interest in maintaining the freedom of commerce across state lines.” Di Santo v. Pennsylvania, 273 U. S. 34, 44 (1927) (Stone, J., dissenting). The parties stipulated in the District Court that the net annual cost to A&P incurred by its inability to use the product of its Kent-wood facility and its consequent reliance on alternative sources of supply was $195,700. “If Louisiana will not give trust and reliance to Mississippi’s conduct of the inspections, then Mississippi is loath to accept the same Louisiana procedures, out of a regard for the health and welfare of her own citizens.” Brief for Appellee 11. A sample reciprocity agreement acceptable to Mississippi is the following: “AN ACCEPTABLE AGREEMENT TO MISSISSIPPI STATE BOARD OF HEALTH REGARDING RECIPROCITY IN THE MOVEMENT OF GRADE A MILK AND MILK PRODUCTS IN INTERSTATE SHIPMENT “1. Each state shall be responsible for inspecting, sampling, and enforcing its regulations that apply to the dairies and milk plants located in its respective state, provided each state’s regulation is substantially equivalent. “2. The appropriate state regulatory agency shall certify to the receiving state agency that the dairies and plants involved in interstate shipment hold a valid Grade A permit from said agency. “3. Milk and milk products received into each state shall meet the chemical and bacteriological standards, labeling and delivery vehicle requirements of the receiving state. “4. Public health sanitation ratings shall be made by certified rating officials of the respective states of any milk supply involved in interstate shipment. The ratings shall be submitted to the FDA-PHS to be included and maintained on the Interstate Milk Shippers List and published by the FDA-PHS so that they can make spot check ratings of the supplies involved to determine if satisfactory sanitation surveillance is being carried out by the respective state. All sanitation ratings shall be 90% in compliance or above in order to be acceptable to the respective states. “5. The regulatory agencies of each state shall sign reciprocity agreements containing the above stipulations.” On this record, we are not presented with and need not decide the question of the constitutionality under the Commerce Clause of a State's insistence on reinspection of milk originating in a foreign State where that insistence is not prompted by a health-related need to assure adequate standards but rather is prompted solely as a retaliatory measure because the foreign State refuses to accept the receiving State’s standards as adequate. Mississippi’s regulations call for inspection of “each dairy farm, milk hauler, milk plant, receiving station, and transfer station whose milk or milk products are intended for consumption within the State of Mississippi” as a condition to the issuance of a permit, and for periodic inspection thereafter. Miss. Reg. § 5, Record 77. Although appellant’s Kentwood plant is, of course, located outside Mississippi and would require out-of-state inspection by Mississippi officials, only six of 105 dairy farms from which A&P purchases raw milk are located outside Mississippi. Plaintiff’s Exhibit 1, and Exhibit A. Appellant represents that it has already offered to pay the reasonable expenses of required out-of-state inspection, Brief for Appellant 7, although evidence of that offer does not appear in the record. “[W]e say this regulation is wiser and more productive for interstate commerce through all the States than having these picayune problems of how many square feet of floor, space is in the milk parlor, or what the temperature of the milk is when it goes to the cooling truck.” Tr. of Oral Arg. 20. A&P agrees that reciprocity among States is a “laudable goal. Reciprocity, by eliminating hyper-technical standards peculiar to one state, may aid the free flow of milk.” Jurisdictional Statement 9. We are not called upon to decide in this case whether or at what point the diversionary effects upon trade occasioned by a given reciprocity agreement (even though voluntary and nondiscriminatory) between some but not all States might be such as to constitute an impermissible burdening of the national interests embodied in the Commerce Clause, or the Compact Clause. Cf. Bode v. Barrett, 344 U. S., at 586; Wharton v. Wise, 153 U. S. 155, 171 (1894). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Marshall delivered the opinion of the Court. This case presents the issue whether, in diversity actions, federal courts must apply a state statute that imposes a fixed penalty on appellants who obtain stays of judgment pending unsuccessful appeals. I Respondents brought this tort action in Alabama state court to recover damages for injuries sustained in a motorcycle accident. Petitioner removed the case to a Federal District Court having diversity jurisdiction. A jury trial resulted in a judgment of $800,000 for respondent Alan Woods and $5,000 for respondent Cara Woods. Petitioner posted bond to stay the judgment pending appeal, and the Court of Appeals affirmed without modification. 768 F. 2d 1287 (CA11 1985). Respondents then moved in the Court of Appeals, pursuant to Ala. Code § 12-22-72 (1986), for imposition of that State’s mandatory affirmance penalty of 10% of the amount of judgment. Petitioner challenged the application of this statute as violative of the equal protection and due process guarantees of the Fourteenth Amendment and as “a procedural rule . . . inapplicable in federal court under the doctrine of Erie Railroad Company v. Tompkins, 304 U. S. 64 (1938) and its progeny.” App. to Pet. for Cert. A-5. The Court of Appeals summarily granted respondents’ motion to assess the penalty and subsequently denied a petition for rehearing. The parties have stipulated that the final judgment has been paid, except for the $30,500 statutory affirmance penalty, which petitioner has withheld pending proceedings in this Court. We granted certiorari to consider the equal protection and due process challenges as well as the Erie claim. 475 U. S. 1080 (1986). Because we conclude that the Alabama statute imposing a mandatory affirmance penalty has no application in federal diversity actions, we decline to reach the Fourteenth Amendment issues. l — l I — l The Alabama statute provides in relevant part: ‘When a judgment or decree is entered or rendered for money, whether debt or damages, and the same has been stayed on appeal by the execution of bond, with surety, if the appellate court affirms the judgment of the court below, it must also enter judgment against all or any of the obligors on the bond for the amount of the affirmed judgment, 10 percent damages thereon and the costs of the appellate court. . . .” Ala. Code § 12-22-72 (1986). As set forth in the statute, then, a combination of three conditions will automatically trigger the 10% penalty: (1) the trial court must enter a money judgment or decree, (2) the judgment or decree must be stayed by the requisite bond, and (3) the judgment or decree must be affirmed without substantial modification. E. g., Chapman v. Rivers Construction Co., 284 Ala. 633, 644-645, 227 So. 2d 403, 414-415 (1969). The purposes of the mandatory affirmance penalty are to penalize frivolous appeals and appeals interposed for delay, Montgomery Light & Water Power Co. v. Thombs, 204 Ala. 678, 684, 87 So. 205, 211 (1920), and to provide “additional damages” as compensation to the appellees for having to suffer the ordeal of defending the judgments on appeal. Birmingham v. Bowen, 254 Ala. 41, 46-47, 47 So. 2d 174, 179-180 (1950). Petitioner contends that the statute’s underlying purposes and mandatory mode of operation conflict with the purposes and operation of Rule 38 of the Federal Rules of Appellate Procedure, and therefore that the statute should not be applied by federal courts sitting in diversity. Entitled “Damages for delay,” Rule 38 provides: “If the court of appeals shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee.” See also 28 U. S. C. § 1912. Under this Rule, “damages are awarded by the court in its discretion in the case of a frivolous appeal as a matter of justice to the appellee and as a penalty against the appellant.” Advisory Committee’s Notes on Fed. Rule App. Proc. 38, 28 U. S. C. App., p. 492. In Hanna v. Plumer, 380 U. S. 460 (1965), we set forth the appropriate test for resolving conflicts between state law and the Federal Rules. The initial step is to determine whether, when fairly construed, the scope of Federal Rule 38 is “sufficiently broad” to cause a “direct collision” with the state law or, implicitly, to “control the issue” before the court, thereby leaving no room for the operation of that law. Walker v. Armco Steel Corp., 446 U. S. 740, 749-750, and n. 9 (1980); Hanna, supra, at 471-472. The Rule must then be applied if it represents a valid exercise of Congress’ rulemaking authority, which originates in the Constitution and has been bestowed on this Court by the Rules Enabling Act, 28 U. S. C. §2072. Hanna, 380 U. S., at 471-474. The constitutional constraints on the exercise of this rulemaking authority define a test of reasonableness. Rules regulating matters indisputably procedural are a priori constitutional. Rules regulating matters “which, though falling within the uncertain area between substance and procedure, are rationally capable of classification as either,” also satisfy this constitutional standard. Id., at 472. The Rules Enabling Act, however, contains an additional requirement. The Federal Rule must not “abridge, enlarge or modify any substantive right. . . .” 28 U. S. C. §2072. The cardinal purpose of Congress in authorizing the development of a uniform and consistent system of rules governing federal practice and procedure suggests that Rules which incidentally affect litigants’ substantive rights do not violate this provision if reasonably necessary to maintain the integrity of that system of rules. See Hanna, supra, at 464-465; Missis sippi Publishing Corp. v. Murphree, 326 U. S. 438, 445-446 (1946); 19 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4509, pp. 145-146 (1982). Moreover, the study and approval given each proposed Rule by the Advisory Committee, the Judicial Conference, and this Court, and the statutory requirement that the Rule be reported to Congress for a period of review before taking effect, see 28 U. S. C. §2072, give the Rules presumptive validity under both the constitutional and statutory constraints. See Hanna, supra, at 471. Applying the Hanna analysis to an analogous Mississippi statute which provides for a mandatory affirmance penalty, the United States Court of Appeals for the Fifth Circuit concluded in Affholder, Inc. v. Southern Rock, Inc., 746 F. 2d 305 (1984), that the statute conflicted with Rule 38 and thus was not applicable in federal diversity actions. The Fifth Circuit discussed two aspects of the conflict: (1) the discretionary mode of operation of the Federal Rule, compared to the mandatory operation of the Mississippi statute, and (2) the limited effect of the Rule in penalizing only frivolous appeals or appeals interposed for purposes of delay, compared to the effect of the Mississippi statute in penalizing every unsuccessful appeal regardless of merit. Id., at 308-309. We find the Fifth Circuit’s analysis persuasive. Rule 38 affords a court of appeals plenary discretion to assess “just damages” in order to penalize an appellant who takes a frivolous appeal and to compensate the injured appellee for the delay and added expense of defending the district court’s judgment. Thus, the Rule’s discretionary mode of operation unmistakably conflicts with the mandatory provision of Alabama’s affirmance penalty statute. Moreover, the purposes underlying the Rule are sufficiently coextensive with the asserted purposes of the Alabama statute to indicate that the Rule occupies the statute’s field of operation so as to preclude its application in federal diversity actions. Respondents argue that, because Alabama has a similar Appellate Rule which may be applied in state court alongside the affirmance penalty statute, see Ala. Rule App. Proc. 38; McAnnally v. Levco, Inc., 456 So. 2d 66, 67 (Ala. 1984), a federal court sitting in diversity could impose the mandatory penalty and likewise remain free to exercise its discretionary authority under Federal Rule 38. This argument, however, ignores the significant possibility that a court of appeals may, in any given case, find a limited justification for imposing penalties in an amount less than 10% of the lower court’s judgment. Federal Rule 38 adopts a case-by-case approach to identifying and deterring frivolous appeals; the Alabama statute precludes any exercise of discretion within its scope of operation. Whatever circumscriptive effect the mandatory affirmance penalty statute may have on the state court’s exercise of discretion under Alabama’s Rule 38, that Rule provides no authority for defining the scope of discretion allowed under Federal Rule 38. Federal Rule 38 regulates matters which can reasonably be classified as procedural, thereby satisfying the constitutional standard for validity. Its displacement of the Alabama statute also satisfies the statutory constraints of the Rules Enabling Act. The choice made by the drafters of the Federal Rules in favor of a discretionary procedure affects only the process of enforcing litigants’ rights and not the rights themselves. Ill We therefore hold that the Alabama mandatory affirmance penalty statute has no application to judgments entered by federal courts sitting in diversity. Reversed. Compare Ky. Rev. Stat. §26A.300 (1985) (mandatory 10% penalty for second appeal); Miss. Code Ann. § 11-3-23 (Supp. 1986) (15% mandatory penalty regardless of stay); Va. Code § 16.1-113 (Supp. 1986) (10% mandatory penalty regardless of stay). Under Alabama law, an appellant may obtain a stay of judgment pending appeal by providing an acceptable surety bond of a set amount, which in this case would have been 126% of the trial court’s judgment had the case been tried in state court. Ala. Rule App. Proc. 8(a)(1). Article III of the Constitution, augmented by the Necessary and Proper Clause of Article I, § 8, cl. 18, empowers Congress to establish a system of federal district and appellate courts and, impliedly, to establish procedural Rules governing litigation in these courts. In the Rules Enabling Act, Congress authorized this Court to prescribe uniform Rules to govern the “practice and procedure” of the federal district courts and courts of appeals. 28 U. S. C. § 2072. Though Hanna v. Plumer, 380 U. S. 460 (1965), involved a conflict between state law and a Federal Rule of Civil Procedure, its analytical framework provides the test for the validity of Federal Rules of Appellate Procedure as well, since these Rules were also prescribed pursuant to the Rules Enabling Act. See Advisory Committee’s Notes on Fed. Rule App. Proc. 1, 28 U. S. C. App., p. 466. The Mississippi statute applies without regard to whether the judgment has been stayed pending appeal. Miss. Code Ann. § 11-3-23 (Supp. 1986). In Walters v. Inexco Oil Co., 725 F. 2d 1014, 1016-1017 (1984), the Court of Appeals for the Fifth Circuit held the statute applicable in federal diversity actions. Later that year, in Affholder, Inc. v. Southern Rock, Inc., the Fifth Circuit overruled Walters, supra, and expressly rejected a similar decision, Proctor v. Gissendaner, 587 F. 2d 182 (1979) (per curiam), in which it had applied the Alabama statute we are now considering. Affholder, 746 F. 2d, at 311. In Gissendaner, supra, the court had held without discussing Hanna, supra, that the Alabama statute dealt with a “non-federal substantive matter” and therefore applied in diversity actions. 587 F. 2d, at 184. This decision was among those adopted as binding precedent by the Eleventh Circuit following its creation in 1981, Bonner v. Prichard, 661 F. 2d 1206, 1209 (1981), and it provides the apparent rationale for imposition of the penalty in the present case. Rule 37 of the Federal Rules of Appellate Procedure provides further indication that the Rules occupy the Alabama statute’s field of operation so as to preclude its application in diversity actions. Since the affirmance penalty only applies if a trial court’s judgment is stayed pending appeal, see Ala. Code § 12-22-72 (1986), it operates to compensate a victorious ap-pellee for the lost use of the judgment proceeds during the period of appeal. Federal Rule 37, however, already serves this purpose by providing for an award of postjudgment interest following an unsuccessful appeal. See also 28 U. S. C. § 1961. In addition, we note that federal provisions governing the availability of a stay of judgment pending appeal do not condition the procurement of a stay on exposure to payment of any additional damages in the event the appeal is unsuccessful and, unlike the state provision in this case, allow the federal courts to set the amount of security in their discretion. Compare Fed. Rules Civ. Proc. 62(d) and 62(g) and Fed. Rule App. Proc. 8(b) with Ala. Rule App. Proc. 8(b). See also 28 U. S. C. § 1651. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

I

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Chief Justice Burger delivered the opinion of the Court. We granted certiorari in these cases to determine whether the Securities and Exchange Commission, in approving the merger of a closed-end investment company into an affiliate company, reasonably exercised its discretion under the Investment Company Act of 1940, 54 Stat. 789, as amended, 15 U. S. C. § 80a-l et seq. The Commission valued the investment company essentially on the basis of the market value of the securities which constituted substantially all of its assets rather than on the lower basis of its own outstanding stock.. The statutory scheme here is relatively straightforward. Section 17 of the Investment Company Act of 1940,15 U. S. C. § 80a-17, forbids an “affiliated person,” as defined in the Act, to purchase any securities or other property from a registered investment company unless the Commission finds, inter alia, that the “evidence establishes that . . . the terms of the proposed transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned . A (1) The merger in this litigation involves Christiana Securities Co., a closed-end, nondiversified management investment company, and E. I. du Pont de Nemours & Co., a large industrial operating company engaged principally in the manufacture of chemical products. Christiana was formed in 1915 in order to preserve family control of Du Pont & Co. At the time the present merger negotiations were announced in April 1972, 98% of Christiana's assets consisted of Du Pont common stock. This block of Du Pont stock in turn comprised approximately 28.3% of the outstanding common stock of Du Pont. For purposes of this litigation, Christiana has been presumed to have at least the potential to control Du Pont, although it submits that “this potential lies dormant and unexercised and that there is no actual control relationship.” SEC Investment Company Act Release No. 8615 (1974), 5 S. E. C. Docket 745, 747 (1974). Christiana itself has 11,710,103 shares of common stock outstanding and has about 8,000 shareholders. Unlike Du Pont stock, which is traded actively on the New York and other national stock exchanges, Christiana shares are traded in the over-the-counter market. Since virtually all of its assets are Du Pont common stock, the market price of Christiana shares reflects the market price of Du Pont stock. However, as is often the case with closed-end investment companies, Christiana’s own stock has historically sold at a discount from the market value of its Du Pont holdings. Apparently, this discount is primarily tax related since Christiana pays a federal intercorporate tax on dividends. Its stockholders are also subject to potential capital-gains tax on the unrealized appreciation of Christiana’s Du Pont stock which has a very low tax base. Additionally, the relatively limited market for Christiana stock likely influences the discount. In 1972, Christiana’s management concluded that, because of the tax disadvantages and the discount at which its shares sold, Christiana should be liquidated and its stockholders become direct owners of Du Pont stock. Christiana’s board of directors proposed liquidation of Christiana by means of a tax-free merger into Du Pont. Du Pont would purchase Christiana’s assets by issuing to Christiana shareholders new certificates of Du Pont stock. In more concrete terms, Du Pont would acquire Christiana’s $2.2 billion assets and assume its liabilities of approximately $300,000. In so doing, Du Pont would acquire from Christiana 13,417,120 shares of its own common stock. Du Pont would then issue 13,228,620 of its shares directly to Christiana holders. This would be 188,500 shares less than Du Pont would receive from Christi-ana. As a result of the merger, each share of Christiana common stock would be converted into 1.123 shares of Du Pont common stock. That ratio was ascertained by taking the market price of Christiana’s Du Pont stock and its other assets, subtracting Christiana’s relatively nominal liabilities, and making certain other minor adjustments. Direct ownership of Du Pont shares would increase the market value of the Christiana shareholders’ holdings and Du Pont would have acquired Christiana’s assets at a 2.5% discount from their net value. The Internal Revenue Service ruled the merger would be tax free. (2) Du Pont and Christiana filed a joint application with the Commission for exemption under § 17 of the Investment Company Act. Administrative proceedings followed. The Commission’s Division of Investment Management Regulation supported the application. A relatively small number of Du Pont shareholders, including the respondents in this case, opposed the transaction. Their basic argument was that, since Christiana was valued on the basis of its assets, Du Pont stock, rather than the much lower market price of its own outstanding stock, the proposed merger would be unfair to the shareholders of Du Pont since it provides relatively greater benefits to Christiana shareholders than to shareholders of Du Pont. The objecting stockholders argued that Du Pont & Co. should receive a substantial share of the benefit realized by Christiana shareholders from the elimination of the 23% discount from net asset value at which Christiana stock was selling. They also argued that the merger would depress the market price of Du Pont stock because it would place more than 13 million marketable Du Pont shares directly in the hands of Christiana shareholders. After the hearing, the parties waived the initial administrative recommendations and the record was submitted directly to the Commission. The Commission unanimously granted the application. Basically, it viewed the proposed transaction as an exchange of equivalents — Christiana’s Du Pont stock to be acquired by Du Pont in exchange for Du Pont stock issued directly to Christiana shareholders. It held that, for purposes of § 17 (b), the proper guide for evaluating Christiana was the market price of Christiana’s holdings of Du Pont stock: “Here justice requires no ventures into the unknown and unknowable. An investment company, whose assets consist entirely or almost entirely of securities the prices of which are determined in active and continuous markets, can normally be presumed to be worth its net asset value. . . . The simple, readily usable tool of net asset value does the job much better than an accurate gauge of market impact (were there one) could.” 5 S. E. C. Docket, at 751. The fact that Du Pont might have obtained more favorable terms because of its strategic bargaining position or by use of alternative methods of liquidating Christiana was considered not relevant by the Commission. In its view, the purpose of § 17 was to prevent persons in a strategic position from getting more than fair value. The Commission found no detriment in the transaction to Du Pont or to the value of its outstanding shares. Any depressing effects on the price of Du Pont would be brief in duration and the intrinsic value of an investment in Du Pont would not be altered by the merger. Moreover, in the Commission’s view, any valuation involving a significant departure from net asset value would “run afoul of Section 17 (b) (1) of the Act”; it would strip long-term investors in companies like Christiana of the intrinsic worth of the securities which underlie their holdings. A panel of the United States Court of Appeals for the Eighth Circuit divided in setting aside the Commission’s determination. Collins v. SEC, 532 F. 2d 584 (1976). The majority held that the Securities and Exchange Commission had erred, as a matter of law, in determining that Christiana should be presumptively valued on the basis of the market value of its principal asset, common stock of Du Pont. “[I]n judging transactions between dominant and subservient parties, the test is 'whether or not under all the circumstances the transaction carries the earmarks of an arm’s length bargain.’ Pepper v. Litton, 308 U. S. 295, 306-307 . . . (1939).” Id., at 592. Employing this standard, the Court of Appeals majority concluded that the record did not support the Commission’s finding that the terms of the merger were “reasonable and fair” since the “economic benefits to Christiana shareholders from the merger are immediate and substantial,” id., at 601, while “benefits to present Du Pont shareholders are minimal.” Id., at 602. The court concluded that, from Du Pont’s viewpoint, “the degree of [control] dispersion attained . . . does not justify the substantial premium paid for the Christiana stock.” Id., at 603. The panel also held that the Commission had erred in failing to give weight to the “occasional detriment to Du Pont shareholders,” id., at 605, caused by the increase of available Du Pont stock in the market. B In determining whether the Court of Appeals correctly set aside the order of the Commission, we begin by examining the nature of the regulatory process leading to the decision that court was required to review. In United States v. National Assn. of Securities Dealers, 422 U. S. 694 (1975), we noted that the Investment Company Act of 1940, 15 U. S. C. § 80a-1 et seq., “vests in the SEC broad regulatory authority over the business practices of the investment companies.” 422 U. S., at 704-705. The Act was the product of congressional concern that existing legislation in the securities field did not afford adequate protection to the purchasers of investment company securities. Prior to the enactment of the legislation, Congress mandated an intensive study of the investment company industry. One of the problems specifically identified was the numerous transactions between investment companies and persons affiliated with them which resulted in a distinct advantage to the “insiders” over the public investors. Section 17 was the specific congressional response to this problem. Congress therefore charged the Commission, in scrutinizing a merger such as this, to take into account the peculiar characteristics of such a. transaction in the investment company industry. Recognizing that an “arm’s length bargain,” cf. Pepper v. Litton, 308 U. S. 295, 307 (1939), is rarely a realistic possibility in transactions between an affiliate and an investment company, Congress substituted, in effect, the informed judgment of the Commission to determine, inter alia, whether the transaction was “reasonable and fair and [did] not involve overreaching on the part of any person concerned.” Given the wide variety of possible transactions between an investment company and its affiliates, Congress, quite understandably, made no attempt to define this standard with any greater precision. Instead, it followed the practice frequently employed in other administrative schemes. The language of the statute was cast in broad terms and designed to encompass all situations falling within the scope of the statute; an agency with great experience in the industry was given the task of applying those criteria to particular business situations in a manner consistent with the legislative intent. C In this case, a judgment as to whether the terms of the merger were “reasonable and fair” turned upon the value assigned to Christiana. In making such an evaluation, the Commission concluded that “[t]he single, readily usable tool of net asset value does the job much better than an accurate gauge of market impact. ...” 5 S. E. C. Docket, at 751. Investment companies, it reasoned, are essentially a portfolio of securities whose individual prices are determined by the forces of the securities marketplace. In determining value in merger situations, “asset value” is thus much more applicable to investment companies than to other corporate entities. The value of the securities surrendered is, basically, the real value received by the transferee. In reviewing a decision of the Commission, a court must consider both the facts found and the application of the relevant statute by the agency. Congress has mandated that, in review of § 17 proceedings, “[t]he findings of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.” 15 U. S. C. § 80a-42. A reviewing court is also to be guided by the “venerable principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong . . . .” Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 381 (1969). “[Contemporaneous construction is entitled to great weight. . . even though it was applied in cases settled by consent rather than in litigation.” FTC v. Mandel Bros., 359 U. S. 385, 391 (1959). Here, however, the Court of Appeals held, as a matter of law, that the Commission erred in the method applied in passing on the merger, thus all but ignoring the congressional limitations on judicial review of agency action. The Commission has long recognized that the key factor in the valuation of the assets of a closed-end investment company should be the market price of the underlying securities. This method of setting the value of investment companies is, as Congress contemplated, the product of the agency’s long and intimate familiarity with the investment company industry. For instance, in issuing an advisory report to the United States District Court pursuant to § 173 of Chapter X of the Bankruptcy Act, the Commission advised that “it is natural that net asset value based upon market prices should be the fundamental valuation criterion used by and large in the investment company field.” Central States Electric Corp., 30 S. E. C. 680, 700 (1949), approved sub nom. Central States Electric Corp. v. Austrian, 183 F. 2d 879, 884 (CA4 1950), cert. denied, 340 U. S. 917 (1951). Similarly, in mergers like the one presented in this litigation, the Commission has used “net asset value” as a touchstone in its analysis. See, e. g., Delaware Realty & Investment Co., 40 S. E. C. 469, 473 (1961); Harbor Plywood Corp., 40 S. E. C. 1002 (1962); Eastern States Corp., SEC Investment Company Act Releases Nos. 5693 and 5711 (1969). Moreover, despite the characterization of the Court of Appeals to the contrary, the Commission did not employ a mechanical application of a rule or “presumption.” It considered carefully the contentions of the respondents that a departure from the use of net asset value was warranted in this case. Upon analysis, it concluded that the central and controlling aspect of the merger remained the fact that it consisted of an exchange of Du Pont common stock for Du Pont common stock; it was not Christiana stock but Du Pont stock which Du Pont was receiving in the merger. As to the claim that Du Pont stock would be adversely affected over an extended period of time by volume selling, the Commission concluded there was no indication of a long-term adverse market impact. It noted that Christiana stock was held principally by long-term investors. There' was no evidence that Christiana stockholders, who for years had been indirect investors in Du Pont, would now change the essential nature of their investment. The Commission’s reliance on “net asset value” in this particular case and its consequent determination that the proposed merger met the statutory standards thus rested “squarely in that area where administrative judgments are entitled to the greatest amount of weight by appellate courts. It is the product of administrative experience, appreciation of the complexities of the problem, realization of the statutory policies, and responsible treatment of the uncontested facts." SEC v. Chenery Corp., 332 U. S. 194, 209 (1947). In rejecting the conclusion of the Commission, the Court of Appeals substituted its own judgment for that of the agency charged by Congress with that responsibility. We note that after receiving briefs and hearing oral argument, the Court of Appeals — over the objection of the Commission, Christiana, and Du Pont — undertook the unique appellate procedure of employing a university professor to assist the court in understanding the record and to prepare reports and memoranda for the court. Thus, the reports relied upon by that court included a variety of data and economic observations which had not been examined and tested by the traditional methods of the adversary process. We are not cited to any statute, rule, or decision authorizing the procedure employed by the Court of Appeals. Cf. Fed. Rule App. Proc. 16. In our view, the Court of Appeals clearly departed from its statutory appellate function and applied an erroneous standard in its review of the decision of the Commission. The record made by the parties before the Commission was in accord with traditional procedures and that record clearly reveals substantial evidence to support the findings of the Commission. Moreover, the agency conclusions of law were based on a construction of the statute consistent with the legislative intent. Accordingly, the judgment of the Court of Appeals is ^ D , Reversed. Mr. Justice Rehnquist took no part in the consideration or decision of these cases. 429 U. S. 815 (1976). Title 16 U. S. C. § 80a-2 (a) (3) defines an “affiliated person” as follows: “(3) ‘Affiliated person’ of another person means (A) any person directly or indirectly owning, controlling, or holding with power to vote, 5 per centum or more of the outstanding voting securities of such other person; (B) any person 5 per centum or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by such other person; (C) any person directly or indirectly controlling, controlled by, or under common control with, such other person; (D) any officer, director, partner, copartner, or employee of such other person; (E) if such other person is an investment company, any investment adviser thereof or any member of an advisory board thereof; and (F) if such other person is an unincorporated investment company not having a board of directors, the depositor thereof.” Section 17 (b) also requires that the proposed transaction be (1) consistent with the policy of each registered investment company concerned, and (2) consistent with “the general purposes of this title.” 54 Stat. 815, 15 U. S. C. §§ 80a-17 (b)(2), (3). These criteria are not contested here. Christiana owns 13,417,120 shares of Du Pont. It also holds a relatively small amount of Du Pont preferred stock. Its other assets consist of two daily newspapers in Wilmington, Del., and 3.5% of the stock of the Wilmington Trust Co., which, in turn, holds more than one-half of Christiana’s common stock as trustee. SEC Investment Company Act Release No. 8615 (1974). According to the applicants’ Notice of Filing of Application, SEC Investment Company Act Release No. 7402 (1972), Du Pont has 47,566,694 shares of common stock outstanding held by approximately 224,964 shareholders. Ninety-five and one-fialf percent of these shares are held by 338 people. SEC Investment Company Act Release No. 8615, supra. In the two years preceding the date of the announcement of the merger negotiations, this discount was generally in the range of 20 %- 25%. Ibid. A petition for rehearing en bane was denied by an equally divided court. Section 30 of the Public Utility Holding Company Act, 49 Stat. 837, 15 U. S. C. § 79z-4, mandated that the SEC undertake such a study. See United States v. National Assn. of Securities Dealers, 422 U. S. 694, 704 (1975). See generally Report on Investment Trust and Investment Companies, H. R. Doc. No. 279, 76th Cong., 1st Sess., 1017-1561 (1940). While the House and Senate Reports indicate that the Congress’ chief concern was protection of the public investors of the investment company, S. Rep. No. 1775, 76th Cong., 3d Sess., 11-12 (1940); H. R. Rep. No. 2639, 76th Cong., 3d Sess., 9 (1940), the statute has been construed to afford protection to the stockholders of the affiliate as well. See Fifth Avenue Coach Lines, Inc., 43 S. E. C. 635, 639 (1967). 15 U. S. C. §80a-17 (b)(1). This situation is quite different from that which confronted the Court earlier this Term in Piper v. Chris-Craft Industries, Inc., 430 U. S. 1 (1977). There, the Court held that “the narrow legal issue” of implying a private right of action under the securities laws was “one peculiarly reserved for judicial resolution” and that the experience of the Commission on such a question was of “limited value.” Id., at 41 n. 27. By contrast, this case involves an assessment as to whether a given business arrangement is compatible with the regulatory scheme which the agency is charged by Congress to administer. This method of valuation of closed-end investment companies was similarly employed in ELT, Inc., SEC Investment Company Act Releases Nos. 8675 and 8714 (1975); Chemical Fund, Inc., SEC Investment Company Act Releases Nos. 8773 and 8795 (1975); Citizens &. Southern Capital Corp., SEC Investment Company Act Releases Nos. 7755 and 7802 (1973) ; Detroit & Cleveland Nav. Co., SEC Investment Company Act Releases Nos. 3082 and 3099 (1960); Cheapside Dollar Fund, Ltd., SEC Investment Company Act Releases Nos. 9038 and 9085 (1975). The Commission has, of course, required that such valuations be adjusted to reflect such factors as expenses of the merger and tax considerations. Talley Industries, Inc., SEC Investment Company Act Release No: 5953 (1970) ; and Electric Bond & Share Co., SEC Investment Company Act Release No. 5215 (1967), cited by the Court of Appeals, did not rely on net asset value since the companies held substantial assets other than securities. While Christiana also had some assets other than Du Pont stock, they amounted to only 2% of its assets. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice O’Connor delivered the opinion of the Court. In Will v. Michigan Dept. of State Police, 491 U. S. 58 (1989), we held that state officials “acting in their official capacities” are outside the class of “persons” subject to liability under Rev. Stat. § 1979, 42 U. S. C. § 1983. 491 U. S., at 71. Petitioner takes this language to mean that § 1983 does not authorize suits against state officers for damages arising from official acts. We reject this reading of Will and hold that state officials sued in their individual capacities are “persons” for purposes of § 1983. I In 1988, petitioner Barbara Hafer sought election to the post of auditor general of Pennsylvania. Respondents allege that during the campaign United States Attorney James West gave Hafer a list of 21 employees in the auditor general’s office who secured their jobs through payments to a former employee of the office. App. 10. They further allege that Hafer publicly promised to fire all employees on the list if elected. Ibid. Hafer won the election. Shortly after becoming auditor general, she dismissed 18 employees, including named respondent James Melo, Jr., on the basis that they “bought” their jobs. Melo and seven other terminated employees sued Hafer and West in Federal District Court. They asserted state and federal claims, including a claim under § 1983, and sought monetary damages. Carl Gurley and the remaining respondents in this case also lost their jobs with the auditor general soon after Hafer took office. These respondents allege that Hafer discharged them because of their Democratic political affiliation and support for her opponent in the 1988 election. Id., at 28, 35, 40. They too filed suit against Hafer, seeking monetary damages and reinstatement under § 1983. After consolidating the Melo and Gurley actions, the District Court dismissed all claims. In relevant part, the court held that the § 1983 claims against Hafer were barred because, under Will, she could not be held liable for employment decisions made in her official capacity as auditor general. The Court of Appeals for the Third Circuit reversed this portion of the District Court’s decision. 912 F. 2d 628 (1990). As to claims for reinstatement brought against Hafer in her official capacity, the court rested on our statement in Will that state officials sued for injunctive relief in their official capacities are “persons” subject to liability under § 1983. See Will, supra, at 71, n. 10. Turning to respondents’ monetary claims, the court found that six members of the Gurley group had expressly sought damages from Hafer in her personal capacity. The remaining plaintiffs “although not as explicit, signified a similar intent.” 912 F. 2d, at 636. The court found this critical. While Hafer’s power to hire and fire derived from her position as auditor general, it said, a suit for damages based on the exercise of this authority could be brought against Hafer in her personal capacity. Because Hafer acted under color of state law, respondents could maintain a § 1983 individual-capacity suit against her. We granted certiorari, 498 U. S..1H8 (1991), to address the question whether state officers may be held personally liable for damages under § 1983 based upon actions taken in their official capacities. II In Kentucky v. Graham, 473 U. S. 159 (1985), the Court sought to eliminate lingering confusion about the distinction between personal- and official-capacity suits. We emphasized that official-capacity suits “‘generally represent only another way of pleading an action against an entity of which an officer is an agent.’ ” Id., at 165 (quoting Monell v. New York City Dept. of Social Services, 436 U. S. 658, 690, n. 55 (1978)). Suits against state officials in their official capacity therefore should be treated as suits against the State. 473 U. S., at 166. Indeed, when officials sued in this capacity in federal court die or leave office, their successors automatically assume their roles in the litigation. See Fed. Rule Civ. Proc. 25(d)(1); Fed. Rule App. Proc. 43(c)(1); this Court’s Rule 35.3. Because the real party in interest in an official-capacity suit is the governmental entity and not the named official, “the entity’s ‘policy or custom’ must have played a part in the violation of federal law.” Graham, supra, at 166 (quoting Monell, supra, at 694). For the same reason, the only immunities available to the defendant in an official-capacity action are those that the governmental entity possesses. 473 U. S., at 167. Personal-capacity suits, on the other hand, seek to impose individual liability upon a government officer for actions taken under color of state law. Thus, “[o]n the merits, to establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right.” Id., at 166. While the plaintiff in a personal-capacity suit need not establish a connection to governmental “policy or custom,” officials sued in their personal capacities, unlike those sued in their official capacities, may assert personal immunity defenses such as objectively reasonable reliance on existing law. Id., at 166-167. Our decision in Will v. Michigan Dept. of State Police, 491 U. S. 58 (1989), turned in part on these differences between personal- and official-capacity actions. The principal issue in Will was whether States are “persons” subject to suit under § 1983. Section 1983 provides, in relevant part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . . .” The Court held that interpreting the words “[ejvery person” to exclude the States accorded with the most natural reading of the law, with its legislative history, and with the rule that Congress must clearly state its intention to alter “ ‘the federal balance’” when it seeks to do so. Will, supra, at 65 (quoting United States v. Bass, 404 U. S. 336, 349 (1971)). The Court then addressed the related question whether state officials, sued for monetary relief in their official capacities, are persons under § 1983. We held that they are not. Although “state officials literally are persons,” an official-capacity suit against a state officer “is not a suit against the official but rather is a suit against the official’s office. As such it is no different from a suit against the State itself.” 491 U. S., at 71 (citation omitted). Summarizing our holding, we said: “[NJeither a State nor its officials acting in their official capacities are ‘persons’ under § 1983.” Ibid. Hafer relies on this recapitulation for the proposition that she may not be held personally liable under § 1983 for discharging respondents because she “act[ed]” in her official capacity as auditor general of Pennsylvania. Of course, the claims considered in Will were official-capacity claims; the phrase “acting in their official capacities” is best understood as a reference to the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury. To the extent that Will allows the construction Hafer suggests, however, we now eliminate that ambiguity. A Will itself makes clear that the distinction between official-capacity suits and personal-capacity suits is more than “a mere pleading device.” Ibid. State officers sued for damages in their official capacity are not “persons” for purposes of the suit because they assume the identity of the government that employs them. Ibid. By contrast, officers sued in their personal capacity come to court as individuals. A government official in the role of personal-capacity defendant thus fits comfortably within the statutory term “person.” Cf. id., at 71, n. 10 (“[A] state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the State’ ”) (quoting Graham, 473 U. S., at 167, n. 14). Hafer seeks to overcome the distinction between official- and personal-capacity suits by arguing that §1983 liability turns not on the capacity in which state officials are sued, but on the capacity in which they acted when injuring the plaintiff. Under Will, she asserts, state officials may not be held liable in their personal capacity for actions they take in their official capacity. Although one Court of Appeals has endorsed this view, see Cowan v. University of Louisville School of Medicine, 900 F. 2d 936, 942-943 (CA6 1990), we find it both unpersuasive as an interpretation of § 1983 and foreclosed by our prior decisions. Through § 1983, Congress sought “to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official’s abuse of his position.” Monroe v. Pape, 365 U. S. 167, 172 (1961). Accordingly, it authorized suits to redress deprivations of civil rights by persons acting “under color of any [state] statute, ordinance, regulation, custom, or usage.” 42 U. S. C. § 1983. The requirement of action under color of state law means that Hafer may be liable for discharging respondents precisely because of her authority as auditor general. We cannot accept the novel proposition that this same official authority insulates Hafer from suit. In an effort to limit the scope of her argument, Hafer distinguishes between two categories of acts taken under color of state law: those outside the official’s authority or not essential to the operation of state government, and those both within the official’s authority and necessary to the performance of governmental functions. Only the former group, she asserts, can subject state officials to personal liability under § 1983; the latter group (including the employment decisions at issue in this case) should be considered acts of the State that cannot give rise to a personal-capacity action. The distinction Hafer urges finds no support in the broad language of § 1983. To the contrary, it ignores our holding that Congress enacted § 1983 “ ‘to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.’ ” Scheuer v. Rhodes, 416 U. S. 232, 243 (1974) (quoting Monroe v. Pape, supra, at 171-172). Because of that intent, we have held that in § 1983 actions the statutory requirement of action “under color of” state law is just as broad as the Fourteenth Amendment’s “state action” requirement. Lugar v. Edmondson Oil Co., 457 U. S. 922, 929 (1982). Furthermore, Hafer’s distinction cannot be reconciled with our decisions regarding immunity of government officers otherwise personally liable for acts done in the course of their official duties. Her theory would absolutely immunize state officials from personal liability for acts within their authority and necessary to fulfilling governmental responsibilities. Yet our cases do not extend absolute immunity to all officers who engage in necessary official acts. Rather, immunity from suit under § 1983 is “predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it,” Imbler v. Pachtman, 424 U. S. 409, 421 (1976), and officials seeking absolute immunity must show that such immunity is justified for the governmental function at issue, Burns v. Reed, 500 U. S. 478, 486-487 (1991). This Court has refused to extend absolute immunity beyond a very limited class of officials, including the President of the United States, legislators carrying out their legislative functions, and judges carrying out their judicial functions, “whose special functions or constitutional status requires complete protection from suit.” Harlow v. Fitzgerald, 457 U. S. 800, 807 (1982). State executive officials are not entitled to absolute immunity for their official actions. Scheuer v. Rhodes, supra. In several instances, moreover, we have concluded that no more than a qualified immunity attaches to administrative employment decisions, even if the same official has absolute immunity when performing other functions. See Forrester v. White, 484 U. S. 219 (1988) (dismissal of court employee by state judge); Harlow v. Fitzgerald, supra (discharge of Air Force employee, allegedly orchestrated by senior White House aides) (action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971)); Davis v. Passman, 442 U. S. 228 (1979) (dismissal of congressional aide) (Bivens action). That Hafer may assert personal immunity within the framework of these cases in no way supports her argument here. B Hafer further asks us to read Will’s language concerning suits against state officials as establishing the limits of liability under the Eleventh Amendment. She asserts that imposing personal liability on officeholders may infringe on state sovereignty by rendering government less effective; thus, she argues, the Eleventh Amendment forbids personal-capacity suits against state officials in federal court. Most certainly, Will’s holding does not rest directly on the Eleventh Amendment. Whereas the Eleventh Amendment bars suits in federal court “by private parties seeking to impose a liability which must be paid from public funds in the state treasury,” Edelman v. Jordan, 415 U. S. 651, 663 (1974), Will arose from a suit in state court. We considered the Eleventh Amendment in Will only because the fact that Congress did not intend to override state immunity when it enacted § 1983 was relevant to statutory construction: “Given that a principal purpose behind the enactment of § 1983 was to provide a federal forum for civil rights claims,” Congress’ failure to authorize suits against States in federal courts suggested that it also did not intend to authorize such claims in state courts. 491 U. S., at 66. To the extent that Hafer argues from the Eleventh Amendment itself, she makes a claim that failed in Scheuer v. Rhodes, supra. In Scheuer, personal representatives of the estates of three students who died at Kent State University in May 1970 sought damages from the Governor of Ohio and other state officials. The District Court dismissed their complaints on the theory that the suits, although brought against state officials in their personal capacities, were in substance actions against the State of Ohio and therefore barred by the Eleventh Amendment. We rejected this view. “[S]ince Ex parte Young, 209 U. S. 123 (1908),” we said, “it has been settled that the Eleventh Amendment provides no shield for a state official confronted by a claim that he had deprived another of a federal right under the color of state law.” Scheuer, supra, at 237. While the doctrine of Ex parte Young does not apply where a plaintiff seeks damages from the public treasury, damages awards against individual defendants in federal courts “are a permissible remedy in some circumstances notwithstanding the fact that they hold public office.” 416 U. S., at 238. That is, the Eleventh Amendment does not erect a barrier against suits to impose “individual and personal liability” on state officials under § 1983. Ibid. To be sure, imposing personal liability on state officers may hamper their performance of public duties. But such concerns are properly addressed within the framework of our personal immunity jurisprudence. See Forrester v. White, supra, at 223. Insofar as respondents seek damages against Hafer personally, the Eleventh Amendment does not restrict their ability to sue in federal court. We hold that state officials, sued in their individual capacities, are “persons” within the meaning of § 1983. The Eleventh Amendment does not bar such suits, nor are state officers absolutely immune from personal liability under § 1983 solely by virtue of the “official” nature of their acts. The judgment of the Court of Appeals is Affirmed. Justice Thomas took no part in the consideration or decision of this case. The Third Circuit looked to the proceedings below to determine whether certain respondents brought their claims for damages against Hafer in her official capacity or her personal capacity. 912 F. 2d, at 635-636. Several other Courts of Appeals adhere to this practice. See Conner v. Reinhard, 847 F. 2d 384, 394, n. 8 (CA7), cert. denied, 488 U. S. 856 (1988); Houston v. Reich, 932 F. 2d 883, 885 (CA10 1991); Lundgren v. McDaniel, 814 F. 2d 600, 603-604 (CA11 1987). Still others impose a more rigid pleading requirement. See Wells v. Brown, 891 F. 2d 591, 592 (CA6 1989) (§ 1983 plaintiff must specifically plead that suit for damages is brought against state official in individual capacity); Nix v. Norman, 879 F. 2d 429, 431 (CA8 1989) (same). Because this issue is not properly before us, we simply reiterate the Third Circuit’s view that “[i]t is obviously preferable for the plaintiff to be specific in the first instance to avoid any ambiguity.” 912 F. 2d, at 636, n. 7. See this Court’s Rule 14.1(a) (“Only the questions set forth in the petition, or fairly included therein, will be considered by the Court”). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Scalia delivered the opinion of the Court. In this case we consider whether it was constitutional for a prosecutor, in her summation, to call the jury’s attention to the fact that the defendant had the opportunity to hear all other witnesses testify and to tailor his testimony accordingly. I Respondent’s trial on 19 sodomy and assault counts and 3 weapons counts ultimately came down to a credibility determination. The alleged victim, Nessa Winder, and her friend, Breda Keegan, testified that respondent physically assaulted, raped, and orally and anally sodomized Winder, and that he threatened both women with a handgun. Respondent testified that he and Winder had engaged in consensual vaginal intercourse. He further testified that during an argument he had with Winder, he struck her once in the face. He denied raping her or threatening either woman with a handgun. During summation, defense counsel charged Winder and Keegan with lying. The prosecutor similarly focused on the credibility of the witnesses. She stressed respondent’s interest in the outcome of the trial, his prior felony conviction, and his prior bad acts. She argued that respondent was a “smooth slick character , . . who had an answer for everything,” App. 45, and that part of his testimony “sound[ed] rehearsed,” id., at 48. Finally, over defense objection, the prosecutor remarked: “You know, ladies and gentlemen, unlike all the other witnesses in this ease the defendant has a benefit and the benefit that he has, unlike all the other witnesses, is he gets to sit here and listen to the testimony of all the other witnesses before he testifies. “That gives you a big advantage, doesn't it. You get to sit here and think what am I going to say and how am I going to say it? How am I going to fit it into the evidence? “He’s a smart man. I never said he was stupid. . . . He used everything to his advantage.” Id., at 49. The trial court rejected defense counsel’s claim that these last comments violated respondent’s right to be present at trial. The court stated that respondent’s status as the last witness in the case was simply a matter of fact, and held that his presence during the entire trial, and the advantage that this afforded him, “may fairly be commented on.” Id., at 54. Respondent was convicted of one count of anal sodomy and two counts of third-degree possession of a weapon. On direct appeal, the New York Supreme Court reversed one of the convictions for possession of a weapon but affirmed the remaining convictions. People v. Agard, 199 App. Div. 2d 401, 606 N. Y. S. 2d 239 (2d Dept. 1993). The New York Court of Appeals denied leave to appeal. People v. Agard, 83 N. Y. 2d 868, 635 N. E. 2d 298 (1994). Respondent then filed a petition for habeas corpus relief in federal court, claiming, inter alia, that the prosecutor’s comments violated his Fifth and Sixth Amendment rights to be present at trial and confront his accusers. He further claimed that the comments violated his Fourteenth Amendment right to due process. The District Court denied the petition in an unpublished order. A divided panel of the Second Circuit reversed, holding that the prosecutor’s comments violated respondent’s Fifth, Sixth, and Fourteenth Amendment rights. 117 F. 3d 696 (1997), rehearing denied, 159 F. 3d 98 (1998). We granted certiorari. 526 U. S. 1016 (1999). II Respondent contends that the prosecutor’s comments on his presence and on the ability to fabricate that it afforded him unlawfully burdened his Sixth Amendment right to be present at trial and to be confronted with the witnesses against him, see Illinois v. Allen, 397 U. S. 337 (1970); Pointer v. Texas, 380 U. S. 400 (1965), and his Fifth and Sixth Amendment rights to testify on his own behalf, see Rock v. Arkansas, 483 U. S. 44 (1987). Attaching the cost of impeachment to the exercise of these rights was, he asserts, unconstitutional. argument down to a request that we extend to comments of the type the prosecutor made here the rationale of Griffin v. California, 380 U. S. 609 (1965), which involved comments upon a defendant’s refusal to testify. In that case, the trial court instructed the jury that it was free to take the defendant’s failure to deny or explain facts within his knowledge as tending to indicate the truth of the prosecution’s case. This Court held that such a comment, by “solemniz[ing] the silence of the accused into evidence against him,” unconstitutionally “cuts down on the privilege [against self-incrimination] by making its assertion costly.” Id., at 614. We decline to extend Griffin to the present context. As an initial matter, respondent’s claims have no historical foundation, neither in 1791, when the Bill of Rights was adopted, nor in 1868 when, according to our jurisprudence, the Fourteenth Amendment extended the strictures of the Fifth and Sixth Amendments to the States. The process by which criminal defendants were brought to justice in 1791 largely-obviated the need for comments of the type the prosecutor made here. Defendants routinely were asked (and agreed) to provide a pretrial statement to a justice of the peace detailing the events in dispute. See Moglen, The Privilege in British North America: The Colonial Period to the Fifth Amendment, in The Privilege Against Self-Incrimination 109, 112, 114 (R. Helmholz et al. eds. 1997). If their story at trial — where they typically spoke and conducted their defense personally, without counsel, see J. Goebel & T. Naughton, Law Enforcement in Colonial New York: A Study in Criminal Procedure (1664-1776), p. 574 (1944); A. Scott, Criminal Law in Colonial Virginia 79 (1930) — differed from their pretrial statement, the contradiction could be noted. See Levy, Origins of the Fifth Amendment and Its Critics, 19 Cardozo L. Rev. 821, 843 (1997). Moreover, what they said at trial was not considered to be evidence, since they were disqualified from testifying under oath. See 2 J. Wig-more, Evidence § 579 (3d ed. 1940). The pretrial statement did not begin to fall into disuse until the 1830’s, see Alschuler, A Peculiar Privilege in Historical Perspective, in The Privilege Against Self-Incrimination, supra, at 198, and the first State to make defendants competent witnesses was Maine, in 1864, see 2 Wigmore, supra, §579, at 701. In response to these developments, some States attempted to limit a defendant’s opportunity to tailor his sworn testimony by requiring him to testify prior to his own witnesses. See 3 J. Wigmore, Evidence §§1841, 1869 (1904); Ky. Stat., ch. 45, §1646 (1899); Tenn. Code Ann., eh. 4, §5601 (1896). Although the majority of States did not impose such a restriction, there is no evidence to suggest they also took the affirmative step of forbidding comment upon the defendant’s opportunity to tailor his testimony. The dissent faults us for “calling] up no instance of an 18th- or 19th-century prosecutor’s urging that a defendant’s presence at trial facilitated tailored testimony.” Post, at 84 (opinion of Ginsburg, J.). We think the burden is rather upon respondent and the dissent, who assert the unconstitutionality of the practice, to come up with a case in which such urging was held improper. They cannot even produce one in which the practice was so much as challenged until after our decision in Griffin. See, e. g., State v. Cassidy, 236 Conn. 112, 126-127, 672 A. 2d 899, 907-908 (1996); People v. Buckey, 424 Mich. 1, 8-15, 378 N. W. 2d 432, 436-439 (1985); Jenkins v. United States, 374 A. 2d 581, 583-584 (D. C. 1977). This absence cuts in favor of respondent (as the dissent asserts) only if it is possible to believe that after reading Griffin prosecutors suddenly realized that commenting on a testifying defendant’s unique ability to hear prior testimony was a good idea. Evidently, prosecutors were making these comments all along without objection; Griffin simply sparked the notion that such commentary might be problematic. Lacking any historical support for the constitutional rights that he asserts, respondent must rely entirely upon our opinion in Griffin. That case is a poor analogue, however, for several reasons. What we prohibited the prosecutor from urging the jury to do in Griffin was something the jury is not permitted to do. The defendant’s right to hold the prosecution to proving its case without his assistance is not to be impaired by the jury’s counting the defendant’s silence at trial against him — and upon request the court must instruct the jury to that effect. See Carter v. Kentucky, 450 U. S. 288 (1981). It is reasonable enough to expect a jury to comply with that instruction since, as we observed in Griffin, the inference of guilt from silence is not always “natural or irresistible.” 380 U. S., at 615. A defendant might refuse to testify simply out of fear that he will be made to look bad by clever counsel, or fear “'that his prior convictions will prejudice the jury.’” Ibid, (quoting People v. Modesto, 62 Cal. 2d 436, 453, 398 P. 2d 753, 763 (1965) (en banc)). By contrast, it is natural and irresistible for a jury, in evaluating the relative credibility of a defendant who testifies last, to have in mind and weigh in the balance the fact that he heard the testimony of all those who preceded him. It is one thing (as Griffin requires) for the jury to evaluate all the other evidence in the case without giving any effect to the defendant’s refusal to testify; it is something else (and quite impossible) for the jury to evaluate the credibility of the defendant’s testimony while blotting out from its mind the fact that before giving the testimony the defendant had been sitting there listening to the other witnesses. Thus, the principle respondent asks us to adopt here differs from what we adopted in Griffin in one or the other of the following respects: It either prohibits inviting the jury to do what the jury is perfectly entitled to do; or it requires the jury to do what is practically impossible. Second, Griffin prohibited comments that suggest a defendant’s silence is “evidence of guilt” 380 U. S., at 615 (emphasis added); see also United States v. Robinson, 485 U. S. 25, 32 (1988) (“‘Griffin prohibits the judge and prosecutor from suggesting to the jury that it may treat the defendant’s silence as substantive evidence of guilt’ ” (quoting Baxter v. Palmigiano, 425 U. S. 308, 319 (1976))). The prosecutor’s comments in this case, by contrast, concerned respondent’s credibility as a witness, and were therefore in accord with our longstanding rule that when a defendant takes the stand, “his credibility may be impeached and his testimony assailed like that of any other witness.” Brown v. United States, 356 U. S. 148, 154 (1958). “[W]hen-[a defendant] assumes the role of a witness, the rules that generally apply to other witnesses — rules that serve the truth-seeking function of the trial — are generally applicable to him as well.” Perry v. Leeke, 488 U. S. 272, 282 (1989). See also Reagan v. United States, 157 U. S. 301, 305 (1895). Respondent points to our opinion in Geders v. United States, 425 U. S. 80, 87-91 (1976), which held that the defendant must be treated differently from other witnesses insofar as sequestration orders are concerned, since sequestration for an extended period of time denies the Sixth Amendment right to counsel. With respect to issues of credibility, however, no such special treatment has been accorded. Jenkins v. Anderson, 447 U. S. 231 (1980), illustrates the point. There the prosecutor in a first-degree murder trial, during cross-examination and again in closing argumént, attempted to impeach the defendant’s claim of self-defense by suggesting that he would not have waited two weeks to report the killing if that was what had occurred. In an argument strikingly similar to the one presented here, the defendant in Jenkins claimed that commenting on his prearrest silence violated his Fifth Amendment privilege against self-incrimination because “a person facing arrest will not remain silent if his failure to speak later can be used to impeach him.” Id., at 236. The Court noted that it was not clear whether the Fifth Amendment protects prearrest silence, id., at 236, n. 2, but held that, assuming it does, the prosecutor’s comments were constitutionally permissible. “[T]he Constitution does not forbid ‘every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights.’” Id., at 236 (quoting Chaffin v. Stynchcombe, 412 U. S. 17, 30 (1973)). Once a defendant takes the stand, he is “‘subject to cross-examination impeaching his credibility just like any other witness.’ ” Jenkins, supra, at 235-236 (quoting Grunewald v. United States, 353 U. S. 391, 420 (1957)). Indeed, in Brooks v. Tennessee, 406 U. S. 605 (1972), the Court suggested that arguing credibility to the jury — which would include the prosecutor’s comments here — is the preferred means of counteracting tailoring of the defendant’s testimony. In that ease, the Court found unconstitutional Tennessee’s attempt to defeat tailoring by requiring defendants to testify at the outset of the defense or not at all. This requirement, it said, impermissibly burdened the defendant’s right to testify because it forced him to decide whether to do so before he could determine that it was in his best interest. Id., at 610. The Court expressed its awareness, however, of the danger that tailoring presented. The antidote, it said, was not Tennessee’s heavy-handed rule, but the more nuanced “adversary system[, which] reposes judgment of the credibility of all witnesses in the jury.” Id., at 611. The adversary system surely envisions — indeed, it requires— that the prosecutor be allowed to bring to the jury’s attention the danger that the Court was aware of. Respondent and the dissent also contend that the prosecutor’s comments were impermissible because they were “generic” rather than based upon any specific indication of tailoring. Such comment, the dissent claims, is unconstitutional because it “does not serve to distinguish guilty defendants from innocent ones.” Post, at 77. But this Court has approved of such “generic” comment before. In Reagan, for example, the trial court instructed the jury that “[t]he deep personal interest which [the defendant] may have in the result of the suit should be considered ... in weighing his evidence and. in determining how far or to what extent, if at all, it is worthy of credit.” 157 U. S., at 304. The instruction did not rely on any specific evidence of actual fabrication for its application; nor did it, directly at least, delineate the guilty and the innocent. Like the comments in this case, it simply set forth a consideration the jury was to have in mind when assessing the defendant’s credibility, which, in turn, assisted it in determining the guilt of the defendant. We deemed that instruction perfectly proper. Thus, that the comments before us here did not, of their own force, demonstrate the guilt of the defendant, or even distinguish among defendants, does not render them infirm. Finally, the Second Circuit held, and the dissent contends, that the comments were impermissible here because they were made, not during cross-examination, but at summation, leaving the defense no opportunity to reply. 117 F. 3d, at 708, and n. 6. That this is not a constitutionally significant distinction is demonstrated by our decision in Reagan. There the challenged instruction came at the end of the case, after the defense had rested, just as the prosecutor’s comments did here. Our trial structure, which requires the defense to close before the prosecution, regularly forces the defense to predict what the prosecution will say. Indeed, defense counsel in this case explained to the jury that it was his job in “closing argument here to try and anticipate as best [he could] some of the arguments that the prosecution [would] be making.” App. 25-27. What Reagan permitted — a generic interested-witness instruction, after the defense has closed— is in a long tradition that continues to the present day. See, e. g., United States v. Jones, 587 F. 2d 802 (CA5 1979); United States v. Hill, 470 F. 2d 361 (CADC 1972); 2 C. Wright, Federal Practice and Procedure § 601, and n. 1 (1982). Indeed, the instruction was given in this very case. See Tr. 834 (“A defendant is of course an interested witness since he is interested in the outcome of the trial. You may as jurors wish to keep such interest in mind in determining the credibility and weight to be given to the defendant’s testimony”). There is absolutely nothing to support the dissent’s contention that for purposes of determining the validity of generic attacks upon credibility “the distinction between cross-examination and summation is critical,” post, at 87. sum, we see no reason to depart from the practice of treating testifying defendants the same as other witnesses. A witness’s ability to hear prior testimony and to tailor his account accordingly, and the threat that ability presents to the integrity of the trial, are no different when it is the defendant doing the listening. Allowing comment upon the fact that a defendant’s presence in the courtroom provides him a unique opportunity to tailor his testimony is appropriate — and indeed, given the inability to sequester the defendant, sometimes essential — to the central function of the trial, which is to discover the truth. III Finally, we address the Second Circuit’s holding that the prosecutor’s comments violated respondent’s Fourteenth Amendment right to due process. Of course to the extent this claim is based upon alleged burdening of Fifth and Sixth Amendment rights, it has already been disposed of by our determination that those Amendments were not infringed. Cf. Graham v. Connor, 490 U. S. 386, 395 (1989) (where an Amendment “provides an explicit textual source of constitutional protection ... that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing [the] claims”). Respondent contends, however, that because New York law required him to be present at his trial, see N. Y. Crim. Proc. Law §260.20 (McKinney 1993); N. Y. Crim. Proc. Law § 340.50 (McKinney 1994), the prosecution violated his right to due process by commenting on that presence. He asserts that our decision in Doyle v. Ohio, 426 U. S. 610 (1976), requires such a holding. In Doyle, the defendants, after being arrested for selling marijuana, received their Miranda warnings and chose to remain silent. At their trials, both took the stand and claimed that they had not sold marijuana, but had been “framed.” 426 U. S., at 613. To impeach the defendants, the prosecutors asked each why he had not related this version of events at the time he was arrested. We held that this violated the defendants’ rights to due process because the Miranda warnings contained an implicit “assurance that silence will carry no penalty.” 426 U. S., at 618. Although there might be reason to reconsider Doyle, we need not do so here. “[W]e have consistently explained Doyle as a case where the government had induced silence by implicitly assuring the defendant that his silence would not be used against him.” Fletcher v. Weir, 455 U. S. 603, 606 (1982) (per curiam). The Miranda warnings had, after all, specifically given the defendant both the option of speaking and the option of remaining silent — and had then gone on to say that if he chose the former option what he said could be used against him. It is possible to believe that this contained an implicit promise that his choice of the option of silence would not be used against him. It is not possible, we think, to believe that a similar promise of impunity is implicit in a statute requiring the defendant to be present at trial. contends that this case contains an element of unfairness even worse than what existed in Doyle: Whereas the defendant in that case had the ability to avoid impairment of his case by choosing to speak rather than remain silent, the respondent here (he asserts) had no choice but to be present at the trial. Though this is far from certain, see, e. g., People v. Aiken, 45 N. Y. 2d 394, 397, 380 N. E. 2d 272, 274 (1978) (“[A] defendant charged with a felony not punishable by death may, by his voluntary and willful absence from trial, waive his right to be present at every stage of his trial”), we shall assume for the sake of argument that it is true. There is, however, no authority whatever for the proposition that the impairment of credibility, if any, caused by mandatory presence at trial violates due process. If the ability to avoid the accusation (or suspicion) of tailoring were as crucial a factor as respondent contends, one would expect criminal defendants — in jurisdictions that do not have compulsory attendance requirements — frequently to absent themselves from trial when they intend to give testimony. But to our knowledge, a criminal trial without the defendant present is a rarity. Many long established elements of criminal procedure deprive a defendant of advantages he would otherwise possess — for example, the requirement that he plead to the charge before, rather than after, all the evidence in. The consequences of the requirement that he be present at trial seem to us no worse. * * * For the foregoing reasons, the judgment of the Court of Appeals for the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. The dissent seeks to place us in the position of defending the proposition that inferences that the jury is free to make are inferences that the prosecutor must be free to invite. Post, at 86-87. Of course we say no such thing. We simply say (in the sentence to which this note is appended) that forbidding invitation of a 'permissible inference is one of two alternative respects in which this ease is substantially different from respondent’s sole source of support, Griffin. Similarly, the dissent seeks to place us in the position of defending the proposition that it is more natural to infer tailoring from presence than to infer guilt from silence. Post, at 84-86. The quite different point we do make is that inferring opportunity to tailor from presence is inevitable, and prohibiting that inference (while simultaneously asking the jury to evaluate the veracity of the defendant’s testimony) is demanding the impossible — producing the other alternative respect in which this case differs from Griffin. The dissent seeks to rebut this point by asserting that in the present case the prosecutorial comments went beyond pointing out the opportunity to tailor and actually made an accusation of tailoring. It would be worth inquiring into that subtle distinction if the dissent proposed to permit the former while forbidding the latter. It does not, of course; nor, as far as we know, does any other authority. Drawing the line between pointing out the availability of the inference and inviting the inference would be neither useful nor practicable. Thus, under the second alternative described above, the jury must be prohibited from taking into account the opportunity of tailoring. The dissent’s stern disapproval of generic comment (it “tarnishes the innocent no less than the guilty,” post, at 77-78; it suffers from an “incapacity to serve the individualized truth-finding function of trials,” post, at 80; so that “when a defendant’s exercise of a constitutional fair trial right is ‘insolubly ambiguous’ as between innocence and guilt, the prosecutor may not urge the jury to construe the bare invocation of the right against the defendant,” post, at 78) hardly comports with its praising the Court of Appeals for its “carefully restrained and moderate position” in forbidding this monstrous practice only on summation and allowing it during the rest of the trial, ibid. The dissent would also allow a prosecutor to remark at any time — even at summation — on the convenient “fit” between specific elements of a defendant’s testimony and the testimony of others. Ibid. It is only a “general accusation of tailoring” that is forbidden. Ibid. But if the dissent believes that comments which “invite the jury to convict on the basis of conduct as consistent with innocence as with guilt” should be out of bounds, post, at 79 — or at least should be out of bounds in summation — comments focusing on such “fit” must similarly be forbidden. As the dissent acknowledges, “fit” is as likely to result from the defendant’s “sheer innocence” as from anything else. Post, at 85. The dissent maintains that Reagan v. United States, 157 U. S. 301 (1895), is inapposite to the question presented in this case because it considered the effect of an interested-witness instruction on a defendant’s statutory right to testify, rather than on his constitutional right to testify. See id., at 304 (citing Act of Mar. 16, 1878, ch. 37, 20 Stat. 30, as amended, 18 U. S. C. §3481). That is a curious position for the dissent to take. Griffin — the case the dissent claims controls the outcome here — relied almost exclusively on the very statute at issue in Reagan in defining the contours of the Fifth Amendment right prohibiting comment on the failure to testify. After quoting the Court’s description, in an earlier case, of the reasons for the statutory right, see Wilson v. United States, 149 U. S. 60 (1893), the Griffin Court said: “If the words ‘Fifth Amendment’ are substituted for ‘act’ and for ‘statute,’ the spirit of the Self-Incrimination Clause is reflected.” 380 U. S., at 613-614. It is eminently reasonable to consider that a questionable manner of constitutional exegesis, see Mitchell v. United States, 526 U. S. 314, 336 (1999) (Scalia, J., dissenting); it is not reasonable to make Griffin the very centerpiece of one’s case while simultaneously denying that the statute construed in Reagan (and Griffin) has anything to do with the meaning of the Constitution. The interpretation of the statute in Reagan is in fact a much more plausible indication of constitutional understanding than the application of the statute in Griffin: The Constitution must have allowed what Reagan said the statute permitted, because otherwise the Court would have been interpreting the statute in a manner that rendered it void. Griffin, on the other hand, relied upon the much shakier proposition that a practice which the statute prohibited must be prohibited by the Constitution as well. It is hard to understand how Justice Stevens reconciles the unquestionable propriety of the standard interested-witness instruction with his conclusion that comment upon the opportunity to tailor, although it is constitutional, “demean[s] [the adversary] process” and “should be discouraged.” Post, at 76 (opinion concurring in judgment). Our decision, in any event, is addressed to whether the comment is permissible as a constitutional matter, and not to whether it is always desirable as a matter of sound trial practice. The latter question, as well as the desirability of putting prosecutorial comment into proper perspective by judicial instruction, are best left to trial courts, and to the appellate courts which routinely review their work. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice O’Connor delivered the opinion of the Court. Title 28 U. S. C. § 2244(d)(2) (1994 ed., Supp. V) provides: “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” This case presents the question whether a federal habeas corpus petition is an “application for State post-conviction or other collateral review” within the meaning of this provision. I In 1992, several judgments of conviction for robbery were entered against respondent Sherman Walker in the New York state courts. The last of these convictions came in June 1992, when respondent pleaded guilty to robbery in the first degree in the New York Supreme Court, Queens County. Respondent was sentenced to 7 to 14 years in prison on this conviction. Respondent unsuccessfully pursued a number of state remedies in connection with his convictions. It is unnecessary to describe all of these proceedings herein. Respondent’s last conviction was affirmed on June 12, 1995. Respondent was later denied leave to appeal to the New York Court of Appeals. Respondent also sought a writ of error coram nobis, which the Appellate Division denied on March 18,1996. Respondent’s last conviction became final in April 1996, prior to the April 24, 1996, effective date of the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214. In a single document dated April 10,1996, respondent filed a complaint under Rev. Stat. § 1979, 42 U. S. C. § 1983, and a petition for habeas corpus under 28 U. S. C. §2254 in the United States District Court for the Eastern District of New York. On July 9, 1996, the District Court dismissed the complaint and petition without prejudice. With respect to the habeas petition, the District Court, citing § 2254(b), concluded that respondent had not adequately set forth his claim because it was not apparent that respondent had exhausted available state remedies. The District Court noted that, for example, respondent had failed to specify the claims litigated in the state appellate proceedings relating to his robbery convictions. On May 20, 1997, more than one year after AEDPA’s effective date, respondent filed another federal habeas petition in the same District Court. It is undisputed that respondent had not returned to state court since the dismissal of his first federal habeas filing. On May 6, 1998, the District Court dismissed the petition as time barred because respondent had not filed the petition within a “reasonable time” from AEDPA’s effective date. The United States Court of Appeals for the Second Circuit reversed the District Court’s judgment, reinstated the habeas petition, and remanded the case for further proceedings. Walker v. Artuz, 208 F. 3d 357 (2000). The Court of Appeals noted at the outset that, because respondent’s conviction had become final prior to AEDPA’s effective date, he had until April 24,1997, to file his federal habeas petition. The court also observed that the exclusion from the limitation period of the time during which respondent’s first federal habeas petition was pending in the District Court would render the instant habeas petition timely. The Court of Appeals held that respondent’s first federal habeas petition had tolled the limitation period because it was an application for “other collateral review” within the meaning of § 2244(d)(2). The court characterized the disjunctive “or” between “post-conviction” and “other collateral” as creating a “distinct break” between two kinds of review. Id., at 359. The court also stated that application of the word “State” to both “post-conviction” and “other collateral” would create a “linguistic oddity” in the form of the construction “State other collateral review.” Id., at 360. The court further reasoned that the phrase “other collateral review” would be meaningless if it did not refer to federal habeas petitions. The court therefore concluded that the word “State” modified only “post-conviction.” The Court of Appeals also found no conflict between its interpretation of the statute and the purpose of AEDPA. The court found insteád that its construction would promote the goal of encouraging petitioners to file their federal habeas applications as soon as possible. We granted certiorari, 531 U. S. 991 (2000), to resolve a conflict between the Second Circuit’s decision and the decisions of three other Courts of Appeals. See Jiminez v. Rice, 222 F. 3d 1210 (CA9 2000); Grooms v. Johnson, 208 F. 3d 488 (CA5 1999) (per curiam); Jones v. Morton, 195 F. 3d 153 (CA3 1999). One other Court of Appeals has since adopted the Second Circuit’s view. Petrick, v. Martin, 236 F. 3d 624 (CA10 2001). We now reverse. II Our task is to construe what Congress has enacted. We begin, as always, with the language of the statute. See, e. g., Williams v. Taylor, 529 U. S. 420, 431 (2000); Public Employees Retirement System of Ohio v. Betts, 492 U. S. 158, 175 (1989); Watt v. Energy Action Ed. Foundation, 454 U. S. 151, 162 (1981). Respondent reads § 2244(d)(2) to apply the word “State” only to the term “post-conviction” and not to the phrase “other collateral.” Under this view, a properly filed federal habeas petition tolls the limitation period. Petitioner contends that the word “State” applies to the entire phrase “post-conviction or other collateral review.” Under this view, a properly filed federal habeas petition does not toll the limitation period. We believe that petitioner’s interpretation of § 2244(d)(2) is correct for several reasons. To begin with, Congress placed the word “State” before “post-conviction or other collateral review” without specifically naming any kind of “Federal” review. The essence of respondent’s position is that Congress used the phrase “other collateral review” to incorporate federal habeas petitions into the class of applications for review that toll the limitation period. But a comparison of the text of § 2244(d)(2) with the language of other AEDPA provisions supplies strong evidence that, had Congress intended to include federal habeas petitions within the scope of § 2244(d)(2), Congress would have mentioned “Federal” review expressly. In several other portions of AEDPA, Congress specifically used both the words “State” and “Federal” to denote state and federal proceedings. For example, 28 U. S. C. §2254(i) (1994 ed., Supp. V) provides: “The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.” Likewise, the first sentence of 28 U. S. C. § 2261(e) (1994 ed., Supp. V) provides: “The ineffectiveness or incompetence of counsel during State or Federal post-conviction proceedings in a capital case shall not be a ground for relief in a proceeding arising under section 2254.” The second sentence of § 2261(e) states: “This limitation shall not preclude the appointment of different counsel, on the court’s own motion or at the request of the prisoner, at any phase of State or Federal post-conviction proceedings on the basis of the ineffectiveness or incompetence of counsel in such proceedings.” Finally, 28 U. S. C. § 2264(a)(3) (1994 ed., Supp. V) excuses a state capital prisoner’s failure to raise a claim properly in state court where the failure is “based on a factual predicate that could not have been discovered through the exercise of due diligence in time to present the claim for State or Federal post-conviction review.” Section 2244(d)(2), by contrast, employs the word “State,” but not the word “Federal,” as a modifier for “review.” It is well settled that “‘[wjhere Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’ ” Bates v. United States, 522 U. S. 23, 29-30 (1997) (quoting Russello v. United States, 464 U. S. 16, 23 (1983)). We find no likely explanation for Congress’ omission of the word “Federal” in § 2244(d)(2) other than that Congress did not intend properly filed applications for federal review to toll the limitation period. It would be anomalous, to say the least, for Congress to usher in federal review under the generic rubric of “other collateral review” in a statutory provision that refers expressly to “State” review, while denominating expressly both “State” and “Federal” proceedings in other parts of the same statute. The anomaly is underscored by the fact that the words “State” and “Federal” are likely to be of no small import when Congress drafts a statute that governs federal collateral review of state court judgments. Further, were we to adopt respondent’s construction of the statute, we would render the word “State” insignificant, if not wholly superfluous. “It 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) (quoting Montclair v. Ramsdell, 107 U. S. 147, 152 (1883)); see also Williams v. Taylor, 529 U. S. 362, 404 (2000) (describing this rule as a “cardinal principle of statutory construction”); Market Co. v. Hoffman, 101 U. S. 112, 115 (1879) (“As early as in Bacon’s Abridgment, sect. 2, it was said 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’”). We are thus “reluctan[t] to treat statutory terms as surplusage” in any setting. Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687, 698 (1995); see also Ratzlaf v. United States, 510 U. S. 135, 140 (1994). We are especially unwilling to do so when the term occupies so pivotal a place in the statutory scheme as does the word “State” in the federal habeas statute. But under respondent’s rendition of § 2244(d)(2), Congress’ inclusion of the word “State” has no operative effect on the scope of the provision. If the phrase “State post-conviction or other collateral review” is construed to encompass both state and federal collateral review, then the. word “State” places no constraint on the class of applications for review that toll the limitation period. The clause instead would have precisely the same content were it to read “post-conviction or other collateral review.” The most that could then be made of the word “State” would be to say that Congress singled out applications for “State post-conviction” review as one example from the universe of applications for collateral review. Under this approach, however, the word “State” still does nothing to delimit the entire class of applications for review that toll the limitation period. A construction under which the word “State” does nothing more than further modify “post-conviction” relegates “State” to quite an insignificant role in the statutory provision. We believe that our duty to “give each word some operative effect” where possible, Walters v. Metropolitan Ed. Enterprises, Inc., 519 U. S. 202, 209 (1997), requires more in this context. The Court of Appeals characterized petitioner’s interpretation as producing the “linguistic oddity” of “State other collateral review,” which is “an ungainly construction that [the Court of Appeals did] not believe Congress intended.” 208 F. 3d, at 360. But nothing precludes the application of the word “State” to the entire phrase “post-conviction or other collateral review,” regardless of the resulting construction that one posits. The term “other collateral” is easily understood as a unit to which “State” applies just as “State” applies to “post-conviction.” Moreover, petitioner’s interpretation does not compel the verbal formula hypothesized by the Court of Appeals. Indeed, the ungainliness of “State other collateral review” is a very good reason why Congress might have avoided that precise verbal formulation in the first place. The application of the word “State” to the phrase “other collateral review” more naturally yields the understanding “other State collateral review.” The Court of Appeals also reasoned that petitioner’s reading of the statute fails to give operative effect to the phrase “other collateral review.” The court claimed that “the phrase ‘other collateral review’ would be meaningless if it did not refer to federal habeas petitions.” Ibid. This argument, however, fails because it depends on the incorrect premise that there can be no form of state “collateral” review “other” than state “post-conviction” review within the meaning of § 2244(d)(2). To the contrary, it is possible for “other collateral review” to include review of a state court judgment that is not a criminal conviction. Section 2244(d)(l)’s 1-year limitation period applies to “an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” Section 2244(d)(2) provides for tolling during the pendency of “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim.” Nothing in the language of these provisions requires that the state court judgment pursuant to which a person is in custody be a criminal conviction. Nor does 28 U. S. C. §2254 (1994 ed. and Supp. V) by its terms apply only to those in custody pursuant to a state criminal conviction. See, e.g., § 2254(a) (“a person in custody pursuant to the judgment of a State court”); § 2254(b)(1) (“a person in custody pursuant to the judgment of a State court”); § 2254(d) (“a person in custody pursuant to the judgment of a State court”); § 2254(e)(1) (“a person in custody pursuant to the judgment of a State court”). Incarceration pursuant to a state criminal conviction may be by far the most common and most familiar basis for satisfaction of the “in custody” requirement in §2254 cases. But there are other types of state court judgments pursuant to which a person may be held in custody within the meaning of the federal habeas statute. For example, federal habeas corpus review may be available to challenge the legality of a state court order of civil commitment or a state court order of civil contempt. See, e. g., Francois v. Henderson, 850 F. 2d 231 (CA5 1988) (entertaining a challenge brought in a federal habeas petition under §2254 to a state court’s commitment of a person to a mental institution upon a verdict of not guilty by reason of insanity); Leonard v. Hammond, 804 F. 2d 838 (CA4 1986) (holding that constitutional challenges to civil contempt orders for failure to pay child support were cognizable only in a habeas corpus action). These types of state court judgments neither constitute nor require criminal convictions. Any state collateral review that is available with respect to these judgments, strictly speaking, is not post-conviction review. Accordingly, even if “‘“State post-conviction review” means all collateral review of a conviction provided by a state/ ” 208 F. 3d, at 360 (quoting Barrett v. Yearwood, 63 F. Supp. 2d 1245, 1250 (ED Cal. 1999)), the phrase “other collateral review” need not include federal habeas petitions in order to have independent meaning. Congress also may have employed the construction “post-conviction or other collateral” in recognition of the diverse terminology that different States employ to represent the different forms of collateral review that are available after a conviction. In some jurisdictions, the term “post-conviction” may denote a particular procedure for review of a conviction that is distinct from other forms of what conventionally is considered to be postconviction review. For example, Florida employs a procedure that is officially entitled a “Motion to Vacate, Set Aside, or Correct Sentence.” Fla. Rule Crim. Proe. 3.850 (2001). The Florida courts have commonly referred to a Rule 3.850 motion as a “motion for post-conviction relief” and have distinguished this procedure from other vehicles for collateral review of a criminal conviction, such as a state petition for habeas corpus. See, e. g., Bryant v. State, 780 So. 2d 978, 979 (Fla. App. 2001) (“[A] petition for habeas corpus cannot be used to circumvent the two-year period for filing motions for post-conviction relief”); Finley v. State, 394 So. 2d 215, 216 (Fla. App. 1981) (“[T]he remedy of habeas corpus is not available as a substitute for post-conviction relief under Rule 3.850”). Congress may have refrained from exclusive reliance on the term “post-conviction” so as to leave no doubt that the tolling provision applies to all types of state collateral review available after a conviction and not just to those denominated “post-conviction” in the parlance of a particular jurisdiction. Examination of another AEDPA provision also demonstrates that “other collateral” need not refer to any form of federal review in order to have meaning. Title 28 U. S. C. §2268 (1994 ed., Supp. V) establishes the limitation period for filing § 2254 petitions in state capital cases that arise from jurisdictions meeting the “opt-in” requirements of §2261. Section 2263(b)(2) provides that the limitation period “shall be tolled from the date on which the first petition for post-conviction review or other collateral relief is filed until the final State court disposition of such petition.” The reference to “the final State court disposition of such petition” makes it clear that only petitions filed in state court, and not petitions for federal review, toll the limitation period in capital cases. Congress therefore used the phrases “post-conviction review” and “other collateral relief” in a disjunctive clause where the term “other collateral,” whatever its precise content, could not possibly include anything federal within its ambit. This illustration vitiates any suggestion that “other collateral” relief or review must include federal relief or review in order for the term to have any significance apart from “post-conviction” review. Consideration of the competing constructions in light of AEDPA’s purposes reinforces the conclusion that we draw from the text. Petitioner’s interpretation of the statute is consistent with “AEDPA’s purpose to further the principles of comity, finality, and federalism.” Williams, 529 U. S., at 436. Specifically, under petitioner’s' construction, § 2244(d)(2) promotes the exhaustion of state remedies while respecting the interest in the finality of state court judgments. Under respondent’s interpretation, however, the provision would do far less to encourage exhaustion prior to seeking federal habeas review and would hold greater potential to hinder finality. The exhaustion requirement of § 2254(b) ensures that the state courts have the opportunity fully to consider federal-law challenges to a state custodial judgment before the lower federal courts may entertain a collateral attack upon that judgment. See, e. g., O’Sullivan v. Boerckel, 526 U. S. 838, 845 (1999) (“[Tjhe exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts”); Rose v. Lundy, 455 U. S. 509, 518-519 (1982) (“A rigorously enforced total exhaustion rule will encourage state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error”). This requirement “is principally designed to protect the state courts’ role in the enforcement of federal law and prevent disruption of state judicial proceedings.” Id., at 518. The exhaustion rule promotes comity in that “ ‘it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.’ ” Ibid, (quoting Darr v. Burford, 339 U. S. 200, 204 (1950)); see also O’Sullivan, supra, at 844 (“Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief”). The 1-year limitation period of § 2244(d)(1) quite plainly serves the well-recognized interest in the finality of state court judgments. See generally Calderon v. Thompson, 523 U. S. 538, 555-556 (1998). This provision reduces the potential for delay on the road to finality by restricting the time that a prospective federal habeas petitioner has in which to seek federal habeas review. The tolling provision of § 2244(d)(2) balances the interests served by the exhaustion requirement and the limitation period. Section 2244(d)(2) promotes the exhaustion of state remedies by protecting a state prisoner’s ability later to apply for federal habeas relief while state remedies are being pursued. At the same time, the provision limits the harm to the interest in finality by according tolling effect only to “properly filed application^] for State post-conviction or other collateral review.” By tolling the limitation period for the pursuit of state remedies and not during the pendency of applications for federal review, § 2244(d)(2) provides a powerful incentive for litigants to exhaust all available state remedies before proceeding in the lower federal courts. But if the statute were construed so as to give applications for federal review the same tolling effect as applications for state collateral review, then § 2244(d)(2) would furnish little incentive for individuals to seek relief from the state courts before filing federal habeas petitions. The tolling provision instead would be indifferent between state and federal filings. While other statutory provisions, such as § 2254(b) itself, of course, would still provide individuals with good reason to exhaust, § 2244(d)(2) would be out of step with this design. At the same time, respondent’s interpretation would further undermine the interest in finality by creating more potential for delay in the adjudication of federal law claims. A diminution of statutory incentives to proceed first in state court would also increase the risk of the very piecemeal litigation that the exhaustion requirement is designed to reduce. Cf. Rose, 455 U. S., at 520. We have observed that “strict enforcement of the exhaustion requirement will encourage habeas petitioners to exhaust all of their claims in state court and to present the federal court with a single habeas petition.” Ibid. But were we to adopt respondent’s construction of § 2244(d)(2), we would dilute the efficacy of the exhaustion requirement in achieving this objective. Tolling the limitation period for a federal habeas petition that is dismissed without prejudice would thus create more opportunities for delay and piecemeal litigation without advancing the goals of comity and federalism that the exhaustion requirement serves. We do not believe that Congress designed the statute in this manner. The Court of Appeals reasoned that its interpretation of the statute would further Congress’ goal “to spur defendants to file their federal habeas petitions more quickly.” 208 F. 3d, at 361. But this view fails to account sufficiently for AEDPA’s clear purpose to encourage litigants to pursue claims in state court prior to seeking federal collateral review. See, e.g., §§ 2254(b), 2254(e)(2), 2264(a). Section 2244(d)(l)’s limitation period and §2244(d)(2)’s tolling provision, together with §2254(b)’s exhaustion requirement, encourage litigants first to exhaust all state remedies and then to file their federal habeas petitions as soon as possible. Respondent contends that petitioner’s construction of the statute creates the potential for unfairness to litigants who file timely federal habeas petitions that are dismissed without prejudice after the limitation period has expired. But our sole task in this case is one of statutory construction, and upon examining the language and purpose of the statute, we are convinced that § 2244(d)(2) does not toll the limitation period during the pendency of a federal habeas petition. We also note that, when the District Court dismissed respondent’s first federal habeas petition without prejudice, respondent had more than nine months remaining in the limitation period in which to cure the defects that led to the dismissal. It is undisputed, however, that petitioner neither returned to state court nor filed a nondefective federal habeas petition before this time had elapsed. Respondent’s May 1997 federal habeas petition also contained claims different from those presented in his April 1996 petition. In light of these facts, we have no occasion to address the alternative scenarios that respondent describes. We also have no occasion to address the question that Justice Stevens, raises concerning the availability of equitable tolling. We hold that an application for federal habeas corpus review is not an “application for State post-conviction or other collateral review” within the meaning of 28 U. S. C. § 2244(d)(2). Section 2244(d)(2) therefore did not toll the limitation period during the pendency of respondent’s first federal habeas petition. 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. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Douglas delivered the opinion of the Court. Robert Michael was trustee in bankruptcy of the Central Forging Co. and Donald Reifsnyder was his counsel. Maxi Manufacturing Co. was a competitor of Central and one of its creditors. George Fenner and respondent Harry S. Knight were attorneys for Maxi. After negotiations which it is unnecessary to relate here, a plan of reorganization under ch. X of the Bankruptcy Act, 52 Stat. 883, 11 U. S. C. § 501 et seq., was approved by the court and accepted by more than two-thirds of the creditors. Under this plan Maxi was to acquire all the assets of Central; the stockholders of Central were to receive nothing; the secured creditors of Central were to receive 20 per cent and its unsecured creditors 5 per cent of their claims in bonds of Maxi; and all taxes, costs, and expenses of the reorganization were to be paid in full in cash by the trustee. The cash requirements of the plan were to be furnished by Maxi. The amount of those requirements and the nature of Maxi’s commitment are sources of the present controversy. Michael and Reifsnyder concededly obtained funds in connection with the reorganization for which they did not account. It is the theory of the prosecution that those funds were part of the bankruptcy estate. It is the theory of the defense that they were gifts by Maxi of its own property. There was evidence (including Michael’s testimony in this case and one construction of respondent’s testimony concerning the same transactions in an earlier contempt case against Michael) that Maxi agreed to pay $26,404.33 in cash for Central’s net current assets in addition to the $17,000 in bonds. If this version of the transaction were believed, there was a scheme to value the assets of Central at $3,000 less than $26,404.33 and to divert the $3,000 to Michael’s and Reifsnyder’s own ends. There was another version of this phase of the plan which is also supported by evidence, viz. that Maxi was to pay in cash all expenses of the reorganization provided they did not exceed $26,404.33. In this view the difference between $26,404.33 and the expenses allowed by the Court, $23,404.33, was Maxi’s to do with as it pleased. The court confirmed the plan and ordered the transfer of all of Central’s assets to Maxi on receipt of the bonds and on payment of the costs and expenses as allowed by the court, “within the limits of the funds as set forth in the Trustee’s report filed April 15, 1942.” That report listed the net current assets of Central at $23,404.33. There was some evidence that the value of those assets had been falsified in the report by deducting $3,000 from the accounts receivable. The expenses approved by the court and paid by Maxi included allowances for the fees and expenses of Michael and Reifsnyder. Knight arranged for Maxi also to draw a check for $3,000 to Fenner which Fenner cashed and, after deducting $500 for income tax, paid over to Michael and Reifsnyder who never accounted to the court for it. Knight and Fenner were indicted for aiding and abetting Michael to appropriate property of the bankruptcy estate in violation of the Bankruptcy Act, 30 Stat. 554, as amended, 11 U. S. C. § 52 (a), and for conspiring with Michael and others to do the same. Knight and Fenner were found guilty by a jury on all counts. Knight was fined $1,000. The Court of Appeals reversed his conviction and directed entry of a judgment of acquittal, one judge dissenting. 169 F. 2d 1001. The case is here on a petition for certiorari which we granted because of the importance of the ruling in the administration of the Bankruptcy Act. There was substantial evidence that Maxi agreed to pay $26,404.33 for the net current assets of Central and that Knight was party to a scheme to divert $3,000 of that consideration to the personal ends of Michael and Reifsnyder. It was therefore an improper interference with the jury’s function for the Court of Appeals to reject that theory of the case and to accept one which to it seemed more credible. See Glasser v. United States, 315 U. S. 60, 80; Kotteakos v. United States, 328 U. S. 750, 763-764. But even if, as the defense urges, Maxi only agreed to pay expenses up to $26,404.33, the result is the same. Maxi in fact paid that amount. It was paid in connection with the reorganization. It was paid for services allegedly rendered by Michael and Reifsnyder in the proceedings. It was paid secretly and in a devious way. The assets of the estate which were transferred to Maxi were worth $26,404.33. This is a substantial showing that $26,404.33 was in fact paid for the assets and that the form of the arrangement served only to syphon a part of the consideration to Michael and Reifsnyder without court approval. All the consideration which is paid for a bankrupt’s assets becomes part of the estate. No device or arrangement, however subtle, can subtract or divert any of it. It is the substance of the transaction, not its form, which controls. If that requirement were not rigidly enforced, control of the plan of reorganization and control of allowances would pass from the court to the parties. That would subvert the statutory scheme. This consequence is sought to be avoided here by the argument that when the $3,000 was diverted to Michael and Reifsnyder, the rights of creditors and stockholders in the estate had been fixed and all the allowances had been determined. It is therefore said that there would have been no rightful claimants to the money had it been paid into court. By that procedure parties would arrogate to themselves the control over the estate which Congress has entrusted to the bankruptcy judge. Reversed. Mr. Justice Murphy, Mr. Justice Jackson, and Mr. Justice Rutledge took no part in the consideration or decision of this case. “A person shall be punished by imprisonment for a period of not to exceed five years or by a fine of not more than $5,000, or both, upon conviction of the offense of having knowingly and fraudulently appropriated to his own use, embezzled, spent, or unlawfully transferred any property or secreted or destroyed any document belonging to the estate of a bankrupt which came into his charge as trustee, receiver, custodian, marshal, or other officer of the court.” Even after confirmation of the plan of reorganization under § 221 of ch. X, it may be altered or modified pursuant to the procedure prescribed in § 222. See §§ 241-244 of ch. X; Leiman v. Guttman, 336 U. S. 1. See note 2, supra. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Stevens delivered the opinion of the Court. The question presented, is whether the interstate commerce requirement of antitrust jurisdiction is satisfied by allegations that petitioners conspired to exclude respondent, a duly licensed and practicing physician and surgeon, from the market for ophthalmological services in Los Angeles because he refused to follow an unnecessarily costly surgical procedure. In 1987, respondent Dr. Simon J. Pinhas filed a complaint in District Court alleging that petitioners Summit Health, Ltd. (Summit), Midway Hospital Medical Center (Midway), its medical staff, and others had entered into a conspiracy to drive him out of business “so that other ophthalmologists and eye physicians [including four of the petitioners] will have a greater share of the eye care and ophthalmic surgery in Los Angeles.” App. 39. Among his allegations was a claim that the conspiracy violated §1 of the Sherman Act. The District Court granted defendants’ (now petitioners’) motion to dismiss the First Amended Complaint (complaint) without leave to amend, App. 315, but the United States Court of Appeals for the Ninth Circuit reinstated the antitrust claim. 894 F. 2d 1024 (1989). We granted certiorari, 496 U. S. 935 (1990), to consider petitioners’ contention that the complaint fails to satisfy the jurisdictional requirements of the Sherman Act, as interpreted in McLain v. Real Estate Bd. of New Orleans, Inc., 444 U. S. 232 (1980), because it does not describe a factual nexus between the alleged boycott and interstate commerce. I Because this case comes before us from the granting of a motion to dismiss on the pleadings, we must assume the truth of the material facts as alleged in the complaint. Respondent, a diplómate of the American Board of Ophthalmology, has earned a national and international reputation as a specialist in corneal eye problems. App. 7. Since October 1981, he has been a member of the staff of Midway in Los An-geles, and because of his special skills, has performed more eye surgical procedures, including cornea transplants and cataract removals, than any other surgeon at the hospital. Ibid. Prior to 1986, most eye surgeries in Los Angeles were performed by a primary surgeon with the assistance of a second surgeon. Id., at 8. This practice significantly increased the cost of eye surgery. In February of that year, the administrators of the Medicare program announced that they would no longer reimburse physicians for the services of assistants, and most hospitals in southern California abolished the assistant surgeon requirement. Respondent, and certain other ophthalmologists, asked Midway to abandon the requirement, but the medical staff refused to do so. Ibid. Respondent explained that because Medicare reimbursement was no longer available, the requirement would cost him about $60,000 per year in payments to competing surgeons for assistance that he did not need. Id., at 9. Although respondent expressed a desire to maintain the preponderance of his practice at Midway, he nevertheless advised the hospital that he would leave if the assistant surgeon requirement were not eliminated. Ibid. Petitioners responded to respondent’s request to forgo an assistant in two ways. First, Midway and its corporate parent offered respondent a “sham” contract that provided for payments of $36,000 per year (later increased by oral offer to $60,000) for services that he would not be asked to perform. Ibid. Second, when respondent refused to sign or return the “sham” contract, petitioners initiated peer review proceedings against him and summarily suspended, and subsequently terminated, his medical staff privileges. Id., at 10. The proceedings were conducted in an unfair manner by biased decisionmakers, and ultimately resulted in an order upholding one of seven charges against respondent, and imposing severe restrictions on his practice. When this action was commenced, petitioners were preparing to distribute an adverse report about respondent that would “preclude him from continued competition in the market place, not only at defendant Midway Hospital [but also]... in California, if not the United States.” Id., at 40. The defendants allegedly planned to disseminate the report “to all hospitals which Dr. Pinhas is a member [sic], and to all hospitals to which he may apply so as to secure similar actions by those hospitals, thus effectuating a boycott of Dr. Pinhas.” Ibid. The complaint alleges that petitioner Summit owns and operates 19 hospitals, including Midway, and 49 other health care facilities in California, six other States, and Saudia Arabia. Id., at 3. Summit, Midway, and each of the four ophthalmic surgeons named as individual defendants, as well as respondent, are all allegedly engaged in interstate commerce. The provision of ophthalmological services affects interstate commerce because both physicians and hospitals serve nonresident patients and receive reimbursement through Medicare payments. Reports concerning peer review proceedings are routinely distributed across state lines and affect doctors' employment opportunities throughout the Nation. In the Court of Appeals, petitioners defended the District Court's dismissal of the complaint on the ground that there was no allegation that interstate commerce would be affected by respondent's removal from the Midway medical staff. The Court of Appeals rejected this argument because "as a matter of practical economics" the hospital's "peer review process in general" obviously affected interstate commerce. 894 F. 2d, at 1032 (citation omitted). The court added: "Pinhas need not, as appellees apparently believe, make the more particularized showing of the effect on interstate commerce caused by the alleged conspiracy to keep him from working. [McLain v. Real Estate Bd. of New Orleans, Inc., 444 U. S., at 242-243]. He need only prove that peer-review proceedings have an effect on interstate commerce, a fact that can hardly be disputed. The proceedings affect the entire staff at Midway and thus affect the hospital's interstate commerce. Appel-lees' contention that Pinhas failed to allege a nexus with interstate commerce because the absence of Pinhas's services will not drastically affect the interstate commerce of Midway therefore misses the mark and must be rejected." Ibid. II Congress enacted the Sherman Act in 1890. During the past century, as the dimensions and complexity of our economy have grown, the federal power over commerce, and the concomitant coverage of the Sherman Act, have experienced similar expansion. This history has been recounted before, and we need not reiterate it today. We therefore begin by noting certain propositions that are undisputed in this case. Petitioner Summit, the parent of Midway as well as of several other general hospitals, is unquestionably engaged in interstate commerce. Moreover, although Midway’s primary activity is the provision of health care services in a local market, it also engages in interstate commerce. A conspiracy to prevent Midway from expanding would be covered by the Sherman Act, even though any actual impact on interstate commerce would be “‘indirect’” and “‘fortuitous.’” Hospital Building Co. v. Rex Hospital Trustees, 425 U. S. 738, 744 (1976). No specific purpose to restrain interstate commerce is required. Id., at 745. As a “matter of practical economics,” ibid., the effect of such a conspiracy on the hospital’s “purchases of out-of-state medicines and supplies as well as its revenues from out-of-state insurance companies,” id., at 744, would establish the necessary interstate nexus. This case does not involve the full range of activities conducted at a general hospital. Rather, this case involves the provision of ophthalmological services. It seems clear, however, that these services are regularly performed for out-of-state patients and generate revenues from out-of-state sources; their importance as part of the entire operation of the hospital is evident from the allegations of the complaint. A conspiracy to eliminate the entire ophthalmological department of the hospital, like a conspiracy to destroy the hospital itself, would unquestionably affect interstate commerce. Petitioners contend, however, that a boycott of a single surgeon has no such obvious effect because the complaint does not deny the existence of an adequate supply of other surgeons to perform all of the services that respondent’s current and future patients may ever require. Petitioners argue that respondent’s complaint is insufficient because there is no factual nexus between the restraint on this one surgeon’s practice and interstate commerce. There are two flaws in petitioners’ argument. First, because the essence of any violation of §1 is the illegal agreement itself—rather than the overt acts performed in furtherance of it, see United States v. Kissel, 218 U. S. 601 (1910) — proper analysis focuses, not upon actual consequences, but rather upon the potential harm that would ensue if the conspiracy were successful. As we explained in McLain v. Real Estate Bd. of New Orleans, Inc., 444 U. S. 232 (1980): “If establishing jurisdiction required a showing that the unlawful conduct itself had an effect on interstate commerce, jurisdiction would be defeated by a demonstration that the alleged restraint failed to have its intended anticompetitive effect. This is not the rule of our cases. See American Tobacco Co. v. United States, 328 U. S. 781, 811 (1946); United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 225, n. 59 (1940). A violation may still be found in such circumstances because in a civil action under the Sherman Act, liability may be established by proof of either an unlawful purpose or an anti-competitive effect. United States v. United States Gypsum Co., 438 U. S. 422, 436, n. 13 (1978); see United States v. Container Corp., 393 U. S. 333, 337 (1969); United States v. National Assn. of Real Estate Boards, 339 U. S. 485, 489 (1950); United States v. Socony-Vacuum Oil Co., supra, at 224-225, n. 59.” Id., at 243. Thus, respondent need not allege, or prove, an actual effect on interstate commerce to support federal jurisdiction. Second, if the conspiracy alleged in the complaint is successful, “ ‘as a matter of practical economics’ ” there will be a reduction in the provision of ophthalmological services in the Los Angeles market. McLain, 444 U. S., at 246 (quoting Hospital Building Co. v. Rex Hospital Trustees, 425 U. S., at 745). In cases involving horizontal agreements to fix prices or allocate territories within a single State, we have based jurisdiction on a general conclusion that the defendants’ agreement “almost surely” had a marketwide impact and therefore an effect on interstate commerce, Burke v. Ford, 389 U. S. 320, 322 (1967) (per curiam), or that the agreement “necessarily affect[ed]” the volume of residential sales and therefore the demand for financing and title insurance provided by out-of-state concerns. McLain, 444 U. S., at 246. In the latter case, we explained: “To establish the jurisdictional element of a Sherman Act violation it would .be sufficient for petitioners to demonstrate a substantial effect on interstate commerce generated by respondents’ brokerage activity. Petitioners need not make the more particularized showing of an effect on interstate commerce caused by the alleged conspiracy to fix commission rates, or by those other aspects of respondents’ activity that are alleged to be unlawful.” Id., at 242-243. Although plaintiffs in McLain were consumers of the conspirators’ real estate brokerage services, and plaintiff in this case is a competing surgeon whose complaint identifies only himself as the victim of the alleged boycott, the same analysis applies. For if a violation of the Sherman Act occurred, the case is necessarily more significant than the fate of “just one merchant whose business is so small that his destruction makes little difference to the economy.” Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U. S. 207, 213 (1959) (footnote omitted). The case involves an alleged restraint on the practice of ophthalmological services. The restraint was accomplished by an alleged misuse of a congressionally regulated peer review process, which respondent characterizes as the gateway that controls access to the market for his services. The gateway was closed to respondent, both at Midway and at other hospitals, because petitioners insisted upon adhering to an unnecessarily costly procedure. The competitive significance of respondent’s exclusion from the market must be measured, not just by a particularized evaluation of his own practice, but rather, by a general evaluation of the impact of the restraint on other participants and potential participants in the market from which he has been excluded. We have no doubt concerning the power of Congress to regulate a peer review process controlling access to the market for ophthalmological surgery in Los Angeles. Thus, respondent’s claim that members of the peer review committee conspired with others to abuse that process and thereby deny respondent access to the market for ophthalmological services provided by general hospitals in Los Angeles has a sufficient nexus with interstate commerce to support federal jurisdiction. The judgment of the Court of Appeals is affirmed. It is so ordered. Section 1 of the Sherman Act, 26 Stat. 209, as amended, provides in relevant part: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” 15 U. S. C. § 1. Although the complaint alleged five claims, only the “Fourth Claim for Relief,” the antitrust claim, is before us now. The complaint also named as a defendant the California Board of Medical Quality Assurance (BMQA). The BMQA, however, was dismissed by stipulation. See 894 F. 2d, at 1027, n. 2. “One of the reasons for his success is the rapidity with which he, as distinguished from his competitors, can perform such surgeries. The speed with which such surgery can be completed benefits the patient because the exposure of cut eye tissue is drastically reduced. Some of Dr. Pinhas’ competitors regularly require, on the average, six times the length of surgical time to complete the same procedures as Dr. Pinhas.” App. 7. Respondent was notified, by a letter dated April 13, 1987, that such actions were the result of a “Medical Staff review of [his] medical records, with consideration as to the questions raised regarding: indications for surgery; appropriateness of surgical procedures in light of patient’s medical condition; adequacy of documentation in medical records; and ongoing pattern of identified problems.” Id., at 93. After the Governing Board of Midway affirmed the decision of the peer review committee, but imposed even more stringent conditions on respondent than the committee had imposed, respondent filed a petition for writ of mandate, pursuant to Cal. Civ. Proc. Code Ann. § 1094.5 (West Supp. 1991). 894 F. 2d 1024, 1027 (CA9 1989). On May 17, 1989, the Superior Court of California denied respondent’s request for further relief. App. to Pet. for Cert. A30-A35. Petitioners had already distributed the report, a Business and Professions Code 805 Report, to Cedars-Sinai Medical Center in Los Angeles, which then denied respondent medical staff privileges there. App. to Brief for Respondent a-3. Cedars-Sinai, like Midway, had refused to abolish the assistant surgeon requirement. App. 8. Act of July 2, 1890, oh. 647, § 1, 26 Stat. 209. The floor debates on the Sherman Act reveal, in Senator Sherman's words, an intent to "g[o] as far as the Constitution permits Congress to go . . . ." 20 Cong. Rec. 1167 (1889). For views of the enacting Congress toward the Sherman Act, see 21 Cong. Rec. 2456 (1890); see also United States v. South-Eastern Underwriters Assn., 322 U. S. 533, 555-560 (1944); Apex Hosiery Co. v. Leader, 310 U. S. 469, 493, n. 15 (1940). The Court’s'decisions have long “permitted the reach of the Sherman Act to expand along with expanding notions of congressional power. See Gulf Oil Corp. v. Copp Paving Co., 419 U. S. [186,] 201-202 [(1974)].” Hospital Building Co. v. Rex Hospital Trustees, 425 U. S. 738, 743, n. 2 (1976). See, e. g., Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S. 219, 229-235 (1948). It is firmly settled that when Congress passed the Sherman Act, it “left no area of its constitutional power [over commerce] unoccupied.” United States v. Frankfort Distilleries, Inc., 324 U. S. 293, 298 (1945). Congress “meant to deal comprehensively and effectively with the evils resulting from contracts, combinations and conspiracies in restraint of trade, and to that end to exercise all the power it possessed.” Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 435 (1932). Cf. United States v. Staszcuk, 517 F. 2d 53, 60, n. 17 (CA7) (en banc) (“The federal power to protect the free market may be exercised'to punish conduct which threatens to impair competition even when no actual harm results”), cert. denied, 423 U. S. 837 (1975). See Health Care Quality Improvement Act of 1986, 100 Stat. 3784, 42 U. S. C. § 11101 et seq. The statute provides for immunity from antitrust, and other, actions if the peer review process proceeds in accordance with § 11112. Respondent alleges that the process did not conform with the requirements set forth in §, 11112, such as adequate notice, representation by an attorney, access to a transcript of the proceedings, and the right to cross-examine witnesses. According to the House sponsor of the bill, “[t]he immunity provisions [were] restricted so as not to protect illegitimate actions taken under the guise of furthering the quality of health care. Actions . . . that are really taken for anticompetitive purposes will not be protected under this bill." 132 Cong. Rec. 30766 (1986) (remarks of Rep. Waxman). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Chief Justice Burger delivered the opinion of the Court. A three-judge District Court in the Northern District of Illinois upheld the constitutionality of a provision of the Social Security Act which provides that certain illegitimate children, who cannot qualify for benefits under any other provision of the Act, may obtain benefits if, but only if, the disabled wage-earner parent is shown to have contributed to the child’s support or to have lived with him prior to the parent’s disability. The District Court held that the statute’s classification is rationally related to the legitimate governmental interest of avoiding spurious claims. Jimenez v. Richardson, 353 F. Supp. 1356, 1361 (1973). We noted probable jurisdiction. 414 U.S. 1061. The relevant facts are not in dispute. Ramon Jimenez, a wage earner covered under the Social Security Act, became disabled in April 1963, and became entitled to disability benefits in October 1963. Some years prior to that time, the claimant separated from his wife and began living with Elizabeth Herñandez, whom he never married. Three children were born to them, Magdalena, born August 13, 1963, Eugenio, born January 18, 1965, and Alicia, born February 24, 1968. These children have lived in Illinois with claimant all their lives; he has formally acknowledged them to be his children, has supported and cared for them since their birth, and has been their sole caretaker since their mother left the household late in 1968. Since the parents never married, these children are classified as illegitimate under Illinois law and are unable to inherit from their father because they are nonlegitimated illegitimate children. Ill. Ann. Stat., c. 3, § 12 (Supp. 1974). On August 21,1968, Ramon Jimenez, as the father, filed an application for child’s insurance benefits on behalf of these three children. Magdalena was found to be entitled to child’s insurance benefits under the Social Security Act, and no issue is presented with respect to her claim. The claims of appellants, Eugenio and Alicia, were denied, however, on the ground that they did not meet the requirements of 42 U. S. C. § 416 (h) (3), since neither child’s paternity had been acknowledged or affirmed through evidence of domicile and support before the onset of their father’s disability. In all other respects Eugenio and Alicia are eligible to receive child’s insurance benefits, and their applications were denied solely because they are proscribed illegitimate children who were not dependent on Jimenez at the time of the onset of his disability. Appellants urge that the contested Social Security provision is based upon the so-called “suspect classification” of illegitimacy. Like race and national origin, they argue, illegitimacy is a characteristic determined solely by the accident of birth; it is a condition beyond the control of the children, and it is a status that subjects the children to a stigma of inferiority and a badge of opprobrium. We need not reach appellants’ argument, however, because in the context of this case it is enough that we note, as we did in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972): “The status of illegitimacy has expressed through the ages society’s condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant 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 ineffectual — as well as an unjust — way of deterring the parent. Courts are powerless to prevent the social opprobrium suffered by these hapless children, but the Equal Protection Clause does enable us to strike down discriminatory laws relating to status of birth where . . . the classification is justified by no legitimate state interest, compelling or otherwise.” Id., at 175-176. Conversely, the Secretary urges us to uphold this statutory scheme on the ground that the case is controlled by the Court’s recent ruling in Dandridge v. Williams, 397 U. S. 471 (1970), where we noted: “In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78. ‘The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.' Metropolis Theatre Co. v. City of Chicago, 228 U. S. 61, 69-70. 'A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ McGowan v. Maryland, 366 U. S. 420, 426.” Id., at 485. However, Dandridge involved an equal protection attack upon Maryland’s Aid to Families with Dependent Children program which provided aid in accordance with the family’s standard of need, but limited the maximum grant to $250 per family, regardless of size, thereby reducing the per capita allowance for children of large families. We noted that the AFDC welfare program is a “ ‘scheme of cooperative federalism’ ” and that the “starting point of the statutory analysis must be a recognition that the federal law gives each State great latitude in dispensing its available funds.” Id., at 478. This special deference to Maryland’s statutory approach was necessary because, “[g]iven Maryland’s finite resources, its choice is either to support some families adequately and others less adequately, or not to give sufficient support to any family.” Id., at 479. Here, by contrast, there is no evidence supporting the contention that to allow illegit-imates in the classification of appellants to receive benefits would significantly impair the federal Social Security trust fund and necessitate a reduction in the scope of persons benefited by the Act. On the contrary, the Secretary has persistently maintained that the purpose of the contested statutory scheme is to provide support for dependents of a wage earner who has lost his earning power, and that the provisions excluding some afterborn illegitimates from recovery are designed only to prevent spurious claims and ensure that only those actually entitled to benefit receive payments. Accepting this view of the relevant provisions of the Act, we cannot conclude that the purpose of the statutory exclusion of some afterborn illegitimates is to achieve a necessary allocation of finite resources and, to that extent, Dandridge is distinguishable and not controlling. As we have noted, the primary purpose of the contested Social Security scheme is to provide support for dependents of a disabled wage earner. The Secretary maintains that the Act denies benefits to afterborn illegit-imates who cannot inherit or whose illegitimacy is not solely because of a formal, non obvious defect in their parents’ wedding ceremony, or who are not legitimated, because it is “likely” that these illegitimates, as a class, will not possess the requisite economic dependency on the wage earner which would entitle them to recovery under the Act and because eligibility for such benefits to those illegitimates would open the door to spurious claims. Under this view the Act’s purpose would be to replace only that support enjoyed prior to the onset of disability; no child would be eligible to receive benefits unless the child had experienced actual support from the wage earner prior to the disability, and no child born after the onset of the wage earner’s disability would be allowed to recover. We do not read the statute as supporting that view of its purpose. Under the statute it is clear that illegitimate children born after the wage earner becomes disabled qualify for benefits if state law permits them to inherit from the wage earner, § 416 (h) (2) (A); or if their illegitimacy results solely from formal, nonobvious defects in their parents’ ceremonial marriage, § 416 (h) (2) (B); or if they are legitimated in accordance with state law, § 402 (d)(3)(A). Similarly, legitimate children born after their wage-earning parent has become disabled and legitimate children born before the onset of disability are entitled to benefits regardless of whether they were living with or being supported by the disabled parent at the onset of the disability, §§ 402 (d) (1) and (3). In each of the examples just mentioned, the child is by statute “deemed dependent” upon the parent by virtue of his status and no dependency or paternity need be shown for the child to qualify for benefits. However, nonlegitimated illegitimates in appellants’ position, who cannot inherit under state law and whose illegitimacy does not derive solely from a defect in their parents’ wedding ceremony, are denied a parallel right to the dependency presumption under the Act. Their dilemma is compounded by the fact that the statute denies them any opportunity to prove dependency in order to establish their “claim” to support and, hence, their right to eligibility. § 416 (h) (3) (B). The Secretary maintains that this absolute bar to disability benefits is necessary to prevent spurious claims because “[t]o the unscrupulous person, all that prevents him from realizing . . . gain is the mere formality of a spurious acknowledgment of paternity or a collusive paternity suit with the mother of an illegitimate child who is herself desirous or in need of the additional cash.” Jimenez v. Richardson, 353 F. Supp., at 1361. From what has been outlined it emerges that afterborn illegitimate children are divided into two subclassifica-tions under this statute. One subclass is made up of those (a) who can inherit under state intestacy laws, or (b) who are legitimated under state law, or (c) who are illegitimate only because of some formal defect in their parents’ ceremonial marriage. These children are deemed entitled to receive benefits under the Act without any showing that they are in fact dependent upon their disabled parent. The second subclassification of afterborn illegitimate children includes those who are conclusively denied benefits because they do not fall within one of the foregoing categories and are not entitled to receive insurance benefits under any other provision of the Act. We recognize that the prevention of spurious claims is a legitimate governmental interest and that dependency of illegitimates in appellants’ subclass, as defined under the federal statute, has not been legally established even though, as here, paternity has been acknowledged. As we have noted, the Secretary maintains that the possibility that evidence of parentage or support may be fabricated is greater when the child is not born until after the wage earner has become entitled to benefits. It does not follow, however, that the blanket and conclusive exclusion of appellants’ subclass of illegitimates is reasonably related to the prevention of spurious claims. Assuming that the appellants are in fact dependent on the claimant, 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, and it would discriminate between the two subclasses of afterborn illegit-imates without any basis for the distinction since the potential for spurious claims is exactly the same as to both subclasses. The Secretary does not contend that it is necessarily or universally true that all illegitimates in appellants’ subclass would be unable to establish their dependency and eligibility under the Act if the statute gave them an opportunity to do so. Nor does he suggest a basis for the assumption that all illegitimates who are statutorily deemed entitled to benefits under the Act are in fact dependent upon their disabled parent. Indeed, as we have noted, those illegitimates statutorily deemed dependent are entitled to benefits regardless of whether they were living in, or had ever lived in, a dependent family setting with their disabled parent. Even if children might rationally be classified on the basis of whether they are dependent upon their disabled parent, the Act’s definition of these two subclasses of illegitimates is “over-inclusive” in that it benefits some children who are legitimated, or entitled to inherit, or illegitimate solely because of a defect in the marriage of their parents, but who are not dependent on their disabled parent. Conversely, the Act is “underinclusive” in that it conclusively excludes some illegitimates in appellants’ subclass who are, in fact, dependent upon their disabled parent. Thus, for all that is shown in this record, the two subclasses of illegitimates stand on equal footing, and the potential for spurious claims is the same as to both; hence 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. Schneider v. Rusk, 377 U. S. 163, 168 (1964); Bolling v. Sharpe, 347 U. S. 497, 499 (1954). In the District Court the Secretary, relying on the validity of the statutory exclusion, did not undertake to challenge the assertion that appellants are the children of the claimant, that they lived with the claimant all their lives, that he has formally acknowledged them to be his children, and that he has supported and cared for them since their birth. Accordingly, the judgment is vacated and the case is remanded to provide appellants an opportunity, consistent with this opinion, to establish their claim to eligibility as “children” of the claimant under the Social Security Act. Vacated and remanded. 42 U. S. C. §416 (h)(3). The contested Social Security scheme provides, in essence, that legitimate or legitimated children (42 U. S. C. § 402 (d) (3)), illegitimate children who can inherit their parent’s personal property under the intestacy laws of the State of the insured’s domicile (42 U. S. C. § 416 (h) (2) (A)), and those children who cannot inherit only because their parents’ ceremonial marriage was invalid for nonobvious defects (42 U. S. C. § 416 (h) (2) (B)), are entitled to receive benefits without any further showing of parental support. However, illegitimate children such as Eugenio and Alicia who were not living with or being supported by the applicant at the time the claimant’s period of disabilhy began, and who do not fall into one of the foregoing categories, are not entitled to receive any benefits. 42 U. S. C. § 416 (b)(3). See House-Senate Conference Committee Report on 1965 Amendments to Social Security Act, 111 Cong. Rec. 18387 (1965); Report of the U. S. Advisory Council on Social Security, the Status of the Social Security Program and Recommendations for its Improvement 67 (1965). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Opinion of the Court by Mr. Justice Harlan, announced by Mr. Justice Burton. In November 1954 petitioner was indicted in the Corpus Christi Division of the United States District Court for the Southern District of Texas for willfully attempting to evade federal income taxes by filing false returns for the years 1949, 1950 and 1951. In April 1955 the District Court granted petitioner’s motion to transfer the case to the Laredo Division of the Southern District, finding that petitioner, a prominent political figure, could not obtain a fair trial in the Corpus Christi Division because of local prejudice against him. Deeming itself without power to transfer the case elsewhere than Laredo without the defendant’s consent, the District Court also found against the Government’s claim that it would or might be under “a severe handicap” in trying the petitioner in Laredo. Shortly thereafter, on May 3, 1955, the Government obtained a new indictment against petitioner in the Austin Division of the Western District of Texas for the same offenses. The next day it moved in the Corpus Christi Division for leave to dismiss the first indictment. This motion was granted over the vigorous opposition of the petitioner, and an order of dismissal was entered. Petitioner appealed to the Court of Appeals and, on the Government’s motion, that court (one judge dissenting) dismissed the appeal upon the ground that the order appealed from was not a final order. 225 F. 2d 329. We granted certiorari, directing that the case be heard both on the merits and on the question of appealability. 350 U. S. 861. Since we conclude that the order in question was not appealable, we do not reach the merits. 1. If the Corpus Christi indictment is viewed in isolation from the Austin indictment, an appeal from its dismissal will not lie because petitioner has not been aggrieved. Only one injured by the judgment sought to be reviewed can appeal, and, regarding the Corpus Christi proceeding as a separate prosecution, petitioner has not been injured by its termination in his favor. Lewis v. United States, 216 U. S. 611. So far as petitioner’s standing to appeal is concerned, it makes no difference whether the dismissal still leaves him open to further prosecution, or whether, as petitioner contends, it bars his prosecution elsewhere than in Laredo because the transfer order operated to give him a vested right to be tried only there: The testing of the effect of the dismissal order must abide petitioner’s trial, and only then, if convicted, will he have been aggrieved. Cf. Heike v. United States, 217 U. S. 423. 2. If the Corpus Christi and Austin indictments be viewed together as parts of a single prosecution, petitioner fares no better. For then the order dismissing the Corpus Christi indictment would not be a final order. The considerations underlying the historic requirement of “finality” in federal appellate procedure require no elaboration at this late date. See Cobbledick v. United States, 309 U. S. 323. In general, a “judgment” or “decision” is final for the purpose of appeal only “when it terminates the litigation between the parties on the merits of the case, and leaves nothing to be done but to enforce by execution what has been determined.” St. Louis, I. M. & S. R. Co. v. Southern Express Co., 108 U. S. 24, 28. This rule applies in criminal as well as civil cases. Berman v. United States, 302 U. S. 211, 212-213. It is argued that the order dismissing the Corpus Christi indictment was “final” because it (a) terminated the prosecution under that indictment, and (b) cannot be reviewed otherwise than upon this appeal. We think neither point well taken. “Final judgment in a criminal case means sentence. The sentence is the judgment.” Berman v. United States, supra, at p. 212. And viewing the two indictments together as a single prosecution, the Austin indictment being as it were a superseding indictment, petitioner has not yet been tried, much less convicted and sentenced. The order dismissing the Corpus Christi indictment was but an interlocutory step in this prosecution, and its review must await the conclusion of the “whole matter litigated” between the Government and the petitioner — namely, “the right to convict the accused of the crime charged in the indictment.” Heike v. United States, supra, at p. 429. Nor is there substance to the claim that the Corpus Christi dismissal will not be reviewable if petitioner is convicted under the Austin indictment. If petitioner is correct in his contention that the Laredo transfer precluded the Government from proceeding elsewhere, he could not be tried in Austin, and, if petitioner preserves the point, he will certainly be entitled to have the Corpus Christi dismissal reviewed upon an appeal from a judgment of conviction under the Austin indictment. To hold this order “final” at this stage of the prosecution would defeat the long-standing statutory policy against piecemeal appeals. 3. We also find untenable petitioner’s secondary contention that, even if not final, the Corpus Christi dismissal falls within the exceptions to the rule of “finality” recognized by this Court in such cases as Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, and Swift & Company Packers v. Compania Columbiana del Caribe, 339 U. S. 684. In those cases, orders made during the course of a litigation were held appealable because they related to matters outside the stream of the main action and would not be subject to effective review as part of the final judgment in the action. Unlike the orders in those cases, this order was but a “step toward final disposition of the merits of the case” and will “be merged in the final judgment.” Cohen v. Beneficial Industrial Loan Corp., supra, at p. 546. The lack of an appeal now will not “deny effective review of a claim fairly severable from the context of a larger litigious process.” Swift & Company Packers v. Compania Columbiana del Caribe, supra, at p. 689. True, the petitioner will have to hazard a trial under the Austin indictment before he can get a review of whether he should have been tried in Laredo under the Corpus Christi indictment, but “bearing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship.” Cobbledick v. United States, supra, at p. 325. 4. With his petition for certiorari, petitioner also filed a motion, Docket No. 202, Misc., for leave to file an original petition in this Court for writs of mandamus and prohibition to the Southern and Western District Courts, designed to require petitioner’s trial in Laredo. Although this application has stood in abeyance pending determination of the questions involved on the writ of certiorari, it is appropriate to dispose of it now, it having been fully argued in the present proceeding. We think that extraordinary writs should not issue. Such writs may go only in aid of appellate jurisdiction. 28 U. S. C. § 1651. The power to issue them is discretionary and it is sparingly exercised. Rule 30 of the Revised Rules of this Court and the cases cited therein. This is not a case where a court has exceeded or refused to exercise its jurisdiction, see Roche v. Evaporated Milk Assn., 319 U. S. 21, 26, nor one where appellate review will be defeated if a writ does not issue, cf. Maryland v. Soper, 270 U. S. 9, 29-30. Here the most that could be claimed is that the district courts have erred in ruling on matters within their jurisdiction. The extraordinary writs do not reach to such cases; they may not be used to thwart the congressional policy against piecemeal appeals. Roche v. Evaporated Milk Assn., supra, at p. 30. We conclude that the Court of Appeals properly dismissed the appeal, and its judgment must be Affirmed. The motion for leave to file a petition for writs of mandamus and prohibition in No. 202, Misc., is Denied. Section 145 (b) of the Internal Revenue Code of 1939, 53 Stat. 62. Fed. Rules Crim. Proc., 21: (a) “The court upon motion of the defendant shall transfer the proceeding as to him to another district or division if the court is satisfied that there exists in the district or division where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that district or division.” (c) “When a transfer is ordered the clerk shall transmit to the clerk of the court to which the proceeding is transferred all papers in the proceeding or duplicates thereof and any bail taken, and the prosecution shall continue in that district or division.” Petitioner’s motion sought a transfer solely to Laredo. In his brief before the District Court, he stated: “We wish to be clearly understood that if the case is not to be transferred to Laredo we prefer that it remain in Corpus Christi.” 17 F. R. D. 512, 518-520. This opinion is illuminated by the later remarks of the same judge quoted in n. 7, infra. The Austin indictment differed from the Corpus Christi indictment only in its allegations as to venue. Under 18 U. S. C. § 3237, petitioner was indictable both in the Western District (where his returns were filed) and in the Southern District (where the returns were prepared and forwarded for filing). Fed. Rules Crim. Proc., 48 (a): “The Attorney General or the United States attorney may by leave of court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial without the consent of the defendant.” The petitioner opposed the motion on the ground that it was an attempt to circumvent the District Court’s prior order transferring the case to Laredo. It is clear that the principal purpose of the Government in obtaining the Austin indictment was to avoid a trial in Laredo, which it regarded as “the defendant’s seat of political power,” and that this purpose was made manifest to District Judge Kennerly who (together with Judge Allred) had acted on petitioner’s earlier transfer application. In granting the motion to dismiss, Judge Kennerly stated: “I reached the conclusion [upon petitioner’s earlier motion to transfer the case to Laredo] that the case should not be tried in Corpus Christi, and that defendant’s motion for change of venue should be granted. “In reaching that conclusion, or rather in examining the record, I reached this further conclusion, that I gravely doubted whether in the administration of justice generally, the case should be tried in this district at all. . . . “But when I came to examine the law, I found that I was without power to transfer the case outside of the Southern District of Texas. ... If I had had that authority I would have sent it to Amarillo, or Sherman, or Texarkana, or some of those places as far removed from the scene of the troubles as I could, or as I could find. I would .have done that not, as I say, to favor either the defendant or the Government, because I feel that justice in the case would be best administered by transferring the case to one of those places. “But as stated, I could not do that as I understand the law. I then discovered that I could not transfer the case to any other division of the district except Laredo. . . . [S]o the case was transferred there. “Now we come to this motion by the Government to dismiss the case because of the fact that a new indictment covering the same matter has been presented in the Western District .... “. . . evidently there is some discretion in the Court as to the matter of whether the case should or should not be dismissed. “In twenty-four years on the bench in this district, I do not recall ever having at any time hesitated to dismiss a case when requested by the Government. That was of course under the old law, and under the present rules [sic]. If I have a discretion under the rules now as to whether this case should or should not be dismissed, I must exercise that discretion and allow it to be dismissed, because I do not think that the defendant, either in the hearing this morning or in this enormous record on the question of change of venue, has shown any reasons why the case should not be dismissed.” It is suggested that the defendant in Lewis was held not to be aggrieved only because the statute of limitations prevented his re-indictment. The Court alluded to that circumstance, however, only after holding that the defendant could not be “legally aggrieved” by being released from prosecution under the indictment; the bar of the statute of limitations was noted only in connection with a concluding observation that the case was moot in any event. To support his claim of aggrievement, petitioner, by way of analogy, relies upon four lower court decisions granting appeals from judgments of nonsuit in civil cases. In three of the cases, however, the defendant was asserting a right to a judgment in his favor on the merits, claimed to have been fully established prior to the non-suit, and was obviously aggrieved by the loss of that judgment. Connecticut Fire Ins. Co. v. Manning, 177 F. 893 (C. A. 8th Cir.); Massachusetts Fire & Marine Ins. Co. v. Schmick, 58 F. 2d 130 (C. A. 8th Cir.); Iowa-Nebraska L. & P. Co. v. Daniels, 63 F. 2d 322 (C. A. 8th Cir.). In the fourth case, Cybur Lumber Co. v. Erkhart, 247 F. 284 (C. A. 5th Cir.), the plaintiff took a nonsuit only after a previous verdict in his favor had been reversed on appeal and the case had been remanded for a new trial with directions to direct a verdict for the defendant if the evidence was the same; the defendant claimed a right to a judgment if the plaintiff did not proceed to trial on the remand. In all of the cited cases, therefore, the defendant was asserting a right to a judgment on the basis of the progress of the action prior to the nonsuit — a substantial right going to the merits of the controversy of which he had been deprived by the nonsuit. No such circumstances are present here. Cf. Fed. Rules Crim. Proc., 48 (a): “. . . Such a dismissal may not be filed during the trial without the consent of the defendant.” (Emphasis added.) Petitioner had also been denied writs of mandamus and prohibition in the Court of Appeals, and the writ of certiorari brought up that ruling as well as the dismissal of the appeal. The prerogative writs sought in the Court of Appeals, however, were designed solely to stay the proceedings in the Western District pending the final disposition of the appeal and not to afford permanent relief. Since the Western District Court subsequently granted the Government’s motion for such a stay, that part of the case on certiorari is now moot. Thus it is only petitioner’s original application to this Court in No. 202, Misc., that is before us. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

I

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice White delivered the opinion of the Court. Congress has provided in 10 U. S. C. § 687 (a) that an otherwise eligible member of a reserve component of the Armed Forces, who is involuntarily released from active duty, “and who has completed, immediately before his release, at least five years of continuous active duty, is entitled to a readjustment payment computed by multiplying his years of active service ... by two months’ basic pay of the grade in which he is serving at the time of his release.” It is further provided that “[f]or the purposes of this subsection— ... (2) a part of a year that is six months'or more is counted as a whole year, and a part of a year that is less than six months is disregarded . . . We must decide whether the “rounding” provision set forth in § 687 (a)(2) is to be applied in determining eligibility for readjustment pay, as well as in computing the amount of readjustment pay to which an eligible reservist is entitled, so that involuntarily released reservists who have completed four years and six months or more, but less than five years, of continuous active duty prior to their release are nonetheless entitled to a readjustment payment. The Court of Appeals held that the rounding clause applied only to computation of readjustment payments, 483 F. 2d 220 (CA9 1973), contrary to the earlier decision of the Court of Claims that the rounding provision is applicable in determining eligibility for, as well as computation of, readjustment payments under § 687. Schmid v. United States, 193 Ct. Cl. 780, 436 F. 2d 987, cert. denied, 404 U. S. 951 (1971). We granted certiorari to resolve the conflict, 414 U. S. 1128 (1974), and now affirm the judgment of the Court of Appeals. Each petitioner had served continuously for more than four years and six months, but less than five years, when notified that he would be honorably but involuntarily released from active duty in the Reserves. In No. 73-604, petitioner Cass, a captain in the Army Reserve, was in fact released from active duty before completing five years of service, and when the Army denied his request for readjustment pay, he brought suit in the United States District Court for the District of Montana, which granted relief on the authority of the Court of Claims’ decision in Schmid, supra. In No. 73-5661, petitioners Adams, Steneman, and Youngquist, captains in the Marine Corps Reserve, brought separate actions in the Central District of California, prior to their release, seeking a modification of their release orders to provide for readjustment pay. The District Court subsequently held that they were entitled to readjustment pay based on active service of more than four and one-half years. The Government’s appeals from the decisions of the two District Courts were consolidated, and the Court of Appeals reversed each, holding that the statute and its legislative history make clear that readjustment pay is not to be provided to reservists involuntarily released from active duty with less than five full years of continuous service. Petitioners assert to the contrary that the language of § 687 (a) unambiguously establishes that four and one-half years of continuous active service qualifies an involuntarily released reservist for readjustment benefits, that the legislative history of the rounding provision should therefore not be considered in resolving the issue, and that even if the legislative history is considered, it supports the construction urged by petitioners as much as that contended for by the Government. We are unpersuaded by these arguments, however. The statute sets out both the eligibility requirements for entitlement to readjustment pay and the method of computing the amount of the applicable payment in the same sentence. Entitlement is based, in part, on the completion, immediately before the involuntary release of a reservist, of “at least five years of continuous active duty,” and the payment is to be computed by multiplying the reservist’s “years of active service” by two months’ basic pay of the grade in which he is serving when released. Because the rounding provision expressly provides that it is to be applied for “purposes of this subsection,” petitioners contend that the provision modifies the term “year” whenever that term appears in the subsection, i. e., to determine whether a reservist has completed five years of service to be eligible for readjustment benefits, as well as to determine the number of years of service to use as a multiplier in computing the amount of readjustment pay owed.. This is so plainly true, petitioners contend, that resort to legislative history is unnecessary and improper. Our view is to the contrary. The rounding provision is arguably subject to the interpretation given it by petitioners, but did Congress intend that provision to override its explicit requirement of “at least” five years of service? We think the answer to that question is sufficiently doubtful to warrant our resort to extrinsic aids to determine the intent of Congress, which, of course, is the controlling consideration in resolving the issue before us. Moreover, the Court has previously stated that “[w]hen aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words may appear on 'superficial examination/ ” United States v. American Trucking Assns., Inc., 310 U. S. 534; 543-544 (1940); Harrison v. Northern Trust Co., 317 U. S. 476, 479 (1943). Such aid is available in this case and we decline to ignore the clearly relevant history of § 687 (a). Certain reservists involuntarily released from active duty are granted lump-sum readjustment pay to help them readjust to civilian life and to encourage qualified reservists to remain on active duty for extended periods. Readjustment pay was first provided by the Act of July 9, 1956, 70 Stat. 517, which conditioned entitlement on the completion immediately prior to release of “at least five years of continuous active duty.” It also provided that “[f]or the purposes of computing the amount of readjustment payment (1) a part of a year that is six months or more is counted as a whole year, and a part of a year that is less than six months is disregarded . . . .” Ibid. As first introduced and passed by the House, however, the bill provided, as the codified version does now, that “[f]or the purposes of this subsection” the six-month rounding provision would apply. H. R. Rep. No. 1960, 84th Cong., 2d Sess., 9 (1956); 102 Cong. Rec. 10120 (June 12, 1956). It was nonetheless made clear by the debate in the House prior to passage that five years was to be the minimum eligibility requirement. The Senate, focusing on a letter from the Comptroller General to the Chairman of the Armed Services Committee suggesting that the language be clarified to ensure that five years was to be the minimum period necessary to qualify for a readjustment payment, amended the bill to reflect this more clearly, id., at 11333-11334 (June 29, 1956), and the House readily concurred the same day in the Senate amendments to the bill as the final language of the 1956 Act, id., at 11503-11504. The Act was amended in June 1962, primarily to raise the amount of readjustment benefits paid to involuntarily released reservists to equal the amount provided as severance pay to involuntarily released regular officers, but it retained the explicit language specifying the use of the rounding provision for "purposes of computing the amount of the readjustment payment,” 76 Stat. 120, and there was no discussion in the congressional reports suggesting any modification of this language. Less than three months later, however, the present language was adopted as part of a measure codifying “recent military laws.” Act of Sept. 7, 1962, 76 Stat. 506. The committee reports accompanying the codification proposal make plain that no change in the eligibility requirements for readjustment pay was intended by the enacted change in phraseology. The Senate Judiciary Committee Report explained the purpose of the proposal as follows: “This bill, as amended, is not. intended to make any substantive change in existing law. Its purpose is to bring up to date title 10 of the United States Code, by incorporating the provisions of a number of public laws that were passed while the bill to enact title 10 into law was still pending in the Congress, and to transfer to title 10,' provisions now in other parts of the code.” S. Rep. No. 1876, 87th Cong., 2d Sess., 6 (1962). The same limited purpose was expressed by the House' Judiciary Committee, which further explained that “[s]ome changes in style and form have been made to conform the provisions to the style and form of title 10, but these changes do not affect the substance.” H. R. Rep. No. 1401, 87th Cong., 2d Sess., 1 (1962). These congressional comments, combined with the fact that no consideration of any change in eligibility standards appears in either the cited committee reports or in the proceedings leading to adoption of the codification bill by the House, 108 Cong. Rec. 4435-4441 (1962), and by the Senate, 108 Cong. Rec. 17088-17089 (1962), conclusively demonstrate that Congress did not reduce the minimum period of qualifying service for entitlement to readjustment benefits from five to four and one-half years when it substituted the words in the codified version of § 687 (a) for the unambiguous language of the prior substantive enactments. We are unpersuaded by petitioners’ claim that the codified version is nevertheless to be accepted as correctly expressing the will of Congress and as a mere unexplained version of the language of prior law, see Continental Casualty Co. v. United States, 314 U. S. 527, 529-530 (1942); United States v. Bowen, 100 U. S. 508, 513 (1880). Here the meaning of the predecessor statute is clear and quite different from the meaning petitioners would ascribe to the codified law; and the revisers expressly stated that changes in language resulting from the codification were to have no substantive effect. Fourco Class Co. v. Transmirra Products Corp., 353 U. S. 222, 227-228 (1957); United States v. Cook, 384 U. S. 257, 260 (1966); City of Greenwood v. Peacock, 384 U. S. 808, 815-816 (1966). The Court of Claims in the Schmid case, 193 Ct. Cl. 780, 436 F. 2d 987 (1971), thought that in codifying § 687 (a), Congress restored the original language of the 1956 House bill, which it knew had been interpreted by the Comptroller General as reducing the minimum eligibility requirement to four years, six months. Id., at 787, 436 F. 2d, at 991. But the codification language was accompanied by no reference to the 1956 legislation or to the views then expressed by the Comptroller General. What is more, it is plain that the language of the original 1956 bill was itself not intended to set the minimum eligibility period at less than five years. The codification, if construed as petitioners would have it, would not represent a “return” to the original intent of Congress. It is also significant that there is no hint of any consideration of what such a change would cost or how it would affect the goals of the readjustment pay provisions, contrary to the careful attention these matters received when benefits under the readjustment pay statute were raised in 1962. As Judge Nichols commented in dissenting from the decision in Schmid: “In resolving ambiguity, we must allow ourselves some recognition of the existence of sheer inadvertence in the legislative process.” Id., at 789, 436 F. 2d, at 992. Finally, we cannot agree with the contention that a change in minimum eligibility from five to four and one-half years should not be considered a “substantive change” because once a reservist must re-enlist beyond the initial enlistment term of four years, the purpose of the readjustment benefit scheme as an inducement to extended service is satisfied. Not only is the selection of the particular minimum term of eligibility a peculiarly legislative task dependent upon substantive judgment, but the very fact that such a change involves a substantially greater expenditure of funds places this sort of revision into the substantive realm. We thus conclude that the rounding provision of § 687 (a)(2) is applicable only in the determination of how much readjustment pay an otherwise qualified reservist is authorized, and that such a reservist must serve a minimum of five full years of continuous active duty before he is involuntarily released in order to be eligible for readjustment benefits. The judgment of the Court of Appeals is Affirmed. Mr. Justice Douglas, agreeing with the Court of Claims in Schmid v. United States, 193 Ct. Cl. 780, 436 F. 2d 987, would reverse the judgment of the Court of Appeals. In full, 10 U. S. C. §687 (a) provides: "§ 687. Non-Regulars: readjustment payment upon involuntary release from active duty. “(a) Except for members covered by subsection (b), a member of a reserve component or a member of the Army or the Air Force without component who is released from active duty involuntarily, or because he was not accepted for an additional tour of active duty for which he volunteered after he had completed a tour of active duty, and who has completed, immediately before his release, at least five years of continuous active duty, is entitled to a readjustment payment computed by multiplying his years of active service (other than in time of war or of national emergency declared by Congress after June 28, 1962), but not more than eighteen, by two months’ basic pay of the grade in which he is serving at the time of his release. However, a member who is released from active duty because his performance of duty has fallen below standards prescribed by the Secretary concerned, or because his retention on active duty is not clearly consistent with the interests of national security, is entitled to a readjustment payment computed on the basis of one-half of one month’s basic pay of the grade in which the member is serving at the time of his release from active duty. A person covered by this subsection may not be paid more than two years’ basic pay of the grade in which he is serving at the time of his release or $15,000, whichever amount is the lesser. For the purposes of this subsection — ' “(1) a period of active duty is continuous if it is not interrupted by a break in service of more than 30 days; “(2) a part of a year that is six months or more is counted as a whole year, and a part of a year that is less than six months is disregarded; and “(3) a period for which the member concerned has received readjustment pay under another provision of law may not be included.” The District Court had earlier granted petitioners’ motion for a preliminary injunction prohibiting their involuntary release without readjustment pay. As a result, these petitioners had each served more than five years on active duty by the time the decision awarding them readjustment benefits was rendered. In deciding they were entitled to readjustment pay, however, the District Court expressly disclaimed any reliance on the fact that they actually served more than five years, since they were permitted to do so only under the compulsion of the court’s preliminary injunction. The injunction was dissolved as moot in the wake of the award of readjustment pay. The Court of Appeals also held that the injunction granted in favor of petitioners in No. 73-5661, see n. 2, supra, was improperly issued and could not be relied upon to support eligibility for readjustment benefits. 483 F. 2d 220, 222 (CA9 1973). That ruling is not challenged in this Court. Petitioners rely on cases suggesting that recourse to legislative materials is unwarranted when the meaning of statutory language is clear and unequivocal. E. g., United States v. Oregon, 366 U. S. 643, 648 (1961); Ex parte Collett, 337 U. S. 55, 61 (1949); Helvering v. City Bank Co., 296 U. S. 85, 89 (1935); United States v. Shreveport Grain & Elevator Co., 287 U. S. 77, 83 (1932). In the first two of. these eases, though finding the language to be construed this clear, the Court nonetheless did look at the legislative history of the statutory provisions to be interpreted. A majority of the Court of Claims in Schmid v. United States, 193 Ct. Cl. 780, 436 F. 2d 987 (1971), though they also examined the legislative history, found it clear from the language of § 687 (a) that the rounding provision should apply to both eligibility and computation determinations, whereas the Court of Appeals in these cases thought it clear that the minimum five-year eligibility clause is “not subject to the interpretation given it by the court in Schmid.” 483 F. 2d, at 222. Obviously there is room for reasonable dispute over the construction of § 687 (a) based on the statutory language alone. Petitioners tender other arguments, apart from that founded on the consistent use of the word “years,” to demonstrate that, read in its statutory context, the rounding provision in § 687 (a) was plainly intended to establish the minimum qualifying term of service at four years, six months, but none of them overcomes the ambiguity created by the direct establishment of “at least five years” of service as a qualification for readjustment benefits. Thus, it is argued that § 687 (a) (3) excludes from the determination of both eligibility and the amount of benefits payable “a period for which the member concerned has received readjustment pay under another provision of law,” and given the grammatical structure of § 687 (a), n. 1, supra, that the rounding rule in subsection (2) must be applied for the same purposes as the “prior period exclusion” rule of subsection (3). The Government asserts that the underlying premise that subsection (3) applies for both purposes is erroneous. As was the case with the rounding provision before codification, see text infra, the prior period exclusion was expressly to be applied only “[f]or the purposes of computing the amount of the readjustment payment.” Act of June 28, 1962, 76 Stat. 120. Furthermore, the current Department of Defense Military Pay and Allowances Entitlements Manual § 40414 (b) (Jan. 1, 1967) still excludes such prior service only for computing the amount of readjustment pay due, not for determining entitlement. The Government suggests, therefore, that if §§ 687 (a) (2) and (3) are to be construed as applicable for the same purpose, that purpose is only for computation. Manifestly, the parties’ dispute over the applicability of subsection (3) does not resolve the issue of when subsection (2) is to apply; it merely restates the problem. Petitioners also rely on 10 U. S. C. § 6330, which expressly applies a like rounding rule both to determine eligibility for transfer to the Fleet Reserve and, thereby, for retainer pay, by enlisted members of the Navy and Marine Corps, and to compute the amount of retainer pay due. The pertinent portions of § 6330 provide as follows: “§6330. Enlisted members: transfer to Fleet Reserve and Fleet Marine Corps Reserve; retainer pay. "(b) An enlisted member of the Regular Navy or the Naval Reserve who has completed 20 or more years of active service in the armed forces may, at his request, be transferred to the Fleet Reserve. An enlisted member of the Regular Marine Corps or the Marine Corps Reserve who has completed 20 or more years of active service in the armed forces may, at his request, be transferred to the Fleet Marine Corps Reserve. “(c) Each member who is transferred to the Fleet Reserve or the Fleet Marine Corps Reserve under this section is entitled when not on active duty, to'retainer pay at the rate of 2% percent of the basic pay that he received at the time of transfer multiplied by the number of years of active service in the armed forces . . . . “(d) For the purposes of subsections (b) and (c), a part of a year that is six months or more is counted as a whole year and a part of a year that is less than six months is disregarded. A completed minority enlistment is counted as four years of active service, and an enlistment terminated within three months before the end of the term of enlistment is counted as active service for the full term.” It is readily apparent that the rounding provision of § 687 (a) (2) contains an ambiguity not present in the more explicit language of § 6330 (d). Nor does the particular rounding provision in § 6330 indicate any legislative custom in this context that should control the construction of § 687 (a). At most, § 6330 indicates that the construction of § 687 (a) proffered by petitioners could fit within the structure of Title 10, not that the section must be so construed. The sponsor of the legislation, Representative Brooks, engaged in the following dialogue and explanation: “Mr. BROOKS of Louisiana. . . . We started with 5 years because we estimate that the average individual who stays 5 years in the service has in view making a career of that service. After he has gone a long way toward making a career of the service and when we take that opportunity away from him and turn him back to civilian life, we feel that there should be some sort of readjustment. “Mr. GROSS. The minimum, then, is 5 years; is that correct? “Mr. BROOKS of Louisiana. That is correct. The reason for the 5 years, of course, is that a 3-year enlistment would require a reenlistment, or ... a man who is in for 4 years will have to reenlist for an extended period. After he completes the first enlistment I think he intends to stay in the service and this encourages him to stay in the service as long as the service needs him.” 102 Cong. Rec. 10118-10119 (1956). The Comptroller General’s letter was contained in the Senate Report and provides in pertinent part as follows: “Although the language of subsection (a) of the bill seems to indicate that a minimum of 5 years’ continuous active duty as an officer or warrant officer is necessary to qualify for a readjustment payment, the last sentence of that subsection appears to reduce the minimum qualifying service to 4 years and 6 months. Presumably the provision authorizing the counting of 6 months or more as a whole year was intended to apply only for the purpose of computing the amount of a lump-sum payment and not the quantum of qualifying service. If so, the language should be clarified, perhaps somewhat as follows: “ ‘For the purpose of computing the amount of the readjustment payment a fractional part of a year amounting to 6 months [or 183 days] or more shall be counted as a whole year and a shorter period shall be disregarded.’ ” S. Rep. No. 2288, 84th Cong., 2d Sess., 11 (1956). The Report itself explains that the amended provision in the bill was designed to limit the application of the rounding formula “to years used in the computation of readjustment pay and not for years to establish the 5-year minimum of substantially continuous active duty that is required to qualify for readjustment payments.” Id,., at 2. See H. R. Rep. No. 1007, 87th Cong., 1st Sess. (1961); S. Rep. No. 1096, 87th Cong., 1st Sess. (1961). N. 8, supra. The codification bill had been referred in both the House and the Senate to the Judiciary Committees, unlike the earlier substantive consideration of the bills establishing and amending the readjustment pay provisions by the Armed Services Committees of the respective chambers of Congress. See n. 7, supra. See n. 6, supra. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Scalia delivered the opinion of the Court. This case presents a narrow question: Does § 106(c) of the Bankruptcy Code waive the sovereign immunity of the United States from an action seeking monetary recovery in bankruptcy? I Respondent Nordic Village, Inc., filed a petition for relief under Chapter 11 of the Bankruptcy Code in March 1984. About four months later, Josef Lah, an officer and shareholder of Nordic Village, drew a $26,000 check on the company’s corporate account, $20,000 of which was used to obtain a cashier’s check in that amount payable to the Internal Revenue Service (IRS). Lah delivered this check to the IRS and directed it to apply the funds against his individual tax liability, which it did. In December 1984, the trustee appointed for Nordic Village commenced an adversary proceeding in the Bankruptcy Court for the Northern District of Ohio, seeking to recover, among other transfers, the $20,000 paid by Lah to the IRS. The Bankruptcy Court permitted the recovery. The unauthorized, postpetition transfer, the court determined, could be avoided under § 549(a) and recovered from the IRS under § 550(a) of the Bankruptcy Code. It entered a judgment against the IRS in the amount of $20,000, which the District Court affirmed. A divided panel of the United States Court of Appeals for the Sixth Circuit affirmed. 915 F. 2d 1049 (1990). It upheld the reasoning of the lower courts and rejected a jurisdictional defense (raised for the first time on appeal) that sovereign immunity barred the judgment entered against the Government. We granted certiorari. 501 U. S. 1216 (1991). II Section 106 of the Bankruptcy Code provides: “(a) A governmental unit is deemed to have waived sovereign immunity with respect to any claim against such governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which such governmental unit’s claim arose. “(b) There shall be offset against an allowed claim or interest of a governmental unit any claim against such governmental unit that is property of the estate. “(c) Except as provided in subsections (a) and (b) of this section and notwithstanding any assertion of sovereign immunity— “(1) a provision of this title that contains ‘creditor,’ ‘entity,’ or ‘governmental unit’ applies to governmental units; and “(2) a determination by the court of an issue arising under such a provision binds governmental units.” 11 U. S. C. § 106. Three Terms ago we construed this provision in Hoffman v. Connecticut Dept. of Income Maintenance, 492 U. S. 96 (1989). The issue there was whether § 106(c) authorizes a monetary recovery against a State. We held that it does not, though the Justices supporting that judgment failed to agree as to why. A plurality of the Court determined that § 106(c) does not permit a bankruptcy court to issue monetary relief against a State. Id., at 102 (White, J., joined by Rehnquist, C. J., and O’Connor and Kennedy, JJ.). That conclusion, the plurality said, was compelled by the language of § 106(c), the relationship between that subsection and the rest of the statute, and the requirement that congressional abrogation of the States’ Eleventh Amendment immunity be clearly expressed. The concurrence found it unnecessary to construe the statute, concluding that Congress lacks authority under the Bankruptcy Clause to abrogate the States’ immunity from money-damages actions. Id., at 105 (Scalia, J., concurring in judgment). Like the Court of Appeals here, a dissent determined that the language of § 106(c), particularly that of paragraph (c)(1), supplies the necessary waiver. Id., at 106 (Marshall, J., joined by Brennan, Black-mun, and Stevens, JJ.). Contrary to the Government’s suggestion, Hoffman does not control today’s decision. It is true, to be sure, that Congress made clear in § 106 that (insofar as is within Congress’ power) state and federal sovereigns are to be treated the same for immunity purposes. See 11 U. S. C. § 101(27) (1982 ed., Supp. II) (“‘governmental unit’ means United States [and] State”). Since, however, the Court in Hoffman was evenly divided over what that treatment was as to the States; and since the deciding vote of the concurrence, denying amenability to suit, rested upon a ground (the Eleventh Amendment) applicable only to the States and not to the Federal Government, see Federal Housing Authority v. Burr, 309 U. S. 242, 244 (1940); the holding in Hoffman has no binding force here. The separate opinions dealing with the statutory question are relevant, however, and we shall in fact rely on the reasoning of the plurality. hH hH hH Waivers of the Government’s sovereign immunity, to be effective, must be “‘unequivocally expressed.’” Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95 (1990) (quoting United States v. Mitchell, 445 U. S. 535, 538 (1980), and United States v. King, 395 U. S. 1, 4 (1969)). Contrary to respondent’s suggestion, moreover, they are not generally to be “liberally construed.” We have on occasion narrowly construed exceptions to waivers of sovereign immunity where that was consistent with Congress’ clear intent, as in the context of the “sweeping language” of the Federal Tort Claims Act, United States v. Yellow Cab Co., 340 U. S. 543, 547 (1951), see, e. g., id., at 554-555, Block v. Neal, 460 U. S. 289, 298 (1983), United States v. Aetna Casualty & Surety Co., 338 U. S. 366, 383 (1949), or as in the context of equally broad “sue and be sued” clauses, see, e. g., Franchise Tax Bd. of California v. United States Postal Service, 467 U. S. 512, 517-519 (1984), FHA v. Burr, supra, at 245. These cases do not, however, eradicate the traditional principle that the Government’s consent to be sued “must be ‘construed strictly in favor of the sovereign,’ McMahon v. United States, 342 U. S. 25, 27 (1951), and not ‘enlarge[d] . . . beyond what the language requires,’” Ruckelshaus v. Sierra Club, 463 U. S. 680, 685 (1983) (quoting Eastern Transportation Co. v. United States, 272 U. S. 675, 686 (1927)), a rule of construction that we have had occasion to reaffirm once already this Term, see Ardestani v. INS, 502 U. S. 129, 137 (1991). Subsections (a) and (b) of § 106 meet this “unequivocal expression” requirement with respect to monetary liability. Addressing “claim[s],” which the Code defines as “right[s] to payment,” § 101(4)(A), they plainly waive sovereign immunity with regard to monetary relief in two settings: compulsory counterclaims to governmental claims, § 106(a); and permissive counterclaims to governmental claims capped by a setoff limitation, § 106(b). Next to these models of clarity stands subsection (c). Though it, too, waives sovereign immunity, it fails to establish unambiguously that the waiver extends to monetary claims. It is susceptible of at least two interpretations that do not authorize monetary relief. Under one interpretation, § 106(c) permits the bankruptcy-court to issue “declaratory and injunctive” — though not monetary — relief against the Government. Hoffman, 492 U. S., at 102. This conclusion is reached by reading the two paragraphs of subsection (c) as complementary rather than independent: The first paragraph identifies the subject matter of disputes that courts may entertain under the subsection and the second paragraph describes the relief that courts may grant in such disputes. That is to say, the second paragraph specifies the manner in which there shall be applied to governmental units the provisions identified by the first paragraph, i. e., a manner that permits declaratory or injunctive relief but not an affirmative monetary recovery. Several factors favor this construction. The distinction it establishes — between suits for monetary claims and suits for other relief — is a familiar one, and is suggested by the contrasting language used in subsections (a) and (b) (“claim[s]”) and in subsection (c) (“determination[s]” of “issue[s]”), Hoffman, 492 U. S., at 102. It also avoids eclipsing the carefully drawn limitations placed on the waivers in subsections (a) and (b). The principal provision of the Code permitting the assertion of claims against persons other than the estate itself is § 542(b), which provides that “an entity that owes a debt that is property of the estate and that is matured, payable on demand, or payable on order, shall pay such debt to, or on the order of, the trustee.” If the first paragraph of § 106(c) means that, by reason of use of the trigger word “entity,” this provision applies in all respects to governmental units, then the Government may be sued on all alleged debts, despite the prior specification in subsections (a) and (b) that claims against the Government will lie only when the Government has filed a proof of claim, and even then only as a setoff unless the claim is a compulsory counterclaim. Those earlier limitations are reduced to trivial application if paragraph (c)(1) stands on its own. See id., at 101-102. This construction also attaches practical consequences to paragraph (c)(2), whereas respondent’s interpretation violates the settled rule that a statute must, if possible, be construed in such fashion that every word has some operative effect. See id., at 103; United States v. Menasche, 348 U. S. 528, 538-539 (1955). Respondent has suggested no function to be performed by paragraph (2) if paragraph (1) operates to treat the Government like any other “entity” or “creditor,” regardless of the type of relief authorized by an applicable Code provision. Under this interpretation, § 106(c), though not authorizing claims for monetary relief, would nevertheless perform a significant function. It would permit a bankruptcy court to determine the amount and dischargeability of an estate’s liability to the Government, such as unpaid federal taxes, see 11 U. S. C. § 505(a)(1) (permitting the court to “determine the amount or legality of any tax”) (emphasis added), whether or not the Government filed a proof of claim. See 492 U. S., at 102-103. Cf. Neavear v. Schweiker, 674 F. 2d 1201, 1203-1204 (CA7 1982) (holding that under § 106(c) a bankruptcy court could discharge a debt owed to the Social Security Administration). The Government had repeatedly objected, on grounds of sovereign immunity, to being bound by such determinations before § 106(c) was enacted in 1978. See, e. g., McKenzie v. United States, 536 F. 2d 726, 728-729 (CA7 1976); Bostwick v. United States, 521 F. 2d 741, 742-744 (CA8 1975); Gwilliam v. United States, 519 F. 2d 407, 410 (CA9 1975); In re Durensky, 377 F. Supp. 798, 799-800 (ND Tex. 1974), appeal dism’d, 519 F. 2d 1024 (CA5 1975). Subsection (c) is also susceptible of another construction that would not permit recovery here. If the two paragraphs of § 106(c) are read as being independent, rather than the second as limiting the first, then, pursuant to the first paragraph, Code provisions using the triggering words enumerated in paragraph (c)(1) would apply fully to governmental units. But that application of those provisions would be limited by the requirements of subsections (a) and (b), in accord-anee with the phrase that introduces subsection (c) (“Except as provided in subsections (a) and (b) of this section”). This exception, in other words, could be read to mean that the rules established in subsections (a) and (b) for waiver of Government “claim[s]” that are “property of the estate” are exclusive, and preclude any resort to subsection (c) for that purpose. That reading would bar the present suit, since the right to recover a postpetition transfer under § 550 is clearly a “claim” (defined in § 101(4)(A)) and is “property of the estate” (defined in § 541(a)(3)). (The dissent appears to read paragraphs (c)(1) and (c)(2) as being independent but provides no explanation of what the textual exception could mean under that reading.) The foregoing are assuredly not the only readings of subsection (c), but they are plausible ones — which is enough to establish that a reading imposing monetary liability on the Government is not “unambiguous” and therefore should not be adopted. Contrary to respondent’s suggestion, legislative history has no bearing on the ambiguity point. As in the Eleventh Amendment context, see Hoffman, swpra, at 104, the “unequivocal expression” of elimination of sovereign immunity that we insist upon is an expression in statutory text. If clarity does not exist there, it cannot be supplied by a committee report. Cf. Dellmuth v. Muth, 491 U. S. 223, 228-229 (1989). IV Respondent proposes several alternative grounds for affirming the judgment below, all unpersuasive. First, it-claims that the necessary waiver can be found in 28 U. S. C. § 1334(d), which grants the district court in which a bankruptcy case is initiated “exclusive jurisdiction of all of the property, wherever located, of the debtor as of the commencement of such case, and of property of the estate.” Respondent urges us to construe this language as empowering a bankruptcy court to compel the United States or a State to return any property, including money, that passes into the estate upon commencement of the bankruptcy proceeding. Under this theory, a sovereign’s exposure to suit would not be governed by the specific language of §106, but would be concealed in the broad jurisdictional grant of § 1334(d). Besides being unprecedented and running afoul of the unequivocal-expression requirement, this theory closely resembles an argument we rejected just last Term. In Blatchford v. Native Village of Noatak, 501 U. S. 775, 786 (1991), the argument was made that Alaska’s Eleventh Amendment immunity to suit was abrogated by 28 U. S. C. § 1362, a jurisdictional grant, akin to § 1334(d), that gives district courts jurisdiction over “all civil actions, brought by any Indian tribe . . . arising] under the Constitution, laws, or treaties of the United States.” Rejecting that contention, we observed: “The fact that Congress grants jurisdiction to hear a claim does not suffice to show Congress has abrogated all defenses to that claim. The issues are wholly distinct.” Id., at 787, n. 4. Equally unpersuasive is respondent’s related argument that a bankruptcy court’s in rem jurisdiction overrides sovereign immunity. As an initial matter, the premise for that argument is missing here, since respondent did not invoke, and the Bankruptcy Court did not purport to exercise, in rem jurisdiction. Respondent sought to recover a sum of money, not “particular dollars,” cf. Begier v. IRS, 496 U. S. 53, 62 (1990) (emphasis deleted), so there was no res to which the court’s in rem jurisdiction could have attached, see Pennsylvania Turnpike Comm’n v. McGinnes, 268 F. 2d 65, 66-67 (CA3), cert. denied, 361 U. S. 829 (1959). In any event, we have never applied an in rem exception to the sovereign-immunity bar against monetary recovery, and have suggested that no such exception exists, see United States v. Shaw, 309 U. S. 495, 502-503 (1940). Nor does United States v. Whiting Pools, Inc., 462 U. S. 198 (1983), establish such an exception, or otherwise permit the relief requested here. That case upheld a Bankruptcy Court order that the IRS turn over tangible property of the debtor it had seized before the debtor filed for bankruptcy protection. A suit for payment of funds from the Treasury is quite different from a suit for the return of tangible property in which the debtor retained ownership. The Court’s opinion in Whiting Pools contains no discussion of § 106(c), and nothing in it suggests that an order granting monetary recovery from the United States would be proper. Resort to the principles of trust law is also of no help to respondent. Most of the trust decisions respondent cites are irrelevant, since they involve private entities, not the Government. The one that does involve the Government, Bull v. United States, 295 U. S. 247 (1935), concerns equitable recoupment, a doctrine that has been substantially narrowed by later cases, see United States v. Dalm, 494 U. S. 596, 608 (1990), and has no application here. * * * Neither § 106(c) nor any other provision of law establishes an unequivocal textual waiver of the Government’s immunity from a bankruptcy trustee’s claims for monetary relief. Since Congress has not empowered a bankruptcy court to order a recovery of money from the United States, the judgment of the Court of Appeals must be reversed. It is so ordered. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Douglas delivered the opinion of the Court. This is a suit for seaman’s wages accruing from services rendéred in foreign commerce. Federal jurisdiction was claimed under 28 U. S. C. § 1333 which’ grants exclusive jurisdiction to the district courts in any “admiralty or maritime” case. A collective-bargaining agreement contained provisions concerning wages payable when seamen were dismissed or when their' employment was terminated ; and it provided-a grievance procedure and for arbitration of disputed claims. Those procedures were not pursued by the seaman, He sued in . the federal court-.instead. The District Court granted the employer’s motion for summary judgment, ruling that the principles we announced in a series of decisions starting, with Textile Workers v. Lincoln Mills, 353 U. S. 448, and extending to Republic Steel Corp. v. Maddox, 379 U. S. 650, governed this maritime case and that the federal court had no jurisdiction to adjudicate the maritime claim but only to enforce the grievance procedure or an arbitration award that might be given. The Court of Appeals reversed by a divided vote, 408 F. 2d 1065, and we granted certiorari, 398 U. S. 957. . The Labor Management Relations Act, 1947, 61 Stat. 136, provides a federal remedy to enforce grievance and arbitration provisions of collective-barg;: ining agreements in an industry “affecting commerce,” § 31 (a), 29 U. S. C. § 185 (a); and it is clear that “com ierce” includes foreign comlnerce. 29 U. S. C. § 152 "). It is also clear that this employee’s basic wage an 1 the overtime rate of pay were fixed or determinable by the collective-bargaining agreement. And it is generally true, as stated in Vaca v. Sipes, 386 U. S. 171, 184, that when the employee’s claim “is based upon breach of the collective bargaining agreement, he is bound by terms of that agreement which govern the manner in which contractual rights may be enforced.” The question here is not the continuing validity of Lincoln Mills and its progeny. The question is .a distinctly different one, and that is whether the earlier, express, and alternative method of collecting seamen’s wages contained in 46 U. S. C. § 596 has been displaced by § 301 of the Labor Management Relations Act or whether so far as seamen and their wages are concerned § 301 is only an optional method of resolving the controversy. Title 46 U. S. C. § 596, which derives from the Act of July 20, 1790, § 6, 1 Stat. 133, provides in relevant part : “The master or owner of any vessel making coasting voyages shall pay to every seaman his wages . within two days after the termination of the agreement under which he was shipped,; or at the time such seaman is discharged, whichever first happens; and in case of vessels making foreign voyages, or from a port on the Atlantic to a port on the Pacific, or vice versa, within twenty-four hours after the cargo hás been discharged, or within four days after the seaman has been discharged, whichever first happens; and in all cases the seaman shall be entitled to be paid at the time of his discharge on account of wages a sum equal to one-third part of the balance due him. Every master dr owner who refuses or neglects to make payment in the manner hereinbefore mentioned without sufficient cause shall pay to the seaman a sum equal to two days’ pay for each and every day during which payment is delayed beyond the respective periods, which sum shall be recoverable as wages in any claim, made ber fore the court . . .. (Italics added.) Moreover, 46 U. S. C. § 597, which also derives from the 1790 Act, provides: “Every seaman on a. vessel of the United States shall be entitled to receive on démand from the master of the vessel to which he belongs one-half part of the balance , of his wages earned and remaining unpaid at the time when such demand is made at every port where such vessel, after the voyage has been commenced, shall load or deliver cargo before the voyage is ended, and all stipulations in. the contract to the contrary shall be void: Provided, Such a demand, shall not be made before the expiration of, nor oftener than once in five days nor more than once in the same harbor on the same entry. . . The statutory remedy speaks in terms of the amount of wages due and owing and the penalties for nonpayment, and it specifies the timetable within which the payments must be made. Section 596 speaks of a penalty for nonpayment recoverable “as wages in any claim made before the court.” This implies a right to make the claim to the court and not a duty to make it before a grievance committee or before an arbiter. Hence § 596 does not wholly jibe with § 301. We often must legislate interstitially to iron out inconsistencies within a statute or to fill gaps resulting from legislative oversight or-to resolve ambiguities resulting from-a legis-. lative compromise. It.is earnestly urged that the grievance procedure established in the collective-bargaining agreement can give effect to these payments and penalty provisions and that the agreement is therefore not in derogation of the ancient statutory remedy which Congress has provided. Seamen from the start were wards of admiralty. See Robertson v. Baldwin, 165 U. S. 275, 287. In 1872 it was provided that the federal courts might appoint shipping commissioners “to superintend the shipping and discharge of seamen” in our merchant fleet. Cong. Globe, 42d Cong., 2d Sess., -1836. Commissioners indeed served, 46 U. S. C. § 541 (1940 ed.), as an administrative adjunct of the federal courts until July 16, 1946, when § 104 of Reorganization Plan No. 3 of 1946 abolished them. 60 Stat. 1098. No other administrative agency was substituted. The federal. courts remained as the guardians of seamen, the agencies chosen by Congress, to enforce their rights — a guardian concept which, so far as wage claims are concerned, is not much different from what it was in the 18th century. We reviewed the legislative history of § 301 in Textile Workers v. Lincoln Mills, 353 U. S., at 451-456. The matter of foremost concern in Congress was the enforceability of collective-bargaining agreements. The' essence of § 301 was a new federal policy governed by federal law — “that federal courts should enforce these agreements on behalf of or against labor organizations and that industrial peace can be best obtained only in that way.” Id., at 455. Enforcement by or against labor unions was the main burden of § 301, though standing by individual employees to secure declarations of their legal rights under the collective agreement was recognized. Id., at 456. Since the emphasis was on suits by unions and against unions, little attention was given to the assertion of claims by individual employees and none whatsoever concerning the impact of § 301 on the special protective procedures governing the collection of wages of maritime workers. We can find no suggestion in the legislative history of the Labor Management Relations Act of 1947 that grievance procedures and arbitration were to take the place of the old shipping commissioners or to assume part or all of the roles served by the federal courts protective of the rights of seamen since 1790. It is earnestly urged that the literalness of the old statute should give way to the progressive philosophy of the new procedures. It is said that arbitration would be most appropriate because “a familiarity with the customs and practices of shipping would be distinctly helpful in assessing the validity of the claims,” and the “underlying wage claims [are] based on factual disputes.” Resolving factual disputes is hardly uncommon in federal district courts. And while an arbitrator in the area may have expertise, for 180 years federal courts have been protecting the rights of seamen and are not without knowledge in tbe area.. It is also said that the informal, readily available grievance and arbitration procedures might defeat any overreaching and delay by the employer which § 596 was designed to reach. We do not hold that § 596 is the exclusive remedy of the seaman. He may, if he chooses, use the processes of grievánce and arbitration. Yet, unlike Congress, we are not in a position to say that his interests usually will be best served through § 301 rather than through § 596. The . literal conflict between this ancient seaman’s statute and the relatively new grievance procedure is one which we think . Congress rather than this Court should resolve. We :do not sit as a legislative committee of revision. . We know that this employee has a justiciable claim. We know it is the kind of claim that is grist for the judicial mill. We know that in § 596 Congress allowed it to be recoverable when made to a court. We know that this District Court has the case properly before it under the head of maritime jurisdiction. We hesitate to route this claimant through the relatively new administrative remedy of the collective agreement and shut the courthouse door on him when Congress, since 1790, has said that it is open to members of his. class. What we decide today has nothing whatsoever to do. with grievance claims of the maritime unions against employers or the claims of employers against them, for neither is touched by § 596. We deal only with'the sea-, man’s personal wage claims. Maritime unions, of course; like other unions, gain “prestige” by processing grievance claims. Republic Steel Corp. v. Maddox, supra, at 653. And employer interests are served “by limiting the choice of remedies available to aggrieved employees.” Ibid. In Maddox, there was no express exception governing individual claims of employees from § 301 grievance procedures and we declined to carve one out under the circumstances there present. The circumstances here, are quite, different because of the express judicial remedy created by § 596. The reluctance in Maddox to redesign the statutory regime of § 301 makes us equally reluctant to redesign the statutory regime of § 596. The chronology of the two statutes — § 596 and § .301-makes clear that the judicial remedy was made explicit in § 596 and was not clearly taken away by § 301. What Congress has plainly granted we hesitate to deny.. Since the history of § 301 is silent on the abrogation of existing statutory remedies of seamen in the maritime field, we construe it to provide only an optional remedy to them. We would require much more to hold that § 301 reflects a philosophy of legal compulsion that overrides the explicit judicial remedy provided by 46 U. S'. C. § 596. Affirmed. Mr. Justice Black concurs in the judgment and opinion of the Court while still adhering to his . dissent in Republic Steel Corp. v. Maddox, 379 U. S. 650. “I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from ■ molar to molecular motions.” Southern Pacific Co. v. Jensen, 244 U. S. 205, 221 (Holmes, J., dissenting). Mr. Justice Cardozo, in speaking of the construction of laws to achieve justice and harmony, said: “All departments of the law have been touched and elevated by this spirit. In some, however, the method of sociology works in harmony with the method of philosophy or of evolution or of tradition.' Those, therefore, are the fields where logic and coherence and consistency must still be sought as ends. • In others, it seems to displace the methods that compete with it. Those are the fields where the virtues of consistency must yield within those interstitial limits where judicial power moves.” Selected Writings 136 (Hall ed. 1947). • And see Cong. Globe, 42d Cong., 2d Sess., 1838, 1863, 2172, 2206, 3437, 3572, 3911. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Reed delivered the opinion of the Court. This proceeding was filed in 1940 in the District Court of the United States for the District of Columbia by the United States under the authority of the Attorney General. 15 U. S. C. § 4. The complaint charged, ¶[ 44, a long-continued conspiracy by defendants in restraint of trade in gypsum products among the several states and in the District of Columbia, and a similar monopoly, all in violation of §§ 1, 2 and 3 of the Sherman Antitrust Act, 26 Stat. 209, as amended, 15 U. S. C. §§ 1, 2, 3. The defendants, appellees here, were United States Gypsum Co., patentee, and various other gypsum board manufacturers, its licensees, and certain of their officers. It was alleged that the combination carried out its unlawful purposes as indicated in the excerpt from the complaint quoted below. Civil relief, through prohibitory and mandatory orders, was prayed in various appropriate forms. After the United States concluded its evidence in chief at the trial, a three-judge District Court, 15 U. S. C. § 28, granted appellees’ motion to dismiss under Rule 41 (b) of the Federal Rules of Civil Procedure on the ground that no right to relief had been shown. On direct appeal, 15 U. S. C. § 29, we reversed the judgment of dismissal, March 8, 1948, United States v. United States Gypsum Co., 333 U. S. 364, and remanded the case to the District Court for further proceedings in conformity with our opinion. On remand a conference took place at the Government’s suggestion. The Court acted under procedure similar to pretrial, Rule 16, and its inherent power to direct a case so as to aid in its disposition. As a result of that conference, without objection from any party, the Government filed a motion for a summary judgment under Rule 56 on the ground that there was no genuine issue as to any material fact, and the appellees filed an offer of proof, directed at matters as to which appellees were of the opinion a genuine issue existed. A summary judgment, without other findings than those contained in the decree, was entered November 7,1949, on appellant’s motion. Both plaintiff and defendants took direct appeals from the decree to this Court. 15 U. S. C. § 29. Defendants’ appeal objected to summary judgment on the ground of their right to introduce material evidence. That appeal was dismissed by this Court. 339 U. S. 959. The reasons for our action lay in the fact that our holding in our first opinion, 333 U. S. 364, justified a summary judgment for plaintiff on the issue of the violation of the Sherman Act when the record was considered in the light of our opinion and defendants’ offer of proof on the remand. This point is discussed later in this opinion under subdivision I. Probable jurisdiction was noted on the appeal of the United States. This is the case we are now discussing. For the same reasons that we dismissed defendants’ appeal, this Court affirmed Article III of the District Court decree. Our order also carried the sanction of an injunction against violation of the decree, “pending further order of this Court.” 339 U. S. 960. The issues left for determination in this appeal are those raised by the United States in its effort to have the provisions of the District Court decree enlarged. It seeks to extend the injunctions against violations of the Sherman Act to cover gypsum products instead of being limited to gypsum board as defined in the decree; and to include interstate commerce generally instead of limiting the territorial scope of the decree to the eastern portion of the United States. It also seeks changes that forbid specific practices, in addition to price fixing, such as standardizing products, classifying customers, or adopting delivered price systems, all pursuant to the principal conspiracy. It seeks to compel licensing of all patents by United States Gypsum; to empower the Department of Justice to inspect certain records; to extend the decree’s terms to cover individual defendants; and to require the defendants to pay all costs. I. Procedure on remand. — In determining the present issues, it is necessary to consider the trial court’s solution of the procedural problems presented by our remand. Our decree was a reversal of the trial court’s dismissal of the complaint on the merits at the completion of plaintiff’s, the United States’, presentation of its evidence. In our opinion, 333 U. S. 364, 389, we said that “the industry-wide license agreements, entered into with knowledge on the part of licensor and licensees of the adherence of others, with the control over prices and methods of distribution through the agreements and the bulletins, were sufficient to establish a prima facie case of conspiracy.” We said that the intention of United States Gypsum and its licensees to act in concert to attain the purpose of the conspiracy, restraint of trade and monopoly, was apparent from the face of the license agreements. Pp. 389, 400. “The licensor was to fix minimum prices binding both on itself and its licensees; the royalty was to be measured by a percentage of the value of all gypsüm products, patented or unpatented; the license could not be transferred without the licensor’s consent; the licensee opened its books of accounts to the licensor; the licensee was protected against competition with more favorable licenses and there was a cancellation clause for failure to live up to the arrangements.” We stressed the acting in concert as differentiating the case from United States v. General Electric Co., 272 U. S. 476, discussed on pp. 400 and 401 of 333 U. S., the concert of action being established by the favored licensee clause of the standard license agreement. 333 U. S. at 410. In United States v. Line Material Co., 333 U. S. 287, decided the same day as the Gypsum case, the opinion of the Court discussed the then standing of the General Electric rule as follows: “We are thus called upon to make an adjustment between the lawful restraint on trade of the patent monopoly and the illegal restraint prohibited broadly by the Sherman Act. That adjustment has already reached the point, as the precedents now stand, that a patentee may validly license a competitor to make and vend with a price limitation under the General Electric case and that the grant of patent rights is the limit of freedom from competition P. 310. We added, pp. 311 and 312, that while the General Electric rule permitted a patentee to fix the price the licensee of patents may charge for the device, separate patent owners could not combine the patents and thus reach an agreement to fix the price for themselves and their licensees. There was no holding in our first opinion in Gypsum that mere multiple licensing violated the Sherman Act. The facts and the language placed our judgment squarely on the basis that “it would be sufficient to show that the defendants, constituting all former competitors in an entire industry, had acted in concert to restrain commerce in an entire industry under patent licenses in order to organize the industry and stabilize prices.” P. 401. As appears from the preliminary statement of its decree, the trial court acted on that understanding of our holding. See Appendix, post, p. 96. It was not necessary to reach the issue as to whether a mere plurality of licenses, each containing a price-fixing provision, violates the Sherman Act. It is not necessary now. The reference, 333 U. S. at 389, to the establishment of a prima facie case of conspiracy by conscious industry concert in price fixing was directed at the basis for the admission of the separate declarations of alleged conspirators. Section V, pp. 399-402, of the opinion, however, contains our determination that an industry’s concerted price fixing by license violates the Sherman Act per se. United States v. Paramount Pictures, 334 U. S. 131, 143. Of course, when we remanded the case to the District Court the defendants had the right to introduce any evidence that they might have as to why all or any one of them should be found not to have violated the Sherman Act. Our reference at 333 U. S. 402, footnote 20, to Gulbenkian v. Gulbenkian, 147 F. 2d 173, shows that. See Federal Deposit Ins. Corp. v. Mason, 115 F. 2d 548, 552; Bowles v. Biberman Bros., 152 F. 2d 700, 705. Furthermore, even though defendants had no substantial evidence to overcome the prima facie conclusion of Sherman Act violation, they had the right to lay facts before the court that were pertinent to the court’s decision on the terms of the decree; for example, the purpose of the concerted action, or the reason for making new patents available to the licensees, or willingness to license all applicants for the patent privilege. Such rights, however, did not require the trial court to admit evidence that would not affect the outcome of the proceedings. They did not affect the power of the trial court to direct the progress of the case in such a way as to avoid a waste of time. A summary judgment, under Rule 56, was permissible on remand. It was allowed, as the last paragraph of the preliminary statement of the decree shows, on the court’s understanding that our dpinion “held that the defendants acted in concert to restrain trade and commerce in the gypsum board industry and monopolized said trade and commerce among the several states in that section here-inaftér referred to as the eastern territory of the United States... As heretofore explained, that conclusion followed from our decision, if no evidence that controverted our ruling was offered. It is therefore necessary to examine briefly the offer of evidence. The offer contained sixty-two paragraphs of proposed evidence. A full exposition is impracticable. Stress was laid on the available evidence to rebut our finding of an industry plan to stabilize prices. Evidence was offered to show the licenses were for settlement of alleged infringements, and individual in character and were not used as a subterfuge to gain price control. Such evidence would not affect our determination, set out above, that price-fixing licenses made in knowing concert by standardized price requirements violated the Sherman Act by their very existence. Defendants offered to prove that royalties based on unpatented gypsum board were compensation for patent licenses and installment payment for prior infringement damages. Such proof would not affect the fact that such a royalty added to the cost of producing unpatented board. Proof was offered that covenants against transfer of licenses, for price maintenance and for equality of license terms, and bulletin orders against rebates by selling other products at a cheaper price when patented articles were sold, were to protect the licensor’s monopoly under its letters patent. It was offered to prove that the activities of the Board Survey Company, considered in our former opinion, 333 U. S. 364, 400, were to secure compliance with the licenses; that there was no agreement to eliminate jobbers but only a purpose to maintain patent prices by discontinuing the jobber’s discount. Such proof, in view of our holding as to the Sherman Act, would not make legal concerted action under patents to stabilize prices. We pass over other offers of proof as clearly immaterial on the issue of liability for Sherman Act violation. Good intentions, proceeding under plans designed solely for the purpose of exploiting patents, are no defense against a charge of violation by admitted concerted action to fix prices for a producer’s products, whether or not those products are validly patented devices. We do not think that, accepting the offers of fact as true, there is enough in the proffered evidence to change the actions of the defendants from the illegal to the permissible. A finding that the manufacturers did not violate the Sherman Act under the evidence introduced by the Government and that proffered by the defendants below would be clearly erroneous in view of the concert of action to fix industry prices by the terms of the licenses. We agree with a statement made by counsel for the Government in argument below that as a “matter of formulating the decree” many facts offered to be proven would have effect upon the conclusion of a court as to the decree’s terms. However, we read the preliminary statement of the District Court to the decree and the summary decree itself as an adjudication of violation of the Sherman Act by the action in concert of the defendants through the fixed-price licenses, accepting as true the underlying facts in defendants’ proof by proffer. The trial judges understood the summary judgment to be, as Judge Stephens said, “limited to that one undisputed question.” Judge Garrett and Judge Jackson agreed. That conclusion entitled the Government only to relief based on that finding and the proffered facts. On that basis we dismissed United States Gypsum’s appeal from the decree, and on that basis we examine the Government’s objection to the decree. II. The Government’s proposed amendments to the decree. — A trial court upon a finding of a conspiracy in restraint of trade and a monopoly has the duty to compel action by the conspirators that will, so far as practicable, cure the ill effects of the illegal conduct, and assure the public freedom from its continuance. Such action is not limited to prohibition of the proven means by which the evil was accomplished, but may range broadly through practices connected with acts actually found to be illegal. Acts entirely proper when viewed alone may be prohibited. The conspirators should, so far as practicable, be denied future benefits from their forbidden conduct. The determination of the scope of the decree to accomplish its purpose is peculiarly the responsibility of the trial court. Its opportunity to know the record and to appraise the need for prohibitions or affirmative actions normally exceeds that of any reviewing court. This has been repeatedly recognized by us. Notwithstanding our adherence to trial court responsibility in the molding of a decree as the wisest practice and the most productive of good results, we have never treated that power as one of' discretion, subject only to reversal for gross abuse. Rather we have felt an obligation to intervene in this most significant phase of the case when we concluded there were inappropriate provisions in the decree. In resolving doubts as to the desirability of including provisions designed to restore future freedom of trade, courts should give weight to the fact of conviction as well as the circumstances under which the illegal acts occur. Acts in disregard of law call for repression by sterner measures than where the steps could reasonably have been thought permissible. We turn then to the Government’s proposals for modification of the decree on the assumption that only a violation through concerted industry license agreements has been proven, but recognizing, as is conceded by defendants, that relief, to be effective, must go beyond the narrow limits of the proven violation. (a) There is one change acceptable to the Government and United States Gypsum and which we think desirable. Article II, § 3, of the decree defines gypsum board as “made from gypsum and embodying any of the inventions or improvements set forth and claimed in any of the Patents.” This is too restrictive, and the words “and embodying any of the inventions or improvements set forth and claimed in any of the Patents” should be stricken, if the definition is used. (b) The Government accepts the finding of Article III of the decree but objects to Article V (2) and (3) because, read together, they allow agreements through price fixing by license between United States Gypsum and Pacific Coast licensees. The complaint of Sherman Act violation was restricted to the eastern territory of the United States. The evidence applied only to that area. However, the close similarity between interstate commerce violations of the Sherman Act in eastern territory and western territory seems sufficient to justify the enlargement of the geographical scope of the decree- to include all interstate commerce. Article V of the Government’s proposed decree indicates one way in which this extension could be accomplished. (c) The Government asks an extension of the decree to include all gypsum products instead of patented gypsum board alone. Compare Appendix, Article V. The license agreements, as indicated above, required royalties on unpatented open edge gypsum board. Board Survey, the organization created to enforce the license agreements, found possibilities of price evasion to exist by a licensee’s cutting prevailing prices on other commodities, sold in conjunction with patented gypsum board. Bulletins, issued to standardize sale practices, criticized rebates as vio-lative of the license agreements. 333 U. S. 364, 386. Defendants’ offer of proof did not deny such effort to systematize sales. Their explanation was that the efforts were to enforce legitimate license agreements and were not calculated steps in conspiracy or monopoly. We think the Government’s request that the decree’s injunctions reach gypsum products, as defined in its proposed decree, is reasonable and should be allowed. See U. S. proposed decree^ Article II, § 4, and Article Y. (d) The Government asks that the decree forbid standardization of trade practices through concerted agreement. Our former Gypsum opinion, pp. 382-383, gives a summary of the methods adoptéd. Another method of regulating sales was by special provision for certain classes of customers, jobbers and manufacturing distributors. See 333 U. S. at 397 and 399, n. 18. We think this would justify the Government’s requests. Article V, §§ 3, 4 and 6. (e) The Government asks the insertion of Article V, § 5, directed at an agreement for concerted action in selling or quoting products at prices calculated according to a delivered price system. It points out that such a system was said by this Court, 333 U. S. at 382, to have been employed, and no proffer of contrary proof has been made. Defendants argue as follows: The price for the patented product was “the lowest combination of mill price and rail freight from mill to destination.” Defendants urge that “The only witness at the trial who was interrogated about it said that the pricing system in the gypsum board industry was the very opposite of the basing point system; that the mill base prices were extended to all mills; and that it was really only a freight equalization method of pricing which resulted in the customer always getting the lowest possible price no matter from whom he bought." And they say “It was not established by the license bulletins, but licensor, in stating the minimum price, merely used the method of pricing as it then existed." Further, defendants point out “If appellee companies are to be questioned as to their method of pricing, they should be afforded a full hearing for the presentation of all pertinent matters bearing upon their pricing practices and should not be called upon to defend themselves in a summary hearing for an alleged contempt of court.” We think the defendants are unduly apprehensive. The Government’s proposed prohibition of delivered price arrangements is directed at concerted action, by agreement or understanding among the manufacturers, not at any system of pricing the individual manufacturer may adopt or any price that he may. make. Since the conspiracy for restraint of trade was furthered by this arrangement, use of such a method should be banned for the future. To avoid any possibility that an individual’s meeting of competitors’ prices would be construed as a contempt of the decree, we think proposed Article V, § 5 should read as follows: “5. Agreeing upon any plan of selling or quoting gypsum products at prices calculated or determined pursuant to a delivered price plan which results in identical prices or price quotations at given points of sales or quotation by defendants using such plan;” (f) The Government objects to Article VI of the decree which provides, § 1, for compulsory licensing for 90 days to any applicant of all then-owned patents relating to gypsum board at not to exceed the standardized royalties as theretofore charged to defendant licensees. The objection is that the limited time makes the requirement futile except for present licensees. There is a corollary objection to Article VIII because of provisions in the approved license agreements. Particular reference is made by the Government to an approved provision requiring the licensee to report its monthly sales and price with right to Gypsum to have an inspection by a certified public accountant approved by the parties. The Government fears the competitive advantage to Gypsum of knowing its competitors’ sales and prices, and the depressive effect of such information on a strenuous sales program by the licensee. The Government suggests expanding the requirement of licensing to include all United States Gypsum patents, old and new, with a provision by which new patents may be excluded after five years. See proposed decree, Article VI, § 6. Other proposed changes require all licensees to receive equal treatment as to royalties, put the burden of establishing royalty values on United States Gypsum and allow a licensee to attack the validity of patents. In United States v. National Lead Co., 332 U. S. 319, 335-351, we recently dealt with problems of licenses and royalties after a finding of Sherman Act violation. The arrangements on account of which the companies manufacturing titanium pigments in that combination were adjudged violators were as offensive to the prohibitions of the Sherman Act as those proven in the present case. Depending largely upon the discretion of the trial court, we refused to modify the decree. It ordered the accused patent owners to license all patents controlled by them concerning titanium and titanium manufactures during the succeeding five years at a reasonable royalty to be fixed by the Court. Paragraphs 4 and 7 of that decree, 332 U. S. at 335-337. The terms of the National Lead decree are somewhat like those the Government asks here. In the present case there should be no requirement of reciprocal grants. 332 U. S. 336. We think that the United States Gypsum Company should be required to license all its patents in the gypsum products field to all applicants on equal terms. Whether the term for compulsory licensing of new patents is to be five years, or for a longer period with the privilege to the appellees to move for a limitation for such new patents, as provided in the suggested decree, Article VI, § 6, we leave to the District Court. That court should provide for its determination of a reasonable royalty either in each instance of failure to agree or by an approved form or by any other plan in its discretion. We disapprove the Government’s suggestion that the burden of establishing the reasonableness of the requested royalty should be placed upon Gypsum by the decree. We do not decide where the burden of proof of value lies or who has the duty to go forward with the evidence in any particular instance. We disapprove the Government’s suggestion, contained'in Article VI, § 5, that the decree shall not be taken as preventing an “applicant” (we construe this as meaning licensee) attacking the patent or as importing value to it. We see no occasion for this unusual provision and think it should be entirely omitted. We direct that Article VI of the decree be so modified as generally to conform to the above suggestions. We approve the Government’s suggested provisions for inspection of licensees’ books and reports to licensor, substantially as set out in proposed Article VI, § 2 (c). (g) The Government seeks access to the records and personnel of the defendants for the purpose of advising itself as to the defendants’ compliance with the judgment. See proposed Article VIII. Construing the article as we did in United States v. Bausch & Lomb Co., 321 U. S. 707, 725, n. 6, we think the request reasonable. This article, or one of similar import, should be included in the decree. (h) We have noted the Government’s contentions in regard to the individual defendants, Avery, Knode, Baker, Ebsary and Tomkins, and its suggestion that Article III be modified so as to read “defendants” in the.first line, instead of “defendant companies.” It is true that these individuals signed the questioned agreements, but they were acting as officials and we think the provisions of Article V bar them from engaging in similar conspiracies. (i) The Government asks that all costs be taxed against the defendant companies. Article IX, proposed decree; Article X, decree entered. We see no reason to interfere with the discretion of the trial court in this matter. “With these general suggestions, the details and form of the injunction can be more satisfactorily determined by the District Court.” Its procedure for the settlement of a decree is more flexible than ours. The decree is reversed and the cause remanded to the District Court for further proceedings in conformity with this opinion. Reversed. Mr. Justice Black believes that all the amendments proposed by the Government to Article VI of the decree are necessary to protect the public from a continuation of monopolistic practices by United States Gypsum. Mr. Justice Jackson and Mr. Justice Clark took no part in the consideration or decision of this case. APPENDIX. District Court Decree of November 7, 1949. Preliminary Statement This cause came on for trial before this Court on November 15, 1943. At the conclusion of plaintiffs presentation of the case, defendants moved, pursuant to Rule 41 (b) of the Federal Rules of Civil Procedure, for judgment dismissing the complaint on its merits. The motion of defendants was granted August 6, 1946. The judgment so rendered by this Court was reversed by the Supreme Court of the United States, and the case was remanded to this Court for further proceedings in conformity with the opinion of the Supreme Court (333 U. S. 364). Following the remand, the plaintiff, pursuant to Rule 56 of the Federal Rules of Civil Procedure, moved for summary judgment in its favor upon the pleadings and all of the proceedings which theretofore had been had in the case, or, in the alternative, for «such further proceedings as this Court might direct, and defendants, by direction of the Court, filed proffers of proof. Argument by counsel for the respective parties upon the motion of plaintiff was heard by the Court, and after due consideration of such argument and of defendants’ proffers of proof, Garrett, J. and Jackson, J., constituting a majority of the Court, announced a ruling to the effect that plaintiff’s motion for summary judgment would be granted, and Stephens, J., who presided during the trial, announced his dissent from such ruling. Thereafter counsel for plaintiff and counsel for certain of the defendants submitted forms of final decrees for the consideration of the Court and also suggested findings of fact, the latter to be considered in the event the Court should deem it necessary to make any findings of fact additional to those originally found by it and to those stated in the opinion of the Supreme Court. In due course, the Court heard arguments respecting the proposed decrees and the suggested findings of fact, and full consideration has been given thereto and to all prior proceedings — all being considered in the light of the decision of the Supreme Court which, as understood by the majority of this Court, held that the defendants acted in concert to restrain trade and commerce in the gypsum board industry and monopolized said trade and commerce among the several states in that section hereinafter referred to as the eastern territory of the United States, which section embraces all the states of the United States westward from the eastern coast thereof to the Rocky Mountains and including New Mexico, Colorado, Wyoming, and the eastern half of Montana. Provisions of District Court Decree. Provisions of United States' Proposed Decree. [The articles of these decrees have been rearranged to facilitate comparison.] Article I This Court has jurisdiction of the subject matter hereof and of the parties hereto. The complaint states a cause of action against defendants under the Act of Congress of July 2, 1890, entitled “An Act to Protect Trade and Commerce Against Unlawful Restraints and Monopolies”, commonly known as the Sherman Anti-trust Act, and acts amendatory thereof and supplemental thereto, Article II As used in this decree: 1. “Defendant companies” shall mean all of the corporate defendants and Samuel M. Gloyd, doing business under the name of Texas Cement Plaster Company. 2. The “Patents” shall mean United States Letters Patent and applications for United States Letters Patent owned by defendant United States Gypsum Company which are described in the Patent Licenses, as hereinafter defined, and continuations in whole or in part, renewals, reissues, divisions, and extensions thereof. 3. “Gypsum board” shall mean plaster board or lath (including perforated and metallized lath) and wallboard (including metal-lized wallboard) made from gypsum and embodying any of the inventions or improvements set forth and claimed in any of the Patents. 4. “Patent Licenses” shall mean the patent license agreements which were in effect between defendant United States Gypsum Company and each of the other defendant companies at the time the complaint herein was filed and described in said complaint as follows: [Listed to cover all.] Article III The defendant companies have acted in concert in restraint of trade and commerce among the several states in the eastern territory of the United States to fix, maintain and control the prices of gypsum board and have monopolized trade and commerce in the gypsum board industry in violation of sections 1 and 2 of the Sherman Antitrust Act. Article IV Each of the license agreements listed in Article II hereof is adjudged unlawful under the antitrust laws of the United States and illegal, null and void. Article V Each of the defendant companies and each of their respective officers, directors, agents, employees, representatives, subsidiaries, and any person acting or claiming to act under, through or for them or any of them are hereby enjoined and restrained from (1) the further performance or enforcement of any of the provisions of the Patent Licenses, including any price bulletin issued thereunder; (2) entering into or performing any agreement or understanding among the defendants or any of them for the purpose or with the effect of continuing, reviving or reinstating any monopolistic practice. (3) entering into or performing any agreement or understanding among the defendants or any of them in restraint of trade and commerce in gypsum board among the several states in the eastern territory of the United States by license agreements to fix, maintain or stabilize prices of gypsum board or the terms and conditions of sale thereof. Article VI 1. Defendant United States Gypsum Company is hereby ordered and directed to grant to each applicant therefor within 90 days after the effective date hereof, but only in so far as it has the right to do so, a non-exclusive license to make, use and vend under any, some, or all patents and patent applications now owned or controlled by it relating to gypsum board, provided that such license agreement fixes a royalty not to exceed the royalty of the same article or process fixed in the license agreements set out in Article II hereof. 2. Defendant United States Gypsum Company is hereby enjoined and restrained from making any sale or other disposition of any of said patents or patent applications which would deprive it of the power or authority to grant such licenses, unless in any sale, transfer or assignment it shall be required that the purchaser, transferee or assignee shall observe the provisions of this section. Article VIII The forms of license agreement which the Court has this day ordered filed herein are hereby approved; and the tender by defendant United States Gypsum Company to each applicant for a license agreement containing the terms and conditions set forth in the applicable filed form or forms shall constitute compliance by defendant United States Gypsum Company with the provisions of Article VI. Article VII Nothing contained in this decree shall be deemed to have any effect upon the operations or activities of said defendants which are authorized or permitted by the Act of Congress of April 10, 1918, commonly called the Webb-Pomerene Act, or the Act of Congress of August 17, 1937, commonly called the Miller-Tyd-ings Act, or by any present or future act of Congress or amendment thereto; provided, however, nothing contained in this article shall in any manner affect the provisions of Article VI of this decree. Article X Judgment is entered against the defendant companies for 50% of the costs to be taxed in this proceeding, and the costs so to be taxed are hereby prorated against the several defendant companies as follows: [Here follows allocation.] Article IX Jurisdiction of this cause, and' of the parties hereto, is retained by the Court for the purpose of enabling any of the parties to this decree, or any other person, firm or corporation that may hereafter become bound thereby in whole or in part, to apply to this Court at any time for such orders, modifications, vacations or directions as may be necessary or appropriate (1) for the construction or carrying out of this decree, and (2) for the enforcement of compliance therewith. Article I This Court has jurisdiction of the subject matter hereof and of the parties hereto. The complaint states a cause of action against defendants under the Act of Congress of July 2, 1890, entitled “An Act to Protect Trade and Commerce Against Unlawful Restraints and Monopolies,” commonly known as the Sherman Antitrust Act, and acts amendatory thereof and supplemental thereto. Article II For the purposes of this judgment: 1. “Defendant companies” shall mean all of the corporate defendants and Samuel M. Gloyd, doing business under the name of Texas Cement Plaster Company. 2. “Patents” shall mean United States Letters Patent and applications for United States Letters Patent relating to gypsum board, its processes, methods of manufacture, or use, and continuations in whole or in part, renewals, reissues, divisions, and extensions of any such patent or patent application. 3. “Gypsum board” shalí mean plasterboard, lath, wallboard, special surfaced board, sheathing, liner board (including any such product which is perforated or metallized) made from gypsum. 4. “Gypsum products” shall mean gypsum board as defined in the preceding paragraph, and plaster, block, tile and Keene’s cement made from gypsum. 5. As used, in Article IV, “license agreements” shall mean the patent license agreements which were in effect between defendant United States Gypsum Company and each of the other defendant companies at the time the complaint herein was filed and described in said complaint as follows: [Listed to cover all.] Article III The defendants have acted in concert in restraint of trade and commerce among the several states in the eastern territory of the United States to fix, maintain and control the prices of gypsum board and have monopolized trade and commerce in the gypsum board industry in violation of Sections 1 and 2 of the Sherman Antitrust Act. Article IV Each of the license agreements listed in Article II hereof is adjudged unlawful under the antitrust laws of the United States and illegal, null and void. Article V The defendant companies, and their respective officers, directors, agents, employees, representatives, and subsidiaries, be and each of them hereby is enjoined from entering into or performing any agreement or understanding to fix, maintain, stabilize, or make uniform, by patent license agreements or by other concerted action, the prices, or the terms or conditions of sale of, gypsum products sold or offered for sale or resale in or affecting interstate commerce; and from engaging in, pursuant to such an agreement or understanding, any of the following acts or practices: 1. Fixing, maintaining or making uniform the kinds, types, or varieties of gypsum products manufactured or sold, or the methods of manufacturing, selling, packaging, shipping, delivering or distributing gypsum products; 2. Refraining from the manufacture, sale or distribution of any kind, type, or variety of gypsum products or the method of manufacturing, selling, packaging, shipping, delivering or distributing gypsum products; 3. Agreeing upon or adhering to any basis for the selection or classification of purchasers of gypsum products; 4. Refraining from selling gypsum products to any purchaser or any class of purchasers; 5. Agreeing upon or adhering to any system of selling or quoting gypsum products at prices calculated or determined pursuant to a basing point delivered price system or any other plan or system which results in identical prices or price quotations at given points of sale or quotation by defendants using such plan or system; 6. Policing, investigating, checking or inquiring into the prices, quantities, terms or conditions of any offer to sell or sale of gypsum products. Article VI 1. Defendant United States Gypsum Company is hereby ordered and directed to grant to each applicant therefor a nonexclusive license to make, use and vend under any, some or all of the patents now or hereafter owned or controlled by it Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Blackmun delivered the opinion of the Court. John Schilb, of Belleville, Illinois, was arrested on January 16, 1969, and charged (a) with leaving the scene of an automobile accident and (b) with obstructing traffic. In order to gain his liberty pending trial, and in accord with the Illinois bail statutes hereinafter described, Schilb deposited $75 in cash with the clerk of the court. This amount was 10% of the aggregate bail fixed on the two charges ($500 on the first and $250 on the second). At his ensuing trial Schilb was acquitted of the charge of leaving the scene, but was convicted of traffic obstruction. When he paid his fine, the amount Schilb had deposited was returned to him decreased, however, by $7.50 retained as “bail bond costs” by the court clerk pursuant to the statute. The amount so retained was 1% of the specified bail and 10% of the amount actually deposited. Schilb, by this purported state class action against the court clerk, the county, and the county treasurer, attacks the statutory 1% charge on Fourteenth Amendment due process and equal protection grounds. The Circuit Court of St. Clair County upheld the statute and dismissed the complaint. The Supreme Court of Illinois affirmed, with two justices dissenting. 46 Ill. 2d 538, 264 N. E. 2d 377 (1970). We noted probable jurisdiction. 402 U. S. 928 (1971). I The Illinois bail statutes compose Article 110 of the State’s Code of Criminal Procedure of 1963, made effective January 1, 1964. This Code complemented Illinois’ then new and revised Criminal Code of 1961, made effective January 1, 1962. The work of revision of the theretofore existing statutes was that of a Joint Committee of the Illinois State and Chicago Bar Associations. See 1 Ill. Rev. Stat. 1963, p. 1629. Prior to 1964 the professional bail bondsman system with all its abuses was in full and odorous bloom in Illinois. Under that system the bail bondsman customarily collected the maximum fee (10% of the amount of the bond) permitted by statute, House Bill No. 734, approved July 17, 1959, Ill. Laws 1959, pp. 1372, 1376, and retained that entire amount even though the accused, fully satisfied the conditions of the bond. See People ex rel. Gendron v. Ingram, 34 Ill. 2d 623, 626, 217 N. E. 2d 803, 805 (1966). Payment of this substantial “premium” was required of the good risk as well as of the bad. The results were that a heavy and irretrievable burden fell upon the accused, to the excellent profit of the bondsman, and that professional bondsmen, and not the courts, exercised significant control over the actual workings of the bail system. One of the stated purposes of the new bail provisions in the 1963 Code was to rectify this offensive situation. The purpose appears to have been accomplished. It is said that the bail bondsman abruptly disappeared in Illinois “due primarily to the success of the ten percent bail deposit provision.” Boyle, Bail Under the Judicial Article, 17 De Paul L. Rev. 267, 272 (1968). See Kamin, Bail Administration in Illinois, 53 Ill. B. J. 674, 680 (1965). II Article 110 of the 1963 Code, as it read at the time Schilb was arrested and charged, provided that an eligible accused could obtain pretrial release in one of three ways: (1) Under § 110-2 he may be released on his personal recognizance. (2) Under § 110-7 he may execute a bail bond and deposit with the clerk cash equal to only 10% of the bail or $25, whichever is the greater. When bail is made in this way and the conditions of the bond have been performed, the clerk returns to the accused 90% of the sum deposited. The remaining 10% (1% of the bail) is retained by the clerk “as bail bond costs.” (3) Under § 110-8 he may execute a bail bond and secure it by a deposit with the clerk of the full amount of the bail in cash, or in stocks and bonds authorized for trust funds in Illinois, or by unencumbered nonexempt Illinois real estate worth double the amount of the bail. When bail is made in this way and the conditions of the bond have been performed, the clerk returns the deposit of cash or stocks or bonds, or releases the real estate, as the case may be, without charge or retention of any amount. In each case bail is fixed by a judicial officer. Section 110-5 prescribes factors to be considered in fixing the amount of bail. Under § 110-6 either the State or the defendant may apply to the court for an increase or for a reduction in the amount of bail or for alteration of the bond’s conditions. The choice between § 110-7 and § 110-8 is reserved to the accused. The thinking and intentions of the Joint Committee revisers are apparent from the Committee’s comments, as revised by its Chairman, Professor Charles H. Bowman, and reproduced in Ill. Ann. Stat., c. 38 (Smith-Hurd ed. 1970). “(5) Considerate of the financial ability of the accused.” The parties have stipulated that when bail in a particular case is fixed, the judge’s “discretion in such respect is not guided by statute, rule of court or any definite, fixed standard; various and divers judges in fact fix the amount of bail for the same types of offenses at various and divers amounts, without relationship as to guilt or innocence of the particular defendant in a criminal charge, and without relationship of the particular offense charged and the bail fixed.” They have also stipulated, “The actual cost of administering the provisions of said Sections 110-7 and 110-8 are substantially the same but there may probably be a slightly greater cost in the administration of Section 110-8.” III The Court more than once has said that state legislative reform by way of classification is not to be invalidated merely because the legislature moves one step at a time. “The prohibition of the Equal Protection Clause goes no further than the invidious discrimination.” Williamson v. Lee Optical Co., 348 U. S. 483, 489 (1955). “Legislatures are presumed to have acted constitutionally . . . and their statutory classifications will be set aside only if no grounds can be conceived to justify them. . . . With this much discretion, a legislature traditionally has been allowed to take reform 'one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.’ ” McDonald v. Board of Election Commissioners, 394 U. S. 802, 809 (1969). The measure of equal protection has been described variously as whether “the distinctions drawn have some basis in practical experience,” South Carolina v. Katzenbach, 383 U. S. 301, 331 (1966), or whether the legislature’s action falls short of “the invidious discrimination,” Williamson v. Lee Optical Co., 348 U. S., at 489, or whether “any state of facts reasonably may be conceived to justify” the statutory discrimination, McGowan v. Maryland, 366 U. S. 420, 426 (1961); see United States v. Maryland Savings-Share Ins. Corp., 400 U. S. 4, 6 (1970), or whether the classification is “on the basis of criteria wholly unrelated to the objective of [the] statute,” Reed v. Reed, ante, p. 71, at 76. But the Court also has refined this traditional test and has said that a statutory classification based upon suspect criteria or affecting “fundamental rights” will encounter equal protection difficulties unless justified by a “compelling governmental interest.” Shapiro v. Thompson, 394 U. S. 618, 634, 638 (1969); Oregon v. Mitchell, 400 U. S. 112, 247 n. 30 (1970) (opinion of Brennan, White, and Marshall, JJ.). Bail, of course, is basic to our system of law, Stack v. Boyle, 342 U. S. 1 (1951); Herzog v. United States, 75 S. Ct. 349, 351, 99 L. Ed. 1299, 1301 (1955) (opinion of Douglas, J.), and the Eighth Amendment’s proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment. Pilkinton v. Circuit Court, 324 F. 2d 45, 46 (CA8 1963); see Robinson v. California, 370 U. S. 660, 666 (1962), and id., at 675 (Douglas, J., concurring). But we are not at all concerned here with any fundamental right to bail or with any Eighth Amendment-Fourteenth Amendment question of bail excessiveness. Our concern, instead, is with the 1% cost-retention provision. This smacks of administrative detail and of procedure and is hardly to be classified as a “fundamental” right or as based upon any suspect criterion. The applicable measure, therefore, must be the traditional one: Is the distinction drawn by the.statutes invidious and without rational basis? Dandridge v. Williams, 397 U. S. 471, 483-487 (1970). See Richardson v. Belcher, ante, p. 78, at 81. IV With this background, we turn to the appellants' primary argument. It is threefold: (1) that the 1% retention charge under § 110-7 (f) is imposed on only one segment of the class gaining pretrial release; (2) that it is imposed on the poor and nonaffluent and not on the rich and affluent; and (3) that its imposition with respect to an accused found innocent amounts to a court cost assessed against the not-guilty person. We are compelled to note preliminarily that the attack on the Illinois bail statutes, in a very distinct sense, is paradoxical. The benefits of the new system, as compared with the old, are conceded. And the appellants recognize that under the pre-1964 system Schilb’s particular bail bond cost would have been 10% of his bail, or $75; that this premium price for his pretrial freedom, once paid, was irretrievable; and that, if he could not have raised the $75, he would have been consigned to jail until his trial. Thus, under the old system the cost of Schilb’s pretrial freedom was $75, but under the new it was only $7.50. While acknowledging this obvious benefit of the statutory reform, Schilb and his co-appellants decry the classification the statutes make and present the usual argument that the legislation must be struck down because it does not reform enough. A. It is true that no charge is made to the accused who is released on his personal recognizance. We are advised, however, that this was also true under the old (pre-1964) system and that “Illinois has never charged people out on recognizance.” Thus, the burden on the State with respect to a personal recognizance is no more under the new system than what the State had assumed under the old. Also, with a recognizance, there is nothing the State holds for safekeeping, with resulting responsibility and additional paperwork. All this provides a rational basis for distinguishing between the personal recognizance and the deposit situations. There is also, however, no retention charge to the accused who deposits the full amount of cash bail or securities or real estate. Yet the administrative cost attendant upon the 10% deposit and that upon the full deposit are, by the stipulation, “substantially the same” with, indeed, any higher cost incurred with respect to the full deposit. This perhaps is a more tenuous distinction, but we cannot conclude that it is constitutionally vulnerable. One who deposits securities or encumbers his real estate precludes the use of that property for other purposes. And one who deposits the full amount of his bail in cash is dispossessed of a productive asset throughout the period of the deposit; presumably, at least, its interim possession by the State accrues to the benefit of the State. Further, the State’s protection against the expenses that inevitably are incurred when bail is jumped is greater when 100% cash or securities or real estate is deposited or obligated than when only 10% of the bail amount is advanced. The Joint Committee’s and the State Legislature’s decision in balancing these opposing considerations in the way that they did cannot be described as lacking in rationality to the point where equal protection considerations require that they be struck down. Rinaldi v. Yeager, 384 U. S. 305 (1966), lends no support to the appellants here. In that case a New Jersey statute imposed the cost of a transcript upon the indigent appellant who had been convicted of a crime and was sentenced to prison and who then was unsuccessful on his appeal. The statute, however, did not impose that cost upon the indigent appellant who likewise was convicted of a crime, and was unsuccessful on his appeal, but who had received a suspended sentence or who had been placed on probation or who had been fined rather than sentenced to prison. The distinction the New Jersey statute drew between appellants was based only upon the nature of their punishment, and the burden was imposed only upon those who were confined. The Court held, and rightly so, that a punishment distinction had no rational connection with a transcript cost and served to deny equal protection to the convicted appellant whose liberty was at issue on the appeal. Mr. Justice Stewart, in speaking for the Court, said, “The Equal Protection Clause requires more of a state law than nondiscriminatory application within the class it establishes. It also imposes a requirement of some rationality in the nature of the class singled out. To be sure, the constitutional demand is not a demand that a statute necessarily apply equally to all persons. ‘The Constitution does not require things which are different in fact ... to be treated in law as though they were the same.’ Hence, legislation may impose special burdens upon defined classes in order to achieve permissible ends. But the Equal Protection Clause does require that, in defining a class subject to legislation, the distinctions that are drawn have ‘some relevance to the purpose for which the classification is made.’ ” 384 U. S., at 308-309 (citations omitted). The New Jersey distinction thus was invidious and without rationality for it was not related to the fiscal objectives of the statute and rested on no administrative convenience. B. The poor-man-affluent-man argument centers, of course, in Griffin v. Illinois, 351 U. S. 12 (1956), and in the many later cases that “reaffirm allegiance to the basic command that justice be applied equally to all persons.” Williams v. Illinois, 399 U. S. 235, 241 (1970). In no way do we withdraw today from the Griffin principle. That remains steadfast. But it is by no means certain, as the appellants suggest, that the 10% deposit provision under § 110-7 is a provision for the benefit of the poor and the less affluent and that the full-deposit provision of § 110-8 is one for the rich and the more affluent. It should be obvious that the poor man’s real hope and avenue for relief is the personal recognizance provision of § 110-2. We do not presume to say, as the appellants in their brief intimate, that § 110-2 is not utilized by Illinois judges and made available for the poor and the less affluent. Neither is it assured, as the appellants also suggest, that the affluent will take advantage of the full-deposit provision of § 110-8, with no retention charge, and that the less affluent are relegated to the 10% deposit provision of § 110-7 and the 1%- retention charge. The record is silent, but the flow indeed may be the other way. The affluent, more aware of and more experienced in the marketplace, may see the advantage, in these days of high interest rates, in retaining the use of 90% of the bail amount. A 5% or greater return on this 90% in a short period of time more than offsets the 1% retention charge. In other words, it is by no means clear that the route of § 110-8 is more attractive to the affluent defendant than the § 110-7 route. The situation, therefore, wholly apart from the fact that appellant Schilb himself has not pleaded indigency, is not one where we may assume that the Illinois plan works to deny relief to the poor man merely because of his poverty. C. The court-cost argument is that the person found innocent but already “put to the expense, disgrace and anguish of a trial” is “then assessed a cost for exercising his right to release pending trial.” Giaccio v. Pennsylvania, 382 U. S. 399 (1966), is cited. Giaccio was a holding that an ancient Pennsylvania statute that permitted the jury to impose court costs upon an acquitted defendant, in order to offset the expenses of prosecution, violated the Due Process Clause because of vagueness and the absence of any standards preventing the arbitrary imposition of costs. The Court thus did not reach the merits, although Mr. Justice Stewart and Mr. Justice Fortas, each separately concurring, 382 U. S., at 406, felt that the very imposition of costs upon an acquitted defendant was violative of due process. Giaccio is not dispositive precedent for the appellants here. Certainly § 110-7 is not subject to attack for vagueness or for lack of standards. Neither is it a vehicle for the imposition of costs of prosecution as was the Pennsylvania statute. Instead, § 110-7 authorizes retention of the 1% as "bail bond costs." This is what that description implies, namely, an administrative cost imposed upon all those, guilty and innocent alike, who seek the benefit of § 110-7. This conclusion is supported by the presence of the long-established Illinois rule against the imposition of costs of prosecution upon an acquitted or discharged criminal defendant, Wells v. McCullock, 13 Ill. 606 (1852), and by the Illinois court’s own determination, 46 Ill. 2d, at 551-552, 264 N. E. 2d, at 384, that the charge under § 110-7 (f) is an administrative fee and not a cost of prosecution imposed under Ill. Rev. Stat., c. 38, § 180-3 (1969), only upon the convicted defendant. V Finally, the appellants would point out that Article 110 has its federal counterpart in § 3 (a) of the Bail Reform Act of 1966, Pub. L. 89-465, 89th Cong., 2d Sess., 80 Stat. 214, and in particular in that portion now codified as 18 U. S. C. §3146 (a)(3). They note that S. 2840, 88th Cong., 2d Sess., contained a 1% retention provision “to defray bail bond costs” but that a parallel bill, S. 1357, 89th Cong., 1st Sess., as it progressed through Congress, at no time had a provision of that kind. It was S. 1357 that was enacted as Pub. L. 89-465. The committee reports, S. Rep. No. 750, 89th Cong., 1st Sess., and H. R. Rep. No. 1541, 89th Cong., 2d Sess., accompanying the 1966 Act, and the debates, 112 Cong. Rec. 12488-12504, 12841-12843, make no reference to this change from the earlier S. 2840. In the face of this silence, and without more, and being cognizant of the fact that the federal act, unlike the Illinois one, was not directed against the professional bail bondsman, we are not inclined to read constitutional implications into the absence of the retention provision in the Bail Reform Act of 1966. Neither are we inclined to read constitutional implications into either the presence or the absence of a retention provision in corresponding statutes of States other than Illinois. See N. Y. Laws 1936, c. 518, N. Y. Code Crim. Proc. § 586.3 (Supp. 1970-1971), having a 2% fee provision, now replaced by §§ 520.10-520.30 of New York’s new Criminal Procedure Law, effective September 1, 1971, without the provision. See Wis. Stat. §§969.02 (5) and 969.03 (l)(c) (1969), where a 1% fee is specified but not upon dismissal or acquittal. See Alaska Stat. § 12.30.020 (b) (4) (Supp. 1971); D. C. Code Ann. § 23-1321 (a) (3) (Supp. 1971); and Iowa Code Ann. § 763.16.1c. (Supp. 1971), in each of which a 10% deposit is authorized with no fee-retention provision. VI We refrain from nullifying this Illinois statute that, with its companion sections, has brought reform and needed relief to the State’s bail system. The judgment of the Supreme Court of Illinois is Affirmed. Schilb also attacked the statute as violative of Art. II, §§ 2 and 19, of the Illinois Constitution of 1870 (now Art. I, §§ 2 and 12, of the State’s 1970 Constitution). See D. Freed & P. Wald, Bail in the United States: 1964, pp. 34-35 (1964); R. Goldfarb, Ransom 92-126 (1965); Bowman, The Illinois Ten Per Cent Bail Deposit Provision, 1965 U. Ill. L. F. 35. “§ 110-2. Release on Own Recognizance “When from all the circumstances the court is of the opinion that the accused will appear as required either before or after conviction the accused may be released on his own recognizance. . . . “This Section shall be liberally construed to effectuate the purpose of relying upon criminal sanctions instead of financial loss to assure the appearance of the accused.” “§ 110-7. Deposit of Bail Security “(a) The person for whom bail has been set shall execute the bail bond and deposit with the clerk of the court before which the proceeding is pending a sum of money equal to 10% of the bail, but in no event shall such deposit be less than $25. “(f) When the conditions of the bail bond have been performed and the accused has been discharged from all obligations in the cause the clerk of the court shall return to the accused 90% of the sum which had been deposited and shall retain as bail bond costs 10% of the amount deposited.” Section 110-7 (f) was amended in 1969 by Pub. Act 76-1195, approved Sept. 4, 1969, by Pub. Act 76-1394, approved Sept. 19, 1969, and by Pub. Act 76-1801, approved Oct. 9, 1969. It was further amended in 1970 by Pub. Act 76-2078, approved June 22, 1970, and now reads: “(f) When the conditions of the bail bond have been performed and the accused has been discharged from all obligations in the cause the clerk of the court shall return to the accused, unless the court orders otherwise, 90% of the sum which had been deposited and shall retain as bail bond costs 10% of the amount deposited. However, in no event shall the amount retained by the clerk as bail bond costs be less than $5. “At the request of the defendant the court may order such 90% of defendant’s bail deposit, or whatever amount repayable to defendant from such deposit, to be paid to defendant’s attorney of record.” “§ 110-8. Cash, Stocks, Bonds and Real Estate as Security for Bail “(a) In lieu of the bail deposit provided for in Section 110-7 of this Code any person for whom bail has been set may execute the bail bond with or without sureties which bond may be secured: “(1) By a deposit, with the clerk of the court, of an amount equal to the required bail, of cash, or stocks and bonds in which trustees are authorized to invest trust funds under the laws of this State; or “(2) By real estate situated in this State with unencumbered equity not exempt owned by the accused or sureties worth double the amount of bail set in the bond. “(f) When the conditions of the bail bond have been performed and the accused has been discharged from his obligations in the cause, the clerk of the court shall return to him or his sureties the deposit of any cash, stocks or bonds. If the bail bond has been secured by real estate the clerk of the court shall forthwith notify in writing the registrar of titles or recorder of deeds and the lien of the bail bond on the real, estate shall be discharged.” “§ 110-5. Determining the Amount of Bail “(a) The amount of bail shall be: “(1) Sufficient to assure compliance with the conditions set forth in the bail bond; “(2) Not oppressive; “(3) Commensurate with the nature of the offense charged; “(4) Considerate of the past criminal acts and conduct of the defendant; “§ 110-6. Reduction or Increase of Bail “(a) Upon application by the State or the defendant the court before which the proceeding is pending may increase or reduce the amount of bail or may alter the conditions of the bail bond.” “. . . The provisions of sections 110-7 and 110-8 were designed to severely restrict the activities of professional bail bondsmen and to reduce the cost of liberty to arrested persons awaiting trial. . . P. 298. “The committee realized full well the many arguments advanced in opposition to changing the present system. We were not impressed with any of them. If a person can pay a professional bondsman ten per cent of the bail amount as a fee, he can deposit it with the clerk. At the present time he receives nothing back from the bondsman if he appears for trial; his ten per cent fee is gone. Under the provisions of [§ 110-7 (f)] he gets back ninety per cent of the amount deposited if he appears. The ten per cent of the deposit retained by the county will offset in monetary amount the costs of handling bail bonds (which must be done now anyway), and any loss resulting from the occasional bail jumper where the professional bondsman might now forfeit the amount of the bail. . . .” P. 300. “This section [§ 110-7] is new and provides the procedure for depositing ten per cent of the amount of bail as security for appearance. However, the bail bond will provide for forfeiture of the full amount of the bail upon non-appearance. In addition, the accused would be subject to the penal provisions for bail jumping. However, subsection (f) provides for a return of ninety per cent of the bail deposit (which amounts to [retention of] one per cent of the amount of bail set by the court in the first instance) to the accused upon compliance with the conditions of the bail bond. The ten per cent of the deposit retained by the clerk is to cover costs of handling bail bonds and deposits.” P. 316. “There is nothing in Article 110 which is intended to work any additional hardship on anyone in the giving of bail. It is designed to permit the continuation of present practices in regard to sheriffs, police officers, etc., taking cash bail or drivers’ licenses, and to simplify the procedures in all other cases so as to lessen the ultimate cost of bail to offenders (by thousands of dollars each year) who appear for trial anyway, and to assure to the counties in every case a reasonable amount (one per cent of the total amount of bail set) to cover the cost of time and paper-work involved in handling bail cases.” P. 324. Schilb has neither alleged nor shown that he is indigent or that he applied for and was denied release on his personal recognizance. No question of standing, however, was raised in the Illinois courts or here. The Illinois Supreme Court found it unnecessary to pass upon the propriety of the class action. 46 Ill. 2d, at 552, 264 N. E. 2d, at 384. “QUESTION: Mr. O’Toole [counsel for appellants], [if] you prevail here, do you anticipate the old bond[s]naan system will be revised? “MR. O’TOOLE: Oh no, your Honor . . . that is the furthest thing — we want to make that eminently clear. We believe this to be very good legislation. We feel this aspect of it is wrong. -Definitely not, there would not be any reincarnation of the bondsman.” Tr. of Oral Arg. 11. Tr. of Oral Arg. 27. “Thus, those least able to afford it, the poor and non-affluent, who have no choice but to remain in jail or deposit 10% of bail, are unconstitutionally ‘penalized in a quest for justice due to a lack of wealth.’ ” Brief for Appellants 16. Brief for Appellants 16. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Chief Justice Rehnquist delivered the opinion of the Court. A Florida Highway Patrol trooper stopped respondent Wells for speeding. After smelling alcohol on Wells’ breath, the trooper arrested Wells for driving under the influence. Wells then agreed to accompany the trooper to the station to take a breathalyzer test. The trooper informed Wells that the car would be impounded and obtained Wells’ permission to open the trunk. At the impoundment facility, an inventory search of the car turned up two marijuana cigarette butts in an ashtray and a locked suitcase in the trunk. Under the trooper’s direction, employees of the facility forced open the suitcase and discovered a garbage bag containing a considerable amount of marijuana. Wells was charged with possession of a controlled substance. His motion to suppress the marijuana on the ground that it was seized in violation of the Fourth Amendment to the United States Constitution was denied by the trial court. He thereupon pleaded nolo contendere to the charge but reserved his right to appeal the denial of the motion to suppress. On appeal, the Florida District Court of Appeal for the Fifth District held, inter alia, that the trial court erred in denying suppression of the marijuana found in the suitcase. Over a dissent, the Supreme Court of Florida affirmed. 539 So. 2d 464, 469 (1989). We granted certiorari, 491 U. S. 903 (1989), and now affirm (although we disagree with part of the reasoning of the Supreme Court of Florida). The Supreme Court of Florida relied on the opinions in Colorado v. Bertine, 479 U. S. 367 (1987); id., at 376 (Blackmun, J., concurring). Referring to language in the Bertine concurrence and a footnote in the majority opinion, the court held that “[i]n the absence of a policy specifically requiring the opening of closed containers found during a legitimate inventory search, Bertine prohibits us from countenancing the procedure followed in this instance.” 539 So. 2d, at 469. According to the court, the record contained no evidence of any Highway Patrol policy on the opening of closed containers found during inventory searches. Ibid. The court added, however: “The police under Bertine must mandate either that all containers will be opened during an inventory search, or that no containers will be opened. There can be no room for discretion.” Ibid. While this latter statement of the Supreme Court of Florida derived support from a sentence in the Bertine concurrence taken in isolation, we think it is at odds with the thrust of both the concurrence and the opinion of the Court in that case. We said in Bertine: “Nothing in [South Dakota v.] Opperman[, 428 U. S. 364 (1976),] or [Illinois v.] Lafayette[, 462 U. S. 640 (1983),] prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.” 479 U. S., at 375. Our view that standardized criteria, ibid., or established routine, Illinois v. Lafayette, 462 U. S. 640, 648 (1983), must regulate the opening of containers found during inventory searches is based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. The policy or practice governing inventory searches should be designed to produce an inventory. The individual police officer must not be allowed so much latitude that inventory searches are turned into “a purposeful and general means of discovering evidence of crime,” Bertine, 479 U. S., at 376 (Blackmun, J., concurring). But in forbidding uncanalized discretion to police officers conducting inventory searches, there is no reason to insist that they be conducted in a totally mechanical “all or nothing” fashion, “[inventory procedures serve to protect an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger.” Id., at 372; see also South Dakota v. Opperman, 428 U. S. 364, 369 (1976). A police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself. Thus, while policies of opening all containers or of opening no containers are unquestionably permissible, it would be equally permissible, for example, to allow the opening of closed containers whose contents officers determine they are unable to ascertain from examining the containers’ exteriors. The allowance of the exercise of judgment based on concerns related to the purposes of an inventory search does not violate the Fourth Amendment. In the present case, the Supreme Court of Florida found that the Florida Highway Patrol had no policy whatever with respect to the opening of closed containers encountered during an inventory search. We hold that absent such a policy, the instant search was not sufficiently regulated to satisfy the Fourth Amendment and that the marijuana which was found in the suitcase, therefore, was properly suppressed by the Supreme Court of Florida. Its judgment is therefore Affirmed. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Stevens delivered the opinion of the Court. In 2000, the city of New London approved a development plan that, in the words of the Supreme Court of Connecticut, was “projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its downtown and waterfront areas.” 268 Conn. 1, 5, 848 A. 2d 500, 507 (2004). In assembling the land needed for this project, the city’s development agent has purchased property from willing sellers and proposes to use the power of eminent domain to acquire the remainder of the property from unwilling owners in exchange for just compensation. The question presented is whether the city’s proposed disposition of this property qualifies as a “public use” within the meaning of the Takings Clause of the Fifth Amendment to the Constitution. > — I The city of New London (hereinafter City) sits at the junction of the Thames River and the Long Island Sound in southeastern Connecticut. Decades of economic decline led a state agency in 1990 to designate the City a “distressed municipality.” In 1996, the Federal Government closed the Naval Undersea Warfare Center, which had been located in the Fort Trumbull area of the City and had employed over 1,500 people. In 1998, the City’s unemployment rate was nearly double that of the State, and its population of just under 24,000 residents was at its lowest since 1920. These conditions prompted state and local officials to target New London, and particularly its Fort Trumbull area, for economic revitalization. To this end, respondent New London Development Corporation (NLDC), a private nonprofit entity established some years earlier to assist the City in planning economic development, was reactivated. In January 1998, the State authorized a $5.35 million bond issue to support the NLDC’s planning activities and a $10 million bond issue toward the creation of a Fort Trumbull State Park. In February, the pharmaceutical company Pfizer Inc. announced that it would build a $800 million research facility on a site immediately adjacent to Fort Trumbull; local planners hoped that Pfizer would draw new business to the area, thereby serving as a catalyst to the area’s rejuvenation. After receiving initial approval from the city council, the NLDC continued its planning activities and held a series of neighborhood meetings to educate the public about the process. In May, the city council authorized the NLDC to formally submit its plans to the relevant state agencies for review. Upon obtaining state-level approval, the NLDC finalized an integrated development plan focused on 90 acres of the Fort Trumbull area. The Fort Trumbull area is situated on a peninsula that juts into the Thames River. The area comprises approximately 115 privately owned properties, as well as the 32 acres of land formerly occupied by the naval facility (Trumbull State Park now occupies 18 of those 32 acres). The development plan encompasses seven parcels. Parcel 1 is designated for a waterfront conference hotel at the center of a “small urban village” that will include restaurants and shopping. This parcel will also have marinas for both recreational and commercial uses. A pedestrian “riverwalk” will originate here and continue down the coast, connecting the waterfront areas of the development. Parcel 2 will be the site of approximately 80 new residences organized into an urban neighborhood and linked by public walkway to the remainder of the development, including the state park. This parcel also includes space reserved for a new U. S. Coast Guard Museum. Parcel 3, which is located immediately north of the Pfizer facility, will contain at least 90,000 square feet of research and development office space. Parcel 4A is a 2.4-acre site that will be used either to support the adjacent state park, by providing parking or retail services for visitors, or to support the nearby marina. Parcel 4B will include a renovated marina, as well as the final stretch of the riverwalk. Parcels 5, 6, and 7 will provide land for office and retail space, parking, and water-dependent commercial uses. App. 109-113. The NLDC intended the development plan to capitalize on the arrival of the Pfizer facility and the new commerce it was expected to attract. In addition to creating jobs, generating tax revenue, and helping to “build momentum for the revitalization of downtown New London,” id., at 92, the plan was also designed to make the City more attractive and to create leisure and recreational opportunities on the waterfront and in the park. The city council approved the plan in January 2000, and designated the NLDC as its development agent in charge of implementation. See Conn. Gen. Stat. § 8-188 (2005). The city council also authorized the NLDC to purchase property or to acquire property by exercising eminent domain in the City’s name. §8-193. The NLDC successfully negotiated the purchase of most of the real estate in the 90-acre area, but its negotiations with petitioners failed. As a consequence, in November 2000, the NLDC initiated the condemnation proceedings that gave rise to this case. I — I HH Petitioner Susette Kelo has lived in the Fort Trumbull area since 1997. She has made extensive improvements to her house, which she prizes for its water view. Petitioner Wilhelmina Dery was born in her Fort Trumbull house in 1918 and has lived there her entire life. Her husband Charles (also a petitioner) has lived in the house since they married some 60 years ago. In all, the nine petitioners own 15 properties in Fort Trumbull — 4 in parcel 3 of the development plan and 11 in parcel 4A. Ten of the parcels are occupied by the owner or a family member; the other five are held as investment properties. There is no allegation that any of these properties is blighted or otherwise in poor condition; rather, they were condemned only because they happen to be located in the development area. In December 2000, petitioners brought this action in the New London Superior Court. They claimed, among other things, that the taking of their properties would violate the “public use” restriction in the Fifth Amendment. After a 7-day bench trial, the Superior Court granted a permanent restraining order prohibiting the taking of the properties located in parcel 4A (park or marina support). It, however, denied petitioners relief as to the properties located in parcel 3 (office space). App. to Pet. for Cert. 343-350. After the Superior Court ruled, both sides took appeals to the Supreme Court of Connecticut. That court held, over a dissent, that all of the City’s proposed takings were valid. It began by upholding the lower court’s determination that the takings were authorized by chapter 132, the State’s municipal development statute. See Conn. Gen. Stat. § 8-186 et seq. (2005). That statute expresses a legislative determination that the taking of land, even developed land, as part of an economic development project is a “public use” and in the “public interest.” 268 Conn., at 18-28, 843 A. 2d, at 515-521. Next, relying on cases such as Hawaii Housing Authority v. Midkiff, 467 U. S. 229 (1984), and Berman v. Parker, 348 U. S. 26 (1954), the court held that such economic development qualified as a valid public use under both the Federal and State Constitutions. 268 Conn., at 40, 843 A. 2d, at 527. Finally, adhering to its precedents, the court went on to determine, first, whether the takings of the particular properties at issue were “reasonably necessary” to achieving the City’s intended public use, id., at 82-84, 843 A. 2d, at 552-553, and, second, whether the takings were for “reasonably foreseeable needs,” id., at 93-94, 843 A. 2d, at 558-559. The court upheld the trial court’s factual findings as to parcel 3, but reversed the trial court as to parcel 4A, agreeing with the City that the intended use of this land was sufficiently definite and had been given “reasonable attention” during the planning process. Id., at 120-121, 843 A. 2d, at 574. The three dissenting justices would have imposed a “heightened” standard of judicial review for takings justified by economic development. Although they agreed that the plan was intended to serve a valid public use, they would have found all the takings unconstitutional because the City had failed to adduce “clear and convincing evidence” that the economic benefits of the plan would in fact come to pass. Id., at 144, 146, 843 A. 2d, at 587, 588 (Zarella, J., joined by Sullivan, C. J., and Katz, J., concurring in part and dissenting in part). We granted certiorari to determine whether a city’s decision to take property for the purpose of economic development satisfies the “public use” requirement of the Fifth Amendment. 542 U. S. 965 (2004). Two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future “use by the public” is the purpose of the taking; the condemnation of land for a railroad with common-carrier duties is a familiar example. Neither of these propositions, however, determines the disposition of this case. As for the first proposition, the City would no doubt be forbidden from taking petitioners' land for the purpose of conferring a private benefit on a particular private party. See Midkiff, 467 U. S., at 245 (“A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void”); Missouri Pacific R. Co. v. Nebraska, 164 U. S. 403 (1896). Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit. The takings before us, however, would be executed pursuant to a “carefully considered” development plan. 268 Conn., at 54, 843 A. 2d, at 536. The trial judge and all the members of the Supreme Court of Connecticut agreed that there was no evidence of an illegitimate purpose in this case. Therefore, as was true of the statute challenged in Midkiff, 467 U. S., at 245, the City’s development plan was not adopted “to benefit a particular class of identifiable individuals.” On the other hand, this is not a case in which the City is planning to open the condemned land — at least not in its entirety — to use by the general public. Nor will the private lessees of the land in any sense be required to operate like common carriers, making their services available to all comers. But although such a projected use would be sufficient to satisfy the public use requirement, this “Court long ago rejected any literal requirement that condemned property be put into use for the general public.” Id., at 244. Indeed, while many state courts in the mid-19th century endorsed “use by the public” as the proper definition of public use, that narrow view steadily eroded over time. Not only was the “use by the public” test difficult to administer (e. g., what proportion of the public need have access to the property? at what price?), but it proved to be impractical given the diverse and always evolving needs of society. Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as “public purpose.” See, e. g., Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112, 158-164 (1896). Thus, in a case upholding a mining company’s use of an aerial bucket line to transport ore over property it did not own, Justice Holmes’ opinion for the Court stressed “the inadequacy of use by the general public as a universal test.” Strickley v. Highland Boy Gold Mining Co., 200 U. S. 527, 531 (1906). We have repeatedly and consistently rejected that narrow test ever since. The disposition of this case therefore turns on the question whether the City’s development plan serves a “public purpose.” Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field. In Berman v. Parker, 348 U. S. 26 (1954), this Court upheld a redevelopment plan targeting a blighted area of Washington, D. C., in which most of the housing for the area’s 5,000 inhabitants was beyond repair. Under the plan, the area would be condemned and part of it utilized for the construction of streets, schools, and other public facilities. The remainder of the land would be leased or sold to private parties for the purpose of redevelopment, including the construction of low-cost housing. The owner of a department store located in the area challenged the condemnation, pointing out that his store was not itself blighted and arguing that the creation of a “better balanced, more attractive community” was not a valid public use. Id., at 31. Writing for a unanimous Court, Justice Douglas refused to evaluate this claim in isolation, deferring instead to the legislative and agency judgment that the area “must be planned as a whole” for the plan to be successful. Id., at 34. The Court explained that “community redevelopment programs need not, by force of the Constitution, be on a piecemeal basis — lot by lot, building by building.” Id., at 35. The public use underlying the taking was unequivocally affirmed: “We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive.... The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation’s Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.” Id., at 33. In Hawaii Housing Authority v. Midkiff, 467 U. S. 229 (1984), the Court considered a Hawaii statute whereby fee title was taken from lessors and transferred to lessees (for just compensation) in order to reduce the concentration of land ownership. We unanimously upheld the statute and rejected the Ninth Circuit’s view that it was “a naked attempt on the part of the state of Hawaii to take the property of A and transfer it to B solely for B’s private use and benefit.” Id., at 235 (internal quotation marks omitted). Reaffirming Berman’s deferential approach to legislative judgments in this field, we concluded that the State’s purpose of eliminating the “social and economic evils of a land oligopoly” qualified as a valid public use. 467 U. S., at 241-242. Our opinion also rejected the contention that the mere fact that the State immediately transferred the properties to private individuals upon condemnation somehow diminished the public character of the taking. “[I]t is only the taking’s purpose, and not its mechanics,” we explained, that matters in determining public use. Id., at 244. In that same Term we decided another public use case that arose in a purely economic context. In Ruckelskaus v. Monsanto Co., 467 U. S. 986 (1984), the Court dealt with provisions of the Federal Insecticide, Fungicide, and Rodenti-cide Act under which the Environmental Protection Agency could consider the data (including trade secrets) submitted by a prior pesticide applicant in evaluating a subsequent application, so long as the second applicant paid just compensation for the data. We acknowledged that the “most direct beneficiaries” of these provisions were the subsequent applicants, id., at 1014, but we nevertheless upheld the statute under Berman and MidJciff. We found sufficient Congress’ belief that sparing applicants the cost of time-consuming research eliminated a significant barrier to entry in the pesticide market and thereby enhanced competition. 467 U. S., at 1015. Viewed as a whole, our jurisprudence has recognized that the needs of society have varied between different parts of the Nation, just as they have evolved over time in response to changed circumstances. Our earliest cases in particular embodied a strong theme of federalism, emphasizing the “great respect” that we owe to state legislatures and state courts in discerning local public needs. See Hairston v. Danville & Western R. Co., 208 U. S. 598, 606-607 (1908) (noting that these needs were likely to vary depending on a State’s “resources, the capacity of the soil, the relative importance of industries to the general public welfare, and the long-established methods and habits of the people”). For more than a century, our public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power. IV Those who govern the City were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference. The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including — but by no means limited to — new jobs and increased tax revenue. As with other exercises in urban planning and development, the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment. To avoid this result, petitioners urge us to adopt a new bright-line rule that economic development does not qualify as a public use. Putting aside the unpersuasive suggestion that the City’s plan will provide only purely economic benefits, neither precedent nor logic supports petitioners’ proposal. Promoting economic development is a traditional and long-accepted function of government. There is, moreover, no principled way of distinguishing economic development from the other public purposes that we have recognized. In our cases upholding takings that facilitated agriculture and mining, for example, we emphasized the importance of those industries to the welfare of the States in question, see, e. g., Strickley, 200 U. S. 527; in Berman, we endorsed the purpose of transforming a blighted area into a “well-balanced” community through redevelopment, 348 U. S., at 33; in Midkiff, we upheld the interest in breaking up a land oligopoly that “created artificial deterrents to the normal functioning of the State’s residential land market,” 467 U. S., at 242; and in Monsanto, we accepted Congress’ purpose of eliminating a “significant barrier to entry in the pesticide market,” 467 U. S., at 1014-1015. It would be incongruous to hold that the City’s interest in the economic benefits to be derived from the development of the Fort Trumbull area has less of a public character than any of those other interests. Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose. Petitioners contend that using eminent domain for economic development impermissibly blurs the boundary between public and private takings. Again, our cases foreclose this objection. Quite simply, the government’s pursuit of a public purpose will often benefit individual private parties. For example, in Midkiff, the forced transfer of property conferred a direct and significant benefit on those lessees who were previously unable to purchase their homes. In Monsanto, we recognized that the “most direct beneficiaries” of the data-sharing provisions were the subsequent pesticide applicants, but benefiting them in this way was necessary to promoting competition in the pesticide market. 467 U. S., at 1014. The owner of the department store in Berman objected to “taking from one businessman for the benefit of another businessman,” 348 U. S., at 33, referring to the fact that under the redevelopment plan land would be leased or sold to private developers for redevelopment. Our rejection of that contention has particular relevance to the instant case: “The public end may be as well or better served through an agency of private enterprise than through a department of government — or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects.” Id., at 33-34. It is further argued that without a bright-line rule nothing would stop a city from transferring citizen As property to citizen B for the sole reason that citizen B will put the property to a more productive use and thus pay more taxes. Such a one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case. While such an unusual exercise of government power would certainly raise a suspicion that a private purpose was afoot, the hypothetical cases posited by petitioners can be confronted if and when they arise. They do not warrant the crafting of an artificial restriction on the concept of public use. Alternatively, petitioners maintain that for takings of this kind we should require a “reasonable certainty” that the expected public benefits will actually accrue. Such a rule, however, would represent an even greater departure from our precedent. “When the legislature’s purpose is legitimate and its means are not irrational, our cases make clear that empirical debates over the wisdom of takings — no less than debates over the wisdom of other kinds of socioeconomic legislation — are not to be carried out in the federal courts.” Midkiff, 467 U. S., at 242-243. Indeed, earlier this Term we explained why similar practical concerns (among others) undermined the use of the “substantially advances” formula in our regulatory takings doctrine. See Lingle v. Chevron U. S. A. Inc., 544 U. S. 528, 544 (2005) (noting that this formula “would empower — and might often require — courts to substitute their predictive judgments for those of elected legislatures and expert agencies”). The disadvantages of a heightened form of review are especially pronounced in this type of case. Orderly implementation of a comprehensive redevelopment plan obviously requires that the legal rights of all interested parties be established before new construction can be commenced. A constitutional rule that required postponement of the judicial approval of every condemnation until the likelihood of success of the plan had been assured would unquestionably impose a significant impediment to the successful consummation of many such plans. Just as we decline to second-guess the City’s considered judgments about the efficacy of its development plan, we also decline to second-guess the City’s determinations as to what lands it needs to acquire in order to effectuate the project. “It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch.” Berman, 348 U. S., at 35-36. In affirming the City’s authority to take petitioners’ properties, we do not minimize the hardship that condemnations may entail, notwithstanding the payment of just compensation. We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose “public use” requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised. As the submissions of the parties and their amici make clear, the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate. This Court’s authority, however, extends only to determining whether the City’s proposed condemnations are for a “public use” within the meaning of the Fifth Amendment to the Federal Constitution. Because over a century of our ease law interpreting that provision dictates an affirmative answer to that question, we may not grant petitioners the relief that they seek. The judgment of the Supreme Court of Connecticut is affirmed. It is so ordered. “[N]or shall private property be taken for public use, without just compensation.” U. S. Const., Amdt. 5. That Clause is made applicable to the States by the Fourteenth Amendment. See Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897). Various state agencies studied the project’s economic, environmental, and social ramifications. As part of this process, a team of consultants evaluated six alternative development proposals for the area, which varied in extensiveness and emphasis. The Office of Policy and Management, one of the primary state agencies undertaking the review, made findings that the project was consistent with relevant state and municipal development policies. See App. 89-95. In the remainder of the opinion we will differentiate between the City and the NLDC only where necessary. While this litigation was pending before the Superior Court, the NLDC announced that it would lease some of the parcels to private developers in exchange for their agreement to develop the land according to the terms of the development plan. Specifically, the NLDC was negotiating a 99-year ground lease with Corcoran Jennison, a developer selected from a group of applicants. The negotiations contemplated a nominal rent of $1 per year, but no agreement had yet been signed. See 268 Conn. 1, 9, 61, 843 A. 2d 500, 509-510, 540 (2004). See also Calder v. Bull, 3 Dall. 386, 388 (1798) (“An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.... A few instances will suffice to explain what I mean.... [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them” (emphasis deleted)). See 268 Conn., at 159, 843 A. 2d, at 595 (Zarella, J., concurring in part and dissenting in part) (“The record clearly demonstrates that the development plan was not intended to serve the interests of Pfizer, Inc., or any other private entity, but rather, to revitalize the local economy by creating temporary and permanent jobs, generating a significant increase in tax revenue, encouraging spin-off economic activities and maximizing public access to the waterfront”). And while the City intends to transfer certain of the parcels to a private developer in a long-term lease — which developer, in turn, is expected to lease the office space and so forth to other private tenants — -the identities of those private parties were not known when the plan was adopted. It is, of course, difficult to accuse the government of having taken A’s property to benefit the private interests of B when the identity of B was unknown. See, e.g., Dayton Gold & Silver Mining Co. v. Seawell, 11 Nev. 394, 410, 1876 WL 4573, *11 (1876) (“If public occupation and enjoyment of the object for which land is to be condemned furnishes the only and true test for the right of eminent domain, then the legislature would certainly have the constitutional authority to condemn the lands of any private citizen for the purpose of building hotels and theaters. Why not? A hotel is used by the public as much as a railroad. The public have the same right, upon payment of a fixed compensation, to seek rest and refreshment at a public inn as they have to travel upon a railroad”). From upholding the Mill Acts (which authorized manufacturers dependent on power-producing dams to flood upstream lands in exchange for just compensation), to approving takings necessary for the economic development of the West through mining and irrigation, many state courts either circumvented the “use by the public” test when necessary or abandoned it completely. See Nichols, The Meaning of Public Use in the Law of Eminent Domain, 20 B. U. L. Rev. 615, 619-624 (1940) (tracing this development and collecting cases). For example, in rejecting the “use by the public” test as overly restrictive, the Nevada Supreme Court stressed that “[mining is the greatest of the industrial pursuits in this state. All other interests are subservient to it. Our mountains are almost barren of timber, and our valleys could never be made profitable for agricultural purposes except for the fact of a home market having been created by the mining developments in different sections of the state. The mining and milling interests give employment to many men, and the benefits derived from this business are distributed as much, and sometimes more, among the laboring classes than with the owners of the mines and mills.... The present prosperity of the state is entirely due to the mining developments already made, and the entire people of the state are directly interested in having the future developments unobstructed by the obstinate action of any individual or individuals.” Dayton Gold & Silver Mining Co., 11 Nev., at 409-410, 1876 WL, at *11. See also Clark v. Nash, 198 U. S. 361 (1905) (upholding a statute that authorized the owner of arid land to widen a ditch on his neighbor’s property so as to permit a nearby stream to irrigate his land). See, e. g., Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U. S. 30, 32 (1916) (“The inadequacy of use by the general public as a universal test is established”); Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1014-1015 (1984) (“This Court, however, has rejected the notion that a use is a public use only if the property taken is put to use for the general public”). See also Clark, 198 U. S., at 367-368; Strickley v. Highland Boy Gold Mining Co., 200 U. S. 527, 531 (1906) (“In the opinion of the legislature and the Supreme Court of Utah the public welfare of that State demands that aerial lines between the mines upon its mountain sides and railways in the valleys below should not be made impossible by the refusal of a private owner to sell the right to cross his land. The Constitution of the United States does not require us to say that they are wrong”); O’Neill v. Learner, 239 U. S. 244, 253 (1915) (“States may take account of their special exigencies, and when the extent of their arid or wet lands is such that a plan for irrigation or reclamation according to districts may fairly be regarded as one which promotes the public interest, there is nothing in the Federal Constitution which denies to them the right to formulate this policy or to exercise the power of eminent domain in carrying it into effect. With the local situation the state court is peculiarly familiar and its judgment is entitled to the highest respect”). Cf. Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926). It is a misreading of Berman to suggest that the only public use upheld in that case was the initial removal of blight. See Keply Brief for Petitioners 8. The public use described in Berman extended beyond that to encompass the purpose of developing that area to create conditions that would prevent a reversion to blight in the future. See 348 U. S., at 84-35 (“It was not enough, [the experts] believed, to remove existing buildings that were insanitary or unsightly. It was important to redesign the whole area so as to eliminate the conditions that cause slums.... The entire area needed redesigning so that a balanced, integrated plan could be developed for the region, including not only new homes, but also schools, churches, parks, streets, and shopping centers. In this way it was hoped that the cycle of decay of the area could be controlled and the birth of future slums prevented”). Had the public use in Berman been defined more narrowly, it would have been difficult to justify the taking of the plaintiff’s non-blighted department store. Any number of cases illustrate that the achievement of a public good often coincides with the immediate benefiting of private parties. See, e. g., National Railroad Passenger Corporation v. Boston & Maine Corp., 503 U. S. 407, 422 (1992) (public purpose of “facilitating Amtrak’s rail service” served by taking rail track from one private company and transferring it to another private company); Brown v. Legal Foundation of Wash., 538 U. S. 216 (2003) (provision of legal services to the poor is a valid public purpose). It is worth noting that in Hawaii Housing Authority v. Midkiff, 467 U. S. 229 (1984), Monsanto, and Boston & Maine Cory., the property in question retained the same use even after the change of ownership. Notably, as in the instant case, the private developers in Berman were required by contract to use the property to carry out the redevelopment plan. See 348 U. S., at 30. Nor do our eases support Justice O’Connor’s novel theory that the government may only take property and transfer it to private parties when the initial taking eliminates some “harmful property use.” Post, at 501 (dissenting opinion). There was nothing “harmful” about the non-blighted department store at issue in Berman, 348 U. S. 26; see also n. 13, supra; nothing “harmful” about the lands at issue in the mining and agriculture cases, see, e. g., Strickley, 200 U. S. 527; see also nn. 9, 11, supra; and certainly nothing “harmful” about the trade secrets owned by the pesticide manufacturers in Monsanto, 467 U. S. 986. In each case, the public purpose we upheld depended on a private party’s future use of the concededly nonharmful property that was taken. By focusing on a property’s future use, as opposed to its past use, our cases are faithful to the text of the Takings Clause. See U. S. Const., Arndt. 5 (“[N]or shall private property Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

D

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Blackmun delivered the opinion of the Court. This is an appeal from a judgment of the United States Court of Appeals for the Third Circuit reviewing the District Court’s rulings upon a motion for a preliminary injunction. The Court of Appeals held unconstitutional several provisions of Pennsylvania’s current Abortion Control Act, 1982 Pa. Laws, Act No. 138, now codified as 18 Pa. Cons. Stat. § 3201 et seq. (1982). Among the provisions ruled invalid by the Court of Appeals were portions of § 3205, relating to “informed consent”; §3208, concerning “printed information”; §§ 3210(b) and (c), having to do with postviability abortions; and § 3211(a) and §§ 3214(a) and (h), regarding reporting requirements. I The Abortion Control Act was approved by the Governor of the Commonwealth on June 11, 1982. By its own terms, however, see § 7 of the Act, it was to become effective only 180 days thereafter, that is, on the following December 8. It had been offered as an amendment to a pending bill to regulate paramilitary training. The 1982 Act was not the Commonwealth’s first attempt, after this Court’s 1973 decisions in Roe v. Wade, 410 U. S. 113, and Doe v. Bolton, 410 U. S. 179, to impose abortion restraints. The State’s first post-1973 Abortion Control Act, 1974 Pa. Laws, Act No. 209, was passed in 1974 over the Governor’s veto. After extensive litigation, various provisions of the 1974 statute were ruled unconstitutional, including those relating to spousal or parental consent, to the choice of procedure for a postviability abortion, and to the proscription of abortion advertisements. See Planned Parenthood Assn. v. Fitzpatrick, 401 F. Supp. 554 (ED Pa. 1975), summarily aff’d in part sub nom. Franklin v. Fitzgerald, 428 U. S. 901 (1976), and summarily vacated in part and remanded sub nom. Beal v. Franklin, 428 U. S. 901 (1976), modified on remand (No. 74-2440) (ED Pa. 1977), aff’d sub nom. Colautti v. Franklin, 439 U. S. 379 (1979). See also Doe v. Zimmerman, 405 F. Supp. 534 (MD Pa. 1975). In 1978, the Pennsylvania Legislature attempted to restrict access to abortion by limiting medical-assistance funding for the procedure. 2 1978 Pa. Laws, Act No. 16A (pp. 1506-1507) and 1 1978 Pa. Laws, Act No. 148. This effort, too, was successfully challenged in federal court, Roe v. Casey, 464 F. Supp. 487 (ED Pa. 1978), and that judgment was affirmed by the Third Circuit. 623 F. 2d 829 (1980). In 1981, abortion legislation was proposed in the Pennsylvania House as an amendment to a pending Senate bill to outlaw “tough-guy competitions.” The suggested amendment, aimed at limiting abortions, was patterned after a model statute developed by a Chicago-based, nonprofit anti-abortion organization. See Note, Toward Constitutional Abortion Control Legislation: The Pennsylvania Approach, 87 Dick. L. Rev. 373, 382, n. 84 (1983). The bill underwent further change in the legislative process but, when passed, was vetoed by the Governor. See 737 F. 2d 283, 288-289 (CA3 1984). Finally, the 1982 Act was formulated, enacted, and approved. After the passage of the Act, but before its effective date, the present litigation was instituted in the United States District Court for the Eastern District of Pennsylvania. The plaintiffs, who are the appellees here, were the American College of Obstetricians and Gynecologists, Pennsylvania Section; certain physicians licensed in Pennsylvania; clergymen; an individual who purchases from a Pennsylvania insurer health-care and disability insurance extending to abortions; and Pennsylvania abortion counselors and providers. Alleging that the Act violated the United States Constitution, the plaintiffs, pursuant to 42 U. S. C. § 1983, sought declaratory and injunctive relief. The defendants named in the complaint were the Governor of the Commonwealth, other Commonwealth officials, and the District Attorney for Montgomery County, Pa. The plaintiffs promptly filed a motion for a preliminary injunction. Forty-one affidavits accompanied the motion. The defendants, on their part, submitted what the Court of Appeals described as “an equally comprehensive opposing memorandum.” 737 F. 2d, at 289. The District Court then ordered the parties to submit a “stipulation of uncontested facts,” as authorized by local rule. The parties produced a stipulation “solely for purposes of a determination on plaintiffs’ motion for preliminary injunction,” and “without prejudice to any party’s right to controvert any facts or to prove any additional facts at any later proceeding in this action.” App. 9a-10a. Relying substantially on the opinions of the respective Courts of Appeals in Akron Center for Reproductive Health, Inc. v. City of Akron, 651 F. 2d 1198 (CA6 1981), later aff’d in part and rev’d in part, 462 U. S. 416 (1983), and in Planned Parenthood Assn. of Kansas City v. Ashcroft, 655 F. 2d 848 (CA8 1981), later aff’d in part and rev’d in part, 462 U. S. 476 (1983), the District Court concluded that, with one exception, see n. 1, supra, the plaintiffs had failed to establish a likelihood of success on the merits and thus were not entitled to preliminary injunctive relief. 552 F. Supp. 791 (1982). Appellees appealed from the denial of the preliminary injunction, and appellants cross-appealed with respect to the single statutory provision as to which the District Court had allowed relief. The Third Circuit then granted appellees’ motion to enjoin enforcement of the entire Act pending appeal. After expedited briefing and argument, the court withheld judgment pending the anticipated decisions by this Court in Akron, supra, Ashcroft, supra, and Simopoulos v. Commonwealth, 221 Va. 1059, 277 S. E. 2d 194 (1981), all of which had been accepted for review here, had been argued, and were under submission. Those three cases were decided by this Court on June 15, 1983. See Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416; Planned Parenthood Assn. of Kansas City, Missouri, Inc. v. Ashcroft, 462 U. S. 476; Simopoulos v. Virginia, 462 U. S. 506. After reargument in light of those decisions, the Court of Appeals, with one judge concurring in part and dissenting in part, ruled that various provisions of the Act were unconstitutional. 737 F. 2d 283 (1984). Appellants’ petition for rehearing en banc was denied, with four judges voting to grant the petition. Id., at 316, 317. When a jurisdictional statement was filed here, we postponed further consideration of the question of our jurisdiction to the hearing on the merits. 471 U. S. 1014 (1985). II We are confronted initially with the question whether we have appellate jurisdiction in this ease. Appellants purport to have taken their appeal to this Court pursuant to 28 U. S. C. § 1254(2). It seems clear, and the parties appear to agree, see Brief for Appellants 21, that the judgment of the Court of Appeals was not a final judgment in the ordinary meaning of that term. The court did not hold the entire Act unconstitutional, but ruled, instead, that some provisions were invalid under Akron, Ashcroft, and Simopoulos, and that the validity of other provisions might depend on evidence adduced at the trial, see 737 F. 2d, at 299-300, or on procedural rules to be promulgated by the Supreme Court of Pennsylvania, see id., at 296-297. It remanded these features of the case to the District Court. Id., at 304. Slaker v. O’Connor, 278 U. S. 188, 189-190 (1929), and McLish v. Roff 141 U. S. 661, 665-666 (1891), surely suggest that, under these circumstances, we do not have appellate jurisdiction. See also South Carolina Electric & Gas Co. v. Flemming, 351 U. S. 901 (1956). Although the authority of Slaker and South Carolina Electric has been questioned, the Court to date has found it unnecessary to put the issue to rest. See Doran v. Salem Inn, Inc., 422 U. S. 922, 927 (1975); Renton v. Playtime Theatres, Inc., 475 U. S. 41, 43-44, n. 1 (1986). In some cases raising this issue of the scope of appellate jurisdiction, the Court has found any finality requirement to have been satisfied in light of the facts. See, e. g., New Orleans v. Dukes, 427 U. S. 297, 302 (1976); Chicago v. Atchison, T. & S. F. R. Co., 357 U. S. 77, 82-83 (1958). In other cases, the Court has avoided the issue by utilizing 28 U. S. C. §2103 and granting certiorari. See, e. g., Doran, 422 U. S., at 927; El Paso v. Simmons, 379 U. S. 497, 503 (1965); see also Escambia County v. McMillan, 466 U. S. 48, 50, n. 4 (1984). We have concluded that it is time that this undecided issue be resolved. We therefore hold, on the reasoning of McLish v. Roff, 141 U. S., at 665-668, that in a situation such as this one, where the judgment is not final, and where the case is remanded for further development of the facts, we have no appellate jurisdiction under § 1254(2). We nevertheless treat appellants’ jurisdictional statement as a petition for certiorari, grant the writ, and move on to the merits. Ill Appellants assert that the Court of Appeals erred in holding portions of the Act unconstitutional since the scope of its review of the District Court’s denial of a preliminary injunction as to those sections should have been limited to determining whether the trial court abused its discretion in finding the presence or absence of irreparable harm and a probability that the plaintiffs would succeed on the merits. Such limited review normally is appropriate, see Doran v. Salem Inn, Inc., 422 U. S., at 931-932; Brown v. Chote, 411 U. S. 452, 456-457 (1973), inasmuch as the primary purpose of a preliminary injunction is to preserve the relative positions of the parties. See University of Texas v. Camenisch, 451 U. S. 390, 395 (1981). Further, the necessity for an expeditious resolution often means that the injunction is issued on a procedure less stringent than that which prevails at the subsequent trial on the merits of the application for injunctive relief. See United States Steel Corp. v. Fraternal Assn. of Steelhaulers, 431 F. 2d 1046, 1048 (CA3 1970); see also Mayo v. Lakeland Highlands Canning Co., 309 U. S. 310, 316 (1940). This approach, however, is not inflexible. The Court on more than one occasion in this area has approved proceedings deviating from the stated norm. In Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952), the District Court had issued a preliminary injunction restraining the Secretary of Commerce from seizing the Nation’s steel mills. The Court of Appeals stayed the injunction. This Court found that the case was ripe for review, despite the early stage of the litigation, and went on to address the merits. Id., at 585. And in Smith v. Vulcan Iron Works, 165 U. S. 518 (1897), the District Court issued injunctions in two patent cases and referred them to a Master for accounting. The Court of Appeals reversed. This Court ruled that the Court of Appeals had acted properly in deciding the merits since review of interlocutory appeals was designed not only to permit the defendant to obtain immediate relief but also in certain cases to save the parties the expense of further litigation. Id., at 525. The Third Circuit’s decision to address the constitutionality of the Pennsylvania Act finds further support in this Court’s decisions that when the unconstitutionality of the particular state action under challenge is clear, a federal court need not abstain from addressing the constitutional issue pending state-court review. See, e. g., Bailey v. Patterson, 369 U. S. 31, 33 (1962); Turner v. City of Memphis, 369 U. S. 350, 353 (1962); Zwickler v. Koota, 389 U. S. 241, 251, n. 14 (1967). See also Singleton v. Wulff 428 U. S. 106, 121 (1976). See generally Spann, Simple Justice, 73 Geo. L. J. 1041, 1055, n. 77 (1985). Thus, as these cases indicate, if a district court’s ruling rests solely on a premise as to the applicable rule of law, and the facts are established or of no controlling relevance, that ruling may be reviewed even though the appeal is from the entry of a preliminary injunction. The Court of Appeals in this case properly recognized and applied these principles when it observed: “Thus, although this appeal arises from a ruling on a request for a preliminary injunction, we have before us an unusually complete factual and legal presentation from which to address the important constitutional issues at stake. The customary discretion accorded to a District Court’s ruling on a preliminary injunction yields to our plenary scope of review as to the applicable law.” 737 F. 2d, at 290. That a court of appeals ordinarily will limit its review in a case of this kind to abuse of discretion is a rule of orderly judicial administration, not a limit on judicial power. With a full record before it on the issues now before us, and with the intervening decisions in Akron, Ashcroft, and Simopoulos at hand, the Court of Appeals was justified in proceeding to plenary review of those issues. IV This case, as it comes to us, concerns the constitutionality of six provisions of the Pennsylvania Act that the Court of Appeals struck down as facially invalid: §3205 (“informed consent”); §3208 (“printed information”); §§ 3214(a) and (h) (reporting requirements); § 3211(a) (determination of viability); § 3210(b) (degree of care required in postviability abortions); and § 3210(c) (second-physician requirement). We have no reason to address the validity of the other sections of the Act challenged in the District Court. A Less than three years ago, this Court, in Akron, Ashcroft, and Simopoulos, reviewed challenges to state and municipal legislation regulating the performance of abortions. In Akron, the Court specifically reaffirmed Roe v. Wade, 410 U. S. 113 (1973). See 462 U. S., at 420, 426-431. Again today, we reaffirm the general principles laid down in Roe and in Akron. In the years since this Court’s decision in Roe, States and municipalities have adopted a number of measures seemingly designed to prevent a woman, with the advice of her physician, from exercising her freedom of choice. Akron is but one example. But the constitutional principles that led this Court to its decisions in 1973 still provide the compelling reason for recognizing the constitutional dimensions of a woman’s right to decide whether to end her pregnancy. “[I]t should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.” Brown v. Board of Education, 349 U. S. 294, 300 (1955). The States are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies. Appellants claim that the statutory provisions before us today further legitimate compelling interests of the Commonwealth. Close analysis of those provisions, however, shows that they wholly subordinate constitutional privacy interests and concerns with maternal health in an effort to deter a woman from making a decision that, with her physician, is hers to make. B We turn to the challenged statutes: 1. Section 3205 (“informed consent”) and § 3208 (“printed information”). Section 3205(a) requires that the woman give her “voluntary and informed consent” to an abortion. Failure to observe the provisions of § 3205 subjects the physician to suspension or revocation of his license, and subjects any other person obligated to provide information relating to informed consent to criminal penalties. § 3205(c). A requirement that the woman give what is truly a voluntary and informed consent, as a general proposition, is, of course, proper and is surely not unconstitutional. See Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52, 67 (1976). But the State may not require the delivery of information designed “to influence the woman’s informed choice between abortion or childbirth.” Akron, 462 U. S., at 443-444. Appellants refer to the Akron ordinance, Brief for Appellants 67, as did this Court in Akron itself, 462 U. S., at 445, as “a litany of information” and as “ ‘a parade of horribles’ ” of dubious validity plainly designed to influence the woman’s choice. They would distinguish the Akron situation, however, from the Pennsylvania one. Appellants assert that statutes “describing the general subject matter relevant to informed consent,” ibid., and stating “in general terms the information to be disclosed,” id., at 447, are permissible, and they further assert that the Pennsylvania statutes do no more than that. We do not agree. We conclude that, like Akron’s ordinance, §§3205 and 3208 fail the Akron measurement. The two sections prescribe in detail the method for securing “informed consent.” Seven explicit kinds of information must be delivered to the woman at least 24 hours before her consent is given, and five of these must be presented by the woman’s physician. The five are: (a) the name of the physician who will perform the abortion, (b) the “fact that there may be detrimental physical and psychological effects which are not accurately foreseeable,” (c) the “particular medical risks associated with the particular abortion procedure to be employed,” (d) the probable gestational age, and (e) the “medical risks associated with carrying her child to term.” The remaining two categories are (f) the “fact that medical assistance benefits may be available for prenatal care, childbirth and neonatal care,” and (g) the “fact that the father is liable to assist” in the child’s support, “even in instances where the father has offered to pay for the abortion.” § § 3205(a)(1) and (2). The woman also must be informed that materials printed and supplied by the Commonwealth that describe the fetus and that list agencies offering alternatives to abortion are available for her review. If she chooses to review the materials but is unable to read, the materials “shall be read to her,” and any answer she seeks must be “provided her in her own language.” § 3205(a)(2)(iii). She must certify in writing, prior to the abortion, that all this has been done. § 3205(a)(3). The printed materials “shall include the following statement”: “ ‘There are many public and private agencies willing and able to help you to carry your child to term, and to assist you and your child after your child is born, whether you choose to keep your child or place her or him for adoption. The Commonwealth of Pennsylvania strongly urges you to contact them before making a final decision about abortion. The law requires that your physician or his agent give you the opportunity to call agencies like these before you undergo an abortion.’” § 3208(a)(1). The materials must describe the “probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from fertilization to full term, including any relevant information on the possibility of the unborn child’s survival.” § 3208(a)(2). In Akron, this Court noted: “The validity of an informed consent requirement thus rests on the State’s interest in protecting the health of the pregnant woman.” 462 U. S., at 443. The Court went on to state: “This does not mean, however, that a State has unreviewable authority to decide what information a woman must be given before she chooses to have an abortion. It remains primarily the responsibility of the physician to ensure that appropriate information is conveyed to his patient, depending on her particular circumstances. Danforth’s recognition of the State’s interest in ensuring that this information be given will not justify abortion regulations designed to influence the woman’s informed choice between abortion or childbirth.” Id., at 443-444. The informational requirements in the Akron ordinance were invalid for two “equally decisive” reasons. Id., at 445. The first was that “much of the information required is designed not to inform the woman’s consent but rather to persuade her to withhold it altogether.” Id., at 444. The second was that a rigid requirement that a specific body of information be given in all cases, irrespective of the particular needs of the patient, intrudes upon the discretion of the pregnant woman’s physician and thereby imposes the “undesired and uncomfortable straitjacket” with which the Court in Danforth, 428 U. S., at 67, n. 8, was concerned. These two reasons apply with equal and controlling force to the specific and intrusive informational prescriptions of the Pennsylvania statutes. The printed materials required by §§3205 and 3208 seem to us to be nothing less than an outright attempt to wedge the Commonwealth’s message discouraging abortion into the privacy of the informed-consent dialogue between the woman and her physician. The mandated description of fetal characteristics at 2-week intervals, no matter how objective, is plainly over inclusive. This is not medical information that is always relevant to the woman’s decision, and it may serve only to confuse and punish her and to heighten her anxiety, contrary to accepted medical practice. Even the listing of agencies in the printed Pennsylvania form presents serious problems; it contains names of agencies that well may be out of step with the needs of the particular woman and thus places the physician in an awkward position and infringes upon his or her professional responsibilities. Forcing the physician or counselor to present the materials and the list to the woman makes him or her in effect an agent of the State in treating the woman and places his or her imprimatur upon both the materials and the list. See Women’s Medical Center of Providence, Inc. v. Roberts, 530 F. Supp. 1136, 1154 (RI 1982). All this is, or comes close to being, state medicine imposed upon the woman, not the professional medical guidance she seeks, and it officially structures — as it obviously was intended to do— the dialogue between the woman and her physician. The requirements of §§ 3205(a)(2)(i) and (ii) that the woman be advised that medical assistance benefits may be available, and that the father is responsible for financial assistance in the support of the child similarly are poorly disguised elements of discouragement for the abortion decision. Much of this would be nonmedical information beyond the physician’s area of expertise and, for many patients, would be irrelevant and inappropriate. For a patient with a life-threatening pregnancy, the “information” in its very rendition may be cruel as well as destructive of the physician-patient relationship. As any experienced social worker or other counselor knows, theoretical financial responsibility often does not equate with fulfillment. And a victim of rape should not have to hear gratuitous advice that an unidentified perpetrator is liable for support if she continues the pregnancy to term. Under the guise of informed consent, the Act requires the dissemination of information that is not relevant to such consent, and, thus, it advances no legitimate state interest. The requirements of §§3205(a)(l)(ii) and (iii) that the woman be informed by the physician of “detrimental physical and psychological effects” and of all “particular medical risks” compound the problem of medical attendance, increase the patient’s anxiety, and intrude upon the physician’s exercise of proper professional judgment. This type of compelled information is the antithesis of informed consent. That the Commonwealth does not, and surely would not, compel similar disclosure of every possible peril of necessary surgery or of simple vaccination, reveals the anti-abortion character of the statute and its real purpose. Pennsylvania, like Akron, “has gone far beyond merely describing the general subject matter relevant to informed consent.” Akron, 462 U. S., at 445. In addition, the Commonwealth would require the physician to recite its litany “regardless of whether in his judgment the information is relevant to [the patient’s] personal decision.” Ibid. These statutory defects cannot be saved by any facts that might be forthcoming at a subsequent hearing. Section 3205’s informational requirements therefore are facially unconstitutional. Appellants assert, however, that even if this be so, the remedy is to allow the remainder of § 3205 to be severed and become effective. We rule otherwise. The radical dissection necessary for this would leave § 3205 with little resemblance to that intended by the Pennsylvania Legislature. We rejected a similar suggestion as to the ordinance in Akron, 462 U.S, at 445, n. 37, despite the presence there of a broad severability clause. We reach the same conclusion here, where no such clause is present, and reject the plea for severance. See Carter v. Carter Coal Co., 298 U. S. 238, 312-313 (1936). 2. Sections 3214(a) and (h) (reporting) and § 3211(a) (determination of viability). Section 3214(a)(8), part of the general reporting section, incorporates § 3211(a). Section 3211(a) requires the physician to report the basis for his determination “that a child is not viable.” It applies only after the first trimester. The report required by §§ 3214(a) and (h) is detailed and must include, among other things, identification of the performing and referring physicians and of the facility or agency; information as to the woman’s political subdivision and State of residence, age, race, marital status, and number of prior pregnancies; the date of her last menstrual period and the probable gestational age; the basis for any judgment that a medical emergency existed; the basis for any determination of nonviability; and the method of payment for the abortion. The report is to be signed by the attending physician. § 3214(b). Despite the fact that § 3214(e)(2) provides that such reports “shall not be deemed public records,” within the meaning of the Commonwealth’s “Right-to-Know Law,” Pa. Stat. Ann., Tit. 65, §66.1 et seq. (Purdon 1959 and Supp. 1985), each report “shall be made available for public inspection and copying within 15 days of receipt in a form which will not lead to the disclosure of the identity of any person filing a report.” Similarly, the report of complications, required by § 3214(h), “shall be open to public inspection and copying.” A willful failure to file a report required under §3214 is “unprofessional conduct” and the noncomplying physician’s license “shall be subject to suspension or revocation.” §3214(i)(l). The scope of the information required and its availability to the public belie any assertions by the Commonwealth that it is advancing any legitimate interest. In Planned Parent hood of Central Missouri. v. Danforth, 428 U. S., at 80, we recognized that recordkeeping and reporting provisions “that are reasonably directed to the preservation of maternal health and that properly respect a patient’s confidentiality and privacy are permissible.” But the reports required under the Act before us today go well beyond the health-related interests that served to justify the Missouri reports under consideration in Danforth. Pennsylvania would require, as Missouri did not, information as to method of payment, as to the woman’s personal history, and as to the bases for medical judgments. The Missouri reports were to be used “only for statistical purposes.” See id., at 87. They were to be maintained in confidence, with the sole exception of public health officers. In Akron, the Court explained its holding in Danforth when it said: “The decisive factor was that the State met its burden of demonstrating that these regulations furthered important health-related state concerns.” 462 U. S., at 430. The required Pennsylvania reports, on the other hand, while claimed not to be “public,” are available nonetheless to the public for copying. Moreover, there is no limitation on the use to which the Commonwealth or the public copiers may put them. The elements that proved persuasive for the ruling in Danforth are absent here. The decision to terminate a pregnancy is an intensely private one that must be protected in a way that assures anonymity. Justice Stevens, in his opinion concurring in the judgment in Bellotti v. Baird, 443 U. S. 622 (1979), aptly observed: “It is inherent in the right to make the abortion decision that the right may be exercised without public scrutiny and in defiance of the contrary opinion of the sovereign or other third parties.” Id., at 655. A woman and her physician will necessarily be more reluctant to choose an abortion if there exists a possibility that her decision and her identity will become known publicly. Although the statute does not specifically require the reporting of the woman’s name, the amount of information about her and the circumstances under which she had an abortion are so detailed that identification is likely. Identification is the obvious purpose of these extreme reporting requirements. The “impermissible limits” that Danforth mentioned and that Missouri approached, see 428 U. S., at 81, have been exceeded here. We note, as we reach this conclusion, that the Court consistently has refused to allow government to chill the exercise of constitutional rights by requiring disclosure of protected, but sometimes unpopular, activities. See, e. g., Lamont v. Postmaster General, 381 U. S. 301 (1965) (invalidating Post Office requirement that addressee affirmatively request delivery of “communist” materials in order to receive them); Talley v. California, 362 U. S. 60, 64-65 (1960) (striking down municipal ban on unsigned handbills); NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 462-465 (1958) (invalidating compelled disclosure of NAACP membership list). Pennsylvania’s reporting requirements raise the specter of public exposure and harassment of women who choose to exercise their personal, intensely private, right, with their physician, to end a pregnancy. Thus, they pose an unacceptable danger of deterring the exercise of that right, and must be invalidated. 3. Section 3210(b) (degree of care for postviability abortions) and § 3210(c) (second-physician requirement when the fetus is possibly viable). Section 3210(b) sets forth two independent requirements for a postviability abortion. First, it demands the exercise of that degree of care “which such person would be required to exercise in order to preserve the life and health of any unborn child intended to be born and not aborted.” Second, “the abortion technique employed shall be that which would provide the best opportunity for the unborn child to be aborted alive unless,” in the physician’s good-faith judgment, that technique “would present a significantly greater medical risk to the life or health of the pregnant woman.” An intentional, knowing, or reckless violation of this standard is a felony of the third degree, and subjects the violator to the possibility of imprisonment for not more than seven years and to a fine of not more than $15,000. See 18 Pa. Cons. Stat. §§1101(2) and 1103(3) (1982). The Court of Appeals ruled that § 3210(b) was unconstitutional because it required a “trade-off” between the woman’s health and fetal survival, and failed to require that maternal health be the physician’s paramount consideration. 737 F. 2d, at 300, citing Colautti v. Franklin, 439 U. S. 379, 397-401 (1979) (where Pennsylvania’s 1974 Abortion Control Act was reviewed). In Colautti, this Court recognized the undesirability of any “ ‘trade-off’ between the woman’s health and additional percentage points of fetal survival.” Id., at 400. Appellants do not take any real issue with this proposition. See Brief for Appellants 84-86. They argue instead, as did the District Court, see 552 F. Supp., at 806-807, that the statute’s words “significantly greater medical risk” for the life or health of the woman do not mean some additional risk (in which case unconstitutionality apparently is conceded) but only a “meaningfully increased” risk. That interpretation, said the District Court, renders the statute constitutional. Id., at 807. The Court of Appeals disagreed, pointing out that such a reading is inconsistent with the statutory language and with the legislative intent reflected in that language; that the adverb “significantly” modifies the risk imposed on the woman; that the adverb is “patently not surplusage”; and that the language of the statute “is not susceptible to a construction that does not require the mother to bear an increased medical risk in order to save her viable fetus.” 737 F. 2d, at 300. We agree with the Court of Appeals and therefore find the statute to be facially invalid. Section 3210(c) requires that a second physician be present during an abortion performed when viability is possible. The second physician is to “take control of the child and... provide immediate medical care for the child, taking all reasonable steps necessary, in his judgment, to preserve the child’s life and health.” Violation of this requirement is a felony of the third degree. In Planned Parenthood Assn. of Kansas City, Missouri, Inc. v. Ashcroft, 462 U. S. 476 (1983), the Court, by a 5-4 vote, but not by a controlling single opinion, ruled that a Missouri statute requiring the presence of a second physician during an abortion performed after viability was constitutional. Justice Powell, joined by The Chief Justice, concluded that the State had a compelling interest in protecting the life of a viable fetus and that the second physician’s presence provided assurance that the State’s interest was protected more fully than with only one physician in attendance. Id., at 482-486. Justice Powell recognized that, to pass constitutional muster, the statute must contain an exception for the situation where the health of the mother was endangered by delay in the arrival of the second physician. Recogn Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

E

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Brennan delivered the opinion of the Court. The United States filed this action in 1949 in the District Court for the Northern District of Illinois. The complaint alleged that the ownership and use by appellee E. I. du Pont de Nemours & Co. of approximately 23 percent of the voting common stock of appellee General Motors Corporation was a violation of sections 1 and 2 of the Sherman Act, 15 U. S. C. §§ 1, 2, and of section 7 of the Clayton Act, 15 U. S. C. § 18. After trial, the District Court dismissed the complaint. 126 F. Supp. 235 (D. C. N. D. Ill. 1954). On the Government’s appeal, we reversed. We held that du Pont’s acquisition of the 23 percent of General Motors stock had led to the insulation from free competition of most of the General Motors market in automobile finishes and fabrics, with the resultant likelihood, at the time of suit, of the creation of a monopoly of a line of commerce, and, accordingly, that du Pont had violated § 7 of the Clayton Act. United States v. E. I. du Pont de Nemours & Co., 353 U. S. 586 (1957). We did not, however, determine what equitable relief was necessary in the public interest. Instead, we observed that “[t]he District Courts... are clothed 'with large discretion to model their judgments to fit the exigencies of the particular case.’ International Salt Co. v. United States, 332 U. S. 392, 400-401,” and remanded the cause to the District Court “for a determination, after further hearing, of the equitable relief necessary and appropriate in the public interest to eliminate the effects of the acquisition offensive to the statute.” 353 U. S., at 607-608. On remand, the District Court invited the Government to submit a plan of relief which in its opinion would be effective to remedy the violation. The court also appointed two amici curiae to represent the interests of General Motors and du Pont shareholders, respectively, most of whom, of course, had not been made parties to this litigation. The Government submitted a proposed plan of relief. That plan included diverse forms of injunctive relief, but its principal feature was a requirement that within 10 years the du Pont company completely divest itself of its approximately 63 million General Motors shares. The Government proposed that about two-thirds of these shares be distributed pro rata to the generality of du Pont shareholders in the form of dividends over the 10-year period. The other one-third of du Pont’s General Motors holdings — stock which would have gone to appellées Christiana Securities Company and Delaware Realty and Investment Company, holding companies long identified with the du Pont family itself — were to go to a court-appointed trustee, to be sold gradually over the same 10-year period. Du Pont objected that the Government’s plan of complete divestiture entailed harsh income-tax consequences for du Pont stockholders and, if adopted, would also threaten seriously to depress the market value of du Pont and General Motors stock. Du Pont therefore proposed its own plan designed to avoid these results. The salient feature of its plan was substitution for the Government’s proposed complete divestiture of a plan for partial divestiture in the form of a so-called “pass through” of voting rights, whereby du Pont would retain all attributes of ownership of the General Motors stock, including the right to receive dividends and a share of assets on liquidation, except the right to vote. The vote was to be “passed through” to du. Pont’s shareholders proportionally to their holdings of du Pont’s own shares, except that Christiana and Delaware would “pass through” the votes allocable to them to their own shareholders. The amici curiae also proposed plans of compliance, substantially equivalent to the du Pont plan. The amicus representing the generality of du Pont shareholders proposed in addition a program of so-called “take-downs,” by which du Pont shareholders would be allowed to exchange their du Pont common stock for a new class of du Pont “Special Common,” plus their pro rata share of du Pont-held General Motors common stock. The District Court held several weeks of hearings. The evidence taken at the hearings, largely of expert witnesses, fills some 3,000 pages in the record before us, and, together with the numerous financial charts and tables received as exhibits, bears mainly not on the competition-restoring effect of the several proposals, but rather on which proposal would have the more, and which the less, serious tax and market consequences for the owners of the du Pont and General Motors stock. The District Court concluded that although “... there is no need for the Court to resolve the conflict in the evidence as to how severe those consequences would be[, t]he Court is persuaded beyond any doubt that a judgment of the kind proposed by the Government would have very serious adverse consequences.” 177 F. Supp. 1, 42 (D. C. N. D. Ill. 1959). The court for this reason rejected the Government’s plan and adopted the du Pont proposal, with some significant modifications. The “pass through” of voting rights, for example, was so limited that neither Christiana, Delaware, nor their officers and directors (plus resident members of the latter’s families), should be able to vote any of the du Pont-held General Motors stock; General Motors shares allocable to the two companies or to their officers and directors, or to the officers and directors of du Pont, or to resident members of the families of the officers and directors of the several companies, were to be sterilized, voted by no one. Du Pont, Christiana, and Delaware were forbidden to acquire any additional General Motors stock. Du Pont and General Motors might not have any preferential or discriminatory trade relations or contracts with each other. No officer or director of du Pont, Christiana, or Delaware might also serve as an officer or director of General Motors. Nor might du Pont, Christiana, or Delaware nominate or propose any person to be a General Motors officer or director, or seek in any way to influence the choice of persons to fill those posts. The Government objected that without a provision ordering complete divestiture the decree, although otherwise satisfactory, was inadequate to redress the antitrust violation, and filed its appeal here under § 2 of the Expediting Act, 15 U. S. C. § 29. We noted probable jurisdiction. 362 U. S. 986 (1960). A threshold question — and one which, although subsidiary, is most important — concerns the scope of our review of the District Court’s discharge of the duty delegated by our judgment to formulate a decree. In our former opinion we alluded to the “large discretion” of the District Courts in matters of remedy in antitrust cases. Many opinions of the Court in such cases observe that “[t]he formulation of decrees is largely left to the discretion of the trial court...,” Maryland & Virginia Milk Producers Assn. v. United States, 362 U. S. 458, 473 (1960); “[i]n framing relief in antitrust cases, a range of discretion rests with the trial judge,” Besser Mfg. Co. v. United States, 343 U. S. 444, 449 (1952); “[t]he determination of the scope of the decree to accomplish its purpose is peculiarly the responsibility of the trial court,” United States v. United States Gypsum Co., 340 U. S. 76, 89 (1950); “[t]he framing of decrees should take place in the District rather than in Appellate Courts,” International Salt Co. v. United States, 332 U. S. 392, 400 (1947). The Court has on occasion said that decrees will be upheld in the absence of a showing of an abuse of discretion. See, e. g., Maryland & Virginia Milk Producers Assn. v. United States, supra, p. 473; United States v. W. T. Grant Co., 345 U. S. 629, 634 (1953); Timken Roller Bearing Co. v. United States, 341 U. S. 593 (1951); United States v. National Lead Co., 332 U. S. 319, 334-335 (1947); United States v. Crescent Amusement Co., 323 U. S. 173, 185 (1944). These expressions are not, however, to be understood to imply a narrow review here of the remedies fashioned by the District Courts in antitrust cases. On the contrary, our practice, particularly in cases of a direct appeal from the decree of a single judge, is to examine the District Court’s action closely to satisfy ourselves that the relief is effective to redress the antitrust violation proved. “The relief granted by a trial court in an antitrust case and brought here on direct appeal, thus by-passing the usual appellate review, has always had the most careful scrutiny of this Court. Though the records are usually most voluminous and their review exceedingly burdensome, we have painstakingly undertaken it to make certain that justice has been done.” International Boxing Club v. United States, 358 U. S. 242, 253 (1959); see also id., at 263 (dissenting opinion). We have made it clear that a decree formulated by a District Court is not “subject only to reversal for gross abuse. Rather we have felt an obligation to intervene in this most significant phase of the case when we concluded there were inappropriate provisions in the decree.” United States v. United States Gypsum Co., supra, p. 89. In sum, we assign to the District Courts the responsibility initially to fashion the remedy, but recognize that while we accord due regard and respect to the conclusion of the District Court, we have a duty ourselves to be sure that a decree is fashioned which will effectively redress proved violations of the antitrust laws. The proper disposition of antitrust cases is obviously of great public importance, and their remedial phase, more often than not, is crucial. For the suit has been a futile exercise if the Government proves a violation but fails to secure a remedy adequate to redress it. “A public interest served by such civil suits is that they effectively pry open to competition a market that has been closed by defendants’ illegal restraints. If this decree accomplishes less than that, the Government has won a lawsuit and lost a cause.” International Salt Co. v. United States, supra, p. 401. Our practice reflects the situation created by the congressional authorization, under § 2 of the Expediting Act, of a direct appeal to this Court from the judgment of relief fashioned by a single judge. Congress has deliberately taken away the shield of intermediate appellate review by a Court of Appeals, and left with us alone the responsibility of affording the parties a review of his determination. This circumstance imposes a special burden upon us, for, as Mr. Justice Roberts said for the Court,.. it is unthinkable that Congress has entrusted the enforcement of a statute of such far-reaching importance to the judgment of a single judge, without review of the relief granted or denied by him,” Hartford-Empire Co. v. United States, 324 U. S. 570, 571 (1945), clarifying 323 U. S. 386 (1945). These principles alone would require our close examination of the District Court’s action. But the necessity for that examination in this case further appears in the light of additional considerations. First of all, the decree was fashioned in obedience to the judgment which we sent down to the District Court after our reversal of that court’s dismissal of the Government’s complaint. We have plenary power to determine whether our judgment was scrupulously and fully carried out. Chief Justice Taft, speaking for the Court, said in Continental Ins. Co. v. United States, 259 U. S. 156, 166 (1922), “We delegated to the District Court the duty of formulating a decree in compliance with the principles announced in our judgment of reversal, and that gives us plenary power where the compliance has been attempted and the decree in any proper way is brought to our attention to see that it follows our opinion.” Secondly, the record is concerned mainly with the alleged adverse tax and market effects of the Government’s proposal for complete divestiture. But the primary focus of inquiry, as we shall show, is upon the question of the relief required effectively to eliminate the tendency of the acquisition condemned by § 7. For it will be remembered that the violation was not actual monopoly but only a tendency towards monopoly. The required relief therefore is a remedy which reasonably assures the elimination of that tendency. Does partial divestiture in the form of the “pass through” of voting power, together with the ancillary relief, give an effective remedy, or is complete divestiture necessary to assure effective relief? Little in the record or in the District Court’s opinion is concerned with that crucial question. The findings of possible harsh consequences relied upon to justify rejection of complete divestiture are thus hardly of material assistance in reaching judgment on the central issue. If our examination persuades us that the remedy decreed leaves the public interest in the elimination of the tendency inadequately protected, we should be derelict in our duty if we did not correct the error. Before we examine the adequacy of the relief allowed by the District Court, it is appropriate to review some general considerations concerning that most drastic, but most effective, of antitrust remedies — divestiture. The key to the whole question of an antitrust remedy is of course the discovery of measures effective to restore competition. Courts' are not authorized in civil proceedings to punish antitrust violators, and relief must not be punitive. But courts are authorized, indeed required, to decree relief effective to redress the violations, whatever the adverse effect of such a decree on private interests. Divestiture is itself an equitable remedy designed to protect the public interest. In United States v. Crescent Amusement Co., supra, where we sustained divestiture provisions against an attack similar to that successfully made below, we said, at p. 189: “It is said that these provisions are inequitable and harsh income tax wise, that they exceed any reasonable requirement for the prevention of future violations, and that they are therefore punitive.... Those who violate the Act may not reap the benefits of their violations and avoid an undoing of their unlawful project on the plea of hardship or inconvenience.” If the Court concludes that other measures will not be effective to redress a violation, and that complete divestiture is a necessary element of effective relief, the Government • cannot be denied the latter remedy because economic hardship, however severe, may result. Economic hardship can influence choice only as among two or more effective remedies. If the remedy chosen is not effective, it will not be saved because an effective remedy would entail harsh consequences. This proposition is not novel; it is deeply rooted in antitrust law and has never been successfully challenged. The criteria were announced in one of the earliest cases. In United States v. American Tobacco Co., 221 U. S. 106, 185 (1911), we said: “In considering the subject... three dominant influences must guide our action: 1. The duty of giving complete and efficacious effect to the prohibitions of the statute; 2, the accomplishing of this result with as little injury as possible to the interest of the general public; and, 3, a proper regard for the vast interests of private property which may have become vested in many persons as a result of the acquisition either by way of stock ownership or otherwise of interests in the stock or securities of the combination without any guilty knowledge or intent in any way to become actors or participants in the wrongs which we find to have inspired and dominated the combination from the beginning.” The Court concluded in that case that, despite the alleged hardship which would be involved, only dissolution of the combination would be effective, and therefore ordered dissolution. Plainly, if the relief is not effective, there is no occasion to consider the third criterion. Thus, in this case, the adverse tax and market consequences which the District Court found would be concomitants of complete divestiture cannot save the remedy of partial divestiture through the “pass through” of voting rights if, though less harsh, partial divestiture is not an effective remedy. We do not think that the “pass through” is an effective remedy and believe that the Government is entitled to a decree directing complete divestiture. It cannot be gainsaid that complete divestiture is peculiarly appropriate in cases of stock acquisitions which violate § 7. That statute is specific and “narrowly directed,” Standard Oil Co. v. United States, 337 U. S. 293, 312 (1949), and it outlaws a particular form of economic control—stock acquisitions which tend to create a monopoly of any line of commerce. The very words of § 7 suggest that an undoing of the acquisition is a natural remedy. Divestiture or dissolution has traditionally been the remedy for Sherman Act violations whose heart is intercorporate combination and control, and it is reasonable to think immediately of the same remedy when § 7 of the Clayton Act, which particularizes the Sherman Act standard of illegality, is involved. Of the very few litigated § 7 cases which have been reported, most decreed divestiture as a matter of course. Divestiture has been called the most important of antitrust remedies. It is simple, relatively easy to administer, and sure. It should always be in the forefront of a court’s mind when a violation of § 7 has been found. The divestiture only of voting rights does not seem to us to be a remedy adequate to promise elimination of the tendency of du Pont’s acquisition offensive to § 7. Under the decree, two-thirds of du Pont’s holdings of General Motors stock will be voted by du Pont shareholders— upwards of 40 million shares. Common sense tells us that under this arrangement there can be little assurance of the dissolution of the intercorporate community of interest which we found to violate the law. The du Pont shareholders will ipso facto also be General Motors voters. It will be in their interest to vote in such a way as to induce General Motors to favor du Pont, the very result which we found illegal on the first appeal. It may be true, as appellees insist, that these shareholders will not exercise as much influence on General Motors as did du Pont when it held and voted the shares as a block. And it is true that there is no showing in this record that the du Pont shareholders will combine to vote together, or that their information about General Motors’ activities will be detailed enough to enable them to vote their shares as strategically as'du Pont itself has done. But these arguments misconceive the nature of this proceeding. The burden is not on the Government to show de novo that a “pass through” of the General Motors vote, like du Pont’s ownership of General Motors stock, would violate § 7. United States v. Aluminum Co. of America, 91 F. Supp. 333, 346 (D. C. S. D. N. Y. 1950). It need only appear that the decree entered leaves a substantial likelihood that the tendency towards monopoly of the acquisition condemned by § 7 has not been satisfactorily eliminated. We are not required to assume, contrary to all human experience, that du Pont’s shareholders will not vote in their own self-interest. Moreover, the General Motors management, which over the years has become accustomed to du Pont’s special relationship, would know that the relationship continues to a substantial degree, and might well act accordingly. The same is true of du Pont’s competitors. They might not try so vigorously to break du Pont’s hold on General Motors’ business, as if complete divestiture were ordered. And finally, the influence of the du Pont company itself would not be completely dissipated. For under the decree du Pont would have the power to sell its General Motors shares; the District Court expressly held that “[t]here would be nothing in the decree to prevent such dispositions.” 177 F. Supp., at 41. Such a sale would presumably restore the vote separated from the sold stock while du Pont owned it. This power to transfer the vote could conceivably be used to induce General Motors to favor du Pont products. In sum, the “pass through” of the vote does not promise elimination of the violation offensive to § 7. What was said of the Sherman Act in United States v. Union Pacific R. Co., 226 U. S. 470, 477 (1913), applies here: “So far as is consistent with this purpose a court of equity dealing with such combinations should conserve the property interests involved, but never in such wise as to sacrifice the object and purpose of the statute. The decree of the courts must be faithfully executed and no form of dissolution be permitted that in substance or effect amounts to restoring the combination which it was the purpose of the decree to terminate.” Du Pont replies, inter alia, that it would be willing for all of its General Motors stock to be disenfranchised, if that would satisfy the requirement for effective relief. This suggestion, not presented to the District Court, is distinctly an afterthought. If the suggestion is disenfranchisement only while du Pont retains the stock, it would not avoid the hazards inherent in du Pont’s power to transfer the vote. If the suggestion is permanent loss of the vote, it would create a large and permanent separation of corporate ownership from control, which would not only run directly counter to accepted principles of corporate democracy, but also reduce substantially the number of voting General Motors shares, thereby making it easier for the owner of a block of shares far below an absolute majority to obtain working control, perhaps creating new antitrust problems for both General Motors and the Department of Justice in the future. And finally, we should be reluctant to effect such a drastic change in General Motors’ capital structure, established under state corporation law. Appellees argue further that the injunctive provisions of the decree supplementary to the “pass through” of voting rights adequately remove any objections to the effectiveness of the “pass through.” Du Pont is enjoined, for example, from in any way influencing the choice of General Motors’ officers and directors, and from entering into any preferential trade relations with General Motors. And, under ¶ IX of the decree, the Government may reapply in the future should this injunctive relief prove inadequate. Presumably this provision could be used to prevent the exercise of the power to transfer the vote. But the public interest should not in this case be required to depend upon the often cumbersome and time-consuming injunctive remedy. Should a violation of one of the prohibitions be thought to occur, the Government would have the burden of initiating contempt proceedings and of proving by a preponderance of the evidence that a violation had indeed been committed. Such a remedy would, judging from the history of this litigation, take years to obtain. Moreover, an injunction can hardly be detailed enough to cover in advance all the many fashions in which improper influence might manifest itself. And the policing of an injunction would probably involve the courts and the Government in regulation of private affairs more deeply than the administration of a simple order of divestiture. We think the public is entitled to the surer, cleaner remedy of divestiture. The same result would follow even if we were in doubt. For it is well settled that once the Government has successfully borne the considerable burden of establishing a violation of law, all doubts as to the remedy are to be resolved in its favor. We therefore direct complete divestiture. Since the District Court’s decree was framed around the provision directing only partial divestiture, and since General Motors, Christiana, and Delaware acquiesced in its provisions only on that basis, we shall not pass upon the provisions for ancillary relief but shall vacate the decree in its entirety except as to the provisions of fl"VT enjoining du Pont itself from exercising voting rights in respect of its General Motors stock. In this way the District Court will be free to fashion a new decree consistent with this opinion at a new hearing at which all parties may be heard. General Motors, Christiana, and Delaware will thus be able to renew, for the District Court’s decision in the first instance, any objections they may have to the power of the Court to grant relief against them. We believe, however, that this already protracted litigation should be concluded as soon as possible. To that end we direct the District Court on receipt of our judgment to enter an order requiring du Pont to file within 60 days a proposed judgment providing for complete divestiture of its General Motors stock, to commence within 90 days, and to be completed within not to exceed 10 years, of the effective date of the District Court’s judgment, and requiring the Government to file, within 30 days after service upon it of du Pont’s proposed judgment, either proposed specific amendments to such du Pont judgment or a proposed alternate judgment of divestiture. The District Court shall give precedence to this cause on its calendar. The judgment of the District Court, except to the extent ¶ VI is affirmed, is vacated and remanded for further proceedings consistent with this opinion. It is so ordered. Mr. Justice Clark and Mr. Justice Harlan took no part in the consideration or decision of this case. Since a holding that the Clayton Act had been violated sufficed to dispose of the case, we did not decide whether du Pont had also violated the Sherman Act. See 353 U. S., at 588, note 5. In this case, however, a majority of the Court substantially modified the District Court’s decree, in spite of expressions of deference written into the principal opinion. In Crescent Amusement the Court relied in part on the fact that the district judge had initially found the violation of law. This circumstance was said to enhance the deference owed to the district judge’s determination of the measures appropriate to eliminate the violation, 323 U. S., at 185. This factor is not present in the case before us. 32 Stat. 823, as amended, 15 U. S. C. § 29. The purpose of this statute was to expedite determination of antitrust cases by allowing the Attorney General to obtain a special Circuit (now District) Court of several judges by filing a certificate of public importance under § 1 of the Act, 32 Stat. 823, as amended, 15 U. S. C. § 28 (no such certificate was filed in this case), and by providing for direct appeal to the Supreme Court from the decree of the trial court, whether composed of one or several judges, such appeal to be within this Court’s obligatory jurisdiction. Congress was moved by the “far-reaching importance of the cases arising under [the] antitrust laws....” 36 Cong. Rec. 1679 (remarks of Senator Fairbanks, Feb. 4, 1903). See also H. R. Rep. No. 3020, 57th Cong., 2d Sess. 2 (1903). In one case this elimination of the normal review by the Court of Appeals almost prevented there being any review of the District Court at all. See United States v. Aluminum Co. of America, 320 U. S. 708 (1943) (noting the absence of a quorum in this Court to hear an Expediting Act appeal from a District Court). But Congress acted to keep such an important matter from going unreviewed, see H. R. Rep. No. 1317, 78th Cong., 2d Sess. (1944), and enacted a special statute, 58 Stat. 272, 15 U. S. C. § 29, pursuant to which this Court immediately certified the case to a Circuit Court of Appeals, 322 U. S. 716 (1944), which proceeded to decide the appeal. 148 F. 2d 416 (C. A. 2d Cir. 1945). See also United States v. United States District Court, 334 U. S. 258 (1948). Government counsel at the trial advised the District Court that he had no authority to suggest modes of divestiture different from the plan presented by the Government to the District Court. Appellees suggest that the Government is thus estopped from urging other modes of divestiture on this appeal. But plainly, under the rule of Continental Insurance, no stipulation by the Government could circumscribe this Court’s power to see that its mandate is carried out. Bills were introduced in the Eighty-sixth Congress to ameliorate the income-tax consequences of gain on disposition of stock pursuant to orders enforcing the antitrust laws. See Hearings on S. 200 before the Senate Committee on Finance, 86th Cong., 1st Sess. (1959); Hearings on H. R. 8126 before the House Committee on Ways and Means, 86th Cong., 1st Sess. (1959); H. R. Rep. No. 1128, 86th Cong., 1st Sess. (1959). See, e. g., United States v. Crescent Amusement Co., 323 U. S. 173, 189 (1944); United States v. Corn Products Refining Co., 234 F. 964, 1018 (D. C. S. D. N. Y. 1916), appeal dismissed on motion of appellant, 249 U. S. 621 (1919); United States v. E. I. du Pont de Nemours & Co., 188 F. 127, 153 (C. C. D. Del. 1911), modified, 273 F. 869 (D. C. D. Del. 1921); In re Crown Zellerbach Corp., CCH Trade Reg. Rep. 1957-1958 ¶ 26,923, at p. 36,462 (F. T. C. 1958). We reject the Government’s argument that the Federal Trade Commission and other administrative agencies charged with the duty of enforcing the statute are required by § 11 of the Clayton Act to order divestiture whenever they find a violation of § 7, and that therefore courts acting under § 15 must give the same relief. Even if the administrative agencies were so limited, a question which we do not decide, Congress would not be deemed to have restricted the broad remedial powers of courts of equity without explicit language doing so in terms, or some other strong indication of intent. Hecht Co. v. Bowles, 321 U. S. 321, 329 (1944). The words were actually used of § 3 of the Clayton Act, but they are equally applicable to § 7. See Northern Securities Co. v. United States, 193 U. S. 197 (1904); Standard Oil Co. v. United States, 221 U. S. 1 (1911); United States v. American Tobacco Co., 221 U. S. 106 (1911); United States v. Union Pacific R. Co., 226 U. S. 61 (1912), modified, 226 U. S. 470 (1913); United States v. Reading Co., 226 U. S. 324 (1912), modified, 228 U. S. 158 (1913); United States v. Reading Co., 253 U. S. 26 (1920), modified after remand, Continental Ins. Co. v. United States, 259 U. S. 156 (1922); United States v. Lehigh Valley R. Co., 254 U. S. 255 (1920); United States v. Southern Pacific Co., 259 U. S. 214 (1922); United States v. Crescent Amusement Co., 323 U. S. 173 (1944); Hartford-Empire Co. v. United States, 323 U. S. 386 (1945), clarified, 324 U. S. 570 (1945); United States v. National Lead Co., 332 U. S. 319 (1947); Schine Chain Theatres, Inc., v. United States, 334 U. S. 110 (1948); United States v. Paramount Pictures, Inc., 334 U. S. 131 (1948); Besser Mfg. Co. v. United States, 343 U. S. 444 (1952); International Boxing Club v. United States, 358 U. S. 242 (1959); United States v. E. I. du Pont de Nemours & Co., 188 F. 127 (C. C. D. Del. 1911), modified, 273 F. 869 (D. C. D. Del. 1921); United States v. Lake Shore & M. S. R. Co., 203 F. 295 (D. C. S. D. Ohio 1912), modified, 281 F. 1007 (D. C. S. D. Ohio 1916); United States v. International Harvester Co., 214 F. 987 (D. C. D. Minn. 1914), modification denied, 10 F. 2d 827 (D. C. D. Minn. 1926), aff’d, 274 U. S. 693 (1927); United States v. Eastman Kodak Co., 226 F. 62 (D. C. W. D. N. Y. 1915), decree entered, 230 F. 522 (D. C. W. D. N. Y. 1916), appeal dismissed on motion of appellant, 255 U. S. 578 (1921); United States v. Corn Products Refining Co., 234 F. 964 (D. C. S. D. N. Y. 1916), appeal dismissed on motion of appellant, 249 U. S. 621 (1919); United States v. Minnesota Mining & Mfg. Co., 92 F. Supp. 947 (D. C. D. Mass. 1950), modified, 96 F. Supp. 356 (D. C. D. Mass. 1951); United States v. Imperial Chemical Indus., Ltd., 100 F. Supp. 504 (D. C. S. D. N. Y. 1951), decree entered, 105 F. Supp. 215 (D. C. S. D. N. Y. 1952). In many of these cases the courts referred to “dissolution” or “divorcement” instead of “divestiture.” These terms have traditionally been treated as to a large degree interchangeable, and we so regard them. See Hale and Hale, Market Power: Size and Shape Under the Sherman Act 370 (1958); Adams, Dissolution, Divorcement, Divestiture: the Pyrrhic Victories of Antitrust, 27 Ind. L. J. 1, note 1 (1951). Appellees rely on several Clayton Act consent decrees granting relief short of divestiture, but the circumstances surrounding such negotiated agreements are so different that they cannot be persuasively cited in a litigation context. See, e. g., Maryland & Virginia Milk Producers Assn. v. United States, 362 U. S. 458 (1960); Aluminum Co. of America v. Federal Trade Comm’n, 284 F. 401 (C. A. 3d Cir. 1922), cert. denied, 261 U. S. 616 (1923), modification denied, 299 F. 361 (C. A. 3d Cir. 1924). United States v. New England Fish Exchange, 258 F. 732 (D. C. D. Mass. 1919), modification denied, 292 F. 511 (D. C. D. Mass. 1923), on which appellees place great reliance, is not a clear exception. It is Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice White delivered the opinion of the Court. By virtue of the First and Fourteenth Amendments, neither the Federal nor a State Government may make any law “abridging the freedom of speech, or of the press....” The question here is whether those Amendments should be construed to provide further protection for the press when sued for defamation than has hitherto been recognized. More specifically, we are urged to hold for the first time that when a member of the press is alleged to have circulated damaging falsehoods and is sued for injury to the plaintiff's reputation, the plaintiff is barred from inquiring into the editorial processes of those responsible for the publication, even though the inquiry would produce evidence material to the proof of a critical element of his cause of action. I Petitioner, Anthony Herbert, is a retired Army officer who had extended wartime service in Vietnam and who received widespread media attention in 1969-1970 when he accused his superior officers of covering up reports of atrocities and other war crimes. Three years later, on February 4, 1973, respondent Columbia Broadcasting System, Inc. (CBS), broadcast a report on petitioner and his accusations. The program was produced and edited by respondent Barry Lando and was narrated by respondent Mike Wallace. Lando later published a related article in Atlantic Monthly magazine. Herbert then sued Lando, Wallace, CBS, and Atlantic Monthly for defamation in Federal District Court, basing jurisdiction on diversity of citizenship. In his complaint, Herbert alleged that the program and article falsely and maliciously portrayed him as a liar and a person who had made war-crimes charges to explain his relief from command, and he requested substantial damages for injury to his reputation and to the literary value of a book he had just published recounting his experiences. Although his cause of action arose under New York State defamation law, Herbert conceded that because he was a “public figure” the First and Fourteenth Amendments precluded recovery absent proof that respondents had published a damaging falsehood “with 'actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” This was the holding of New York Times Co. v. Sullivan, 376 U. S. 254, 280 (1964), with respect to alleged libels of public officials, and extended to “public figures” by Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967). Under this rule, absent knowing falsehood, liability requires proof of reckless disregard for truth, that is, that the defendant “in fact entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U. S. 727, 731 (1968). Such “subjective awareness of probable falsity,” Gertz v. Robert Welch, Inc., 418 U. S. 323, 335 n. 6 (1974), may be found if “there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” St. Amant v. Thompson, supra, at 732. In preparing to prove his case in light of these requirements, Herbert deposed Lando at length and sought an order to compel answers to a variety of questions to which response was refused on the ground that the First Amendment protected against inquiry into the state of mind of those who edit, produce, or publish, and into the editorial process. Applying the standard of Fed. Rule Civ. Proc. 26 (b), which permits discovery of any matter “relevant to the subject matter involved in the pending action” if it would either be admissible in evidence or “appears reasonably calculated to lead to the discovery of admissible evidence,” the District Court ruled that because the defendant’s state of mind was of “central importance” to the issue of malice in the case, it was obvious that the questions were relevant and “entirely appropriate to Herbert’s efforts to discover whether Lando had any reason to doubt the veracity of certain of his sources, or, equally significant, to prefer the veracity of one source over another.” 73 F. R. D. 387, 395, 396 (SDNY 1977). The District Court rejected the claim of constitutional privilege because it found nothing in the First Amendment or the relevant cases to permit or require it to increase the weight of the injured plaintiff’s already heavy burden of proof by in effect creating barriers “behind which malicious publication may go undetected and unpunished.” Id., at 394. The case was then certified for an interlocutory appeal under 28 U. S. C. § 1292 (b), and the Court of Appeals agreed to hear the case. A divided panel reversed the District Court. 568 F. 2d 974 (CA2 1977). Two judges, writing separate but overlapping opinions, concluded that the First Amendment lent sufficient protection to the editorial processes to protect Lando from inquiry about his thoughts, opinions, and conclusions with respect to the material gathered by him and about his conversations with his editorial colleagues. The privilege not to answer was held to be absolute. We granted certiorari because of the importance of the issue involved. 435 U. S. 922 (1978). We have concluded that the Court of Appeals misconstrued the First and Fourteenth Amendments and accordingly reverse its judgment. II Civil and criminal liability for defamation was well established in the common law when the First Amendment was adopted, and there is no indication that the Framers intended to abolish such liability. Until New York Times, the prevailing jurisprudence was that “[l]ibelous utterances [are not] within the area of constitutionally protected speech....” Beauharnais v. Illinois, 343 U. S. 250, 266 (1952); see also Roth v. United States, 354 U. S. 476, 482-483 (1957); Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942) ; Near v. Minnesota ex rel. Olson, 283 U. S. 697, 707-708 (1931). The accepted view was that neither civil nor criminal liability for defamatory publications abridges freedom of speech or freedom of the press, and a majority of jurisdictions made publishers liable civilly for their defamatory publications regardless of their intent. New York Times and Butts effected major changes in the standards applicable to civil libel actions. Under these cases public officials and public figures who sue for defamation must prove knowing or reckless falsehood in order to establish liability. Later, in Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), the Court held that nonpublic figures must demonstrate some fault on the defendant’s part and, at least where knowing or reckless untruth is not shown, some proof of actual injury to the plaintiff before liability may be imposed and damages awarded. These cases rested primarily on the conviction that the common law of libel gave insufficient protection to the First Amendment guarantees of freedom of speech and freedom of press and that to avoid self-censorship it was essential that liability for damages be conditioned on the specified showing of culpable conduct by those who publish damaging falsehood. Given the required proof, however, damages liability for defamation abridges neither freedom of speech nor freedom of the press. Nor did these cases suggest any First Amendment restriction on the sources from which the plaintiff could obtain the necessary evidence to prove the critical elements of his cause of action. On the contrary, New York Times and its progeny made it essential to proving liability that the plaintiff focus on the conduct and state of mind of the defendant. To be liable, the alleged defamer of public officials or of public figures must know or have reason to suspect that his publication is false. In other cases proof of some kind of fault, negligence perhaps, is essential to recovery. Inevitably, unless liability is to be completely foreclosed, the thoughts and editorial processes of the alleged defamer would be open to examination. It is also untenable to conclude from our cases that, although proof of the necessary state of mind could be in the form of objective circumstances from which the ultimate fact could be inferred, plaintiffs may not inquire directly from the defendants whether they knew or had reason to suspect that their damaging publication was in error. In Butts, for example, it is evident from the record that the editorial process had been subjected to close examination and that direct as well as indirect evidence was relied on to prove that the defendant magazine had acted with actual malice. The damages verdict was sustained without any suggestion that plaintiff's proof had trenched upon forbidden areas. Reliance upon such state-of-mind evidence is by no means a recent development arising from New York Times and similar cases. Rather, it is deeply rooted in the common-law rule, predating the First Amendment, that a showing of malice on the part of the defendant permitted plaintiffs to recover punitive or enhanced damages. In Butts, the Court affirmed the substantial award of punitive damages which in Georgia were conditioned upon a showing of “wanton or reckless indifference or culpable negligence” or “ ‘ill will, spite, hatred and an intent to injure 388 U. S., at 165-166. Neither Mr. Justice Harlan, id., at 156-162, nor Mr. Chief Justice Warren, concurring, id,., at 165-168, raised any question as to the propriety of having the award turn on such a showing or as to the propriety of the underlying evidence, which plainly included direct evidence going to the state of mind of the publisher and its responsible agents. Furthermore, long before New York Times was decided, certain qualified privileges had developed to protect a publisher from liability for libel unless the publication was made with malice. Malice was defined in numerous ways, but in general depended upon a showing that the defendant acted with improper motive. This showing in turn hinged upon the intent or purpose with which the publication was made, the belief of the defendant in the truth of his statement, or upon the ill will which the defendant might have borne toward the plaintiff. Courts have traditionally admitted any direct or indirect evidence relevant to. the state of mind of the defendant and necessary to defeat a conditional privilege or enhance damages. The rules are applicable to the press and to other defendants alike/ and it is evident that the courts across the country have long been accepting evidence going to the editorial processes of the media without encountering constitutional objections. In the face of this history, old and new, the Court of Appeals nevertheless declared that two of this Court’s cases had announced unequivocal protection for the editorial process. In each of these cases, Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), and Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94 (1973), we invalidated governmental efforts to pre-empt editorial decision by requiring the publication of specified material. In Columbia Broadcasting System, it was the requirement that a television network air paid political advertisements and in Tornillo, a newspaper’s obligation to print a political candidate’s reply to press criticism. Insofar as the laws at issue in Tornillo and Columbia Broadcasting System sought to control in advance the content of the publication, they were deemed as invalid as were prior efforts to enjoin publication of specified materials. But holdings that neither a State nor the Federal Government may dictate what must or must not be printed neither expressly nor impliedly suggest that the editorial process is immune from any inquiry whatsoever. It is incredible to believe that the Court in Columbia Broadcasting System or in Tornillo silently effected a substantial contraction of the rights preserved to defamation plaintiffs in Sullivan, Butts, and like cases. Tornillo and Gertz v. Robert Welch, Inc., were announced on the same day; and although the Court’s opinion in Gertz contained an overview of recent developments in the relationship between the First Amendment and the law of libel, there was no hint that a companion case had narrowed the evidence available to a defamation plaintiff. Quite the opposite inference is to be drawn from the Gertz opinion, since it, like prior First Amendment libel cases, recited without criticism the facts of record indicating that the state of mind of the editor had been placed at issue. Nor did the Gertz opinion, in requiring proof of some degree of fault on the part of the defendant editor and in forbidding punitive damages absent at least reckless disregard of truth or falsity, suggest that the First Amendment also foreclosed direct inquiry into these critical elements. In sum, contrary to the views of the Court of Appeals, according an absolute privilege to the editorial process of a media defendant in a libel case is not required, authorized, or presaged by our prior cases, and would substantially enhance the burden of proving actual malice, contrary to the expectations of New York Times, Butts, and similar cases. Ill It is nevertheless urged by respondents that the balance struck in New York Times should now be modified to provide further protections for the press when sued for circulating erroneous information damaging to individual reputation. It is not uncommon or improper, of course, to suggest the abandonment, modification, or refinement of existing constitutional interpretation, and notable developments in First Amendment jurisprudence have evolved from just such submissions. But in the 15 years since New York Times, the doctrine announced by that case, which represented a major development and which was widely perceived as essentially protective of press freedoms, has been repeatedly affirmed as the appropriate First Amendment standard applicable in libel actions brought by public officials and public figures. Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967); St. Amant v. Thompson, 390 U. S. 727 (1968); Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974); Time, Inc. v. Firestone, 424 U. S. 448 (1976). At the same time, however, the Court has reiterated its conviction — reflected in the laws of defamation of all of the States— that the individual’s interest in his reputation is also a basic concern. Id., at 455-457; Gertz v. Robert Welch, Inc., supra, at 348-349. We are thus being asked to modify firmly established constitutional doctrine by placing beyond the plaintiff’s reach a range of direct evidence relevant to proving knowing or reckless falsehood by the publisher of an alleged libel, elements that are critical to plaintiffs such as Herbert. The case for making this modification is by no means clear and convincing, and we decline to accept it. In the first place, it is plain enough that the suggested privilege for the editorial process would constitute a substantial interference with the ability of a defamation plaintiff to establish the ingredients of malice as required by New York Times. As respondents would have it, the defendant’s reckless disregard of the truth, a critical element, could not be shown by direct evidence through inquiry into the thoughts, opinions, and conclusions of the publisher, but could be proved only by objective evidence from which the ultimate fact could be inferred. It may be that plaintiffs will rarely be successful in proving awareness of falsehood from the mouth of the defendant himself, but the relevance of answers to such inquiries, which the District Court recognized and the Court of Appeals did not deny, can hardly be doubted. To erect an impenetrable barrier to the plaintiff’s use of such evidence on his side of the case is a matter of some substance, particularly when defendants themselves are prone to assert their good-faith belief in the truth of their publications, and libel plaintiffs are required to prove knowing or reckless falsehood with “convincing clarity.” New York Times Co. v. Sullivan, 376 U. S., at 285-286. Furthermore, the outer boundaries of the editorial privilege now urged are difficult to perceive. The opinions below did not state, and respondents do not explain, precisely when the editorial process begins and when it ends. Moreover, although we are told that respondent Lando was willing to testify as to what he “knew” and what he had “learned” from his interviews, as opposed to what he “believed,” it is not at all clear why the suggested editorial privilege would not cover knowledge as well as belief about the veracity of published reports. It is worth noting here that the privilege as asserted by respondents would also immunize from inquiry the internal communications occurring during the editorial process and thus place beyond reach what the defendant participants learned or knew as the result of such collegiate conversations or exchanges. If damaging admissions to colleagues are to be barred from evidence, would a reporter’s admissions made to third parties not participating in the editorial process also be immune from inquiry? We thus have little doubt that Herbert and other defamation plaintiffs have important interests at stake in opposing the creation of the asserted privilege. Nevertheless, we are urged by respondents to override these important interests because requiring disclosure of editorial conversations and of a reporter’s conclusions about the veracity of the material he has gathered will have an intolerable chilling effect on the editorial process and editorial decision-making. But if the claimed inhibition flows from the fear of damages liability for publishing knowing or reckless falsehoods, those effects are precisely what New York Times and other cases have held to be consistent with the First Amendment. Spreading false information in and of itself carries no First Amendment credentials. “ [T]here is no constitutional value in false statements of fact.” Gertz v. Robert Welch, Inc., supra, at 340. Realistically, however, some error is inevitable; and the difficulties of separating fact from fiction convinced the Court in New York Times, Butts, Gertz, and similar cases to limit liability to instances where some degree of culpability is present in order to eliminate the risk of undue self-censorship and the suppression of truthful material. Those who publish defamatory falsehoods with the requisite culpability, however, are subject to liability, the aim being not only to compensate for injury but also to deter publication of unprotected material threatening injury to individual reputation. Permitting plaintiffs such as Herbert to prove their cases by direct as well as indirect evidence is consistent with the balance struck by our prior decisions. If such proof results in liability for damages which in turn discourages the publication of erroneous information known to be false or probably false, this is no more than what our cases contemplate and does not abridge either freedom of speech or of the press. Of course, if inquiry into editorial conclusions threatens the suppression not only of information known or strongly suspected to be unreliable but also of truthful information, the issue would be quite different. But as we have said, our cases necessarily contemplate examination of the editorial process to prove the necessary awareness of probable falsehood, and if indirect proof of this element does not stifle truthful publication and is consistent with the First Amendment, as respondents seem to concede, we do not understand how direct inquiry with respect to the ultimate issue would be substantially more suspect. Perhaps such examination will lead to liability that would not have been found without it, but this does not suggest that the determinations in these instances will be inaccurate and will lead to the suppression of protected information. On the contrary, direct inquiry from the actors, which affords the opportunity to refute inferences that might otherwise be drawn from circumstantial evidence, suggests that more accurate results will be obtained by placing all, rather than part, of the evidence before the decisionmaker. Suppose, for example, that a reporter has two contradictory reports about the plaintiff, one of which is false and damaging, and only the false one is published. In resolving the issue whether the publication was known or suspected to be false, it is only common sense to believe that inquiry from the author, with an opportunity to explain, will contribute to accuracy. If the publication is false but there is an exonerating explanation, the defendant will surely testify to this effect. Why should not the plaintiff be permitted to inquire before trial? On the other hand, if the publisher in fact had serious doubts about accuracy, but published nevertheless, no undue self-censorship will result from permitting the relevant inquiry. Only knowing or reckless error will be discouraged; and unless there is to be an absolute First Amendment privilege to inflict injury by knowing or reckless conduct, which respondents do not suggest, constitutional values will not be threatened. It is also urged that frank discussion among reporters and editors will be dampened and sound editorial judgment endangered if such exchanges, oral or written, are subject to inquiry by defamation plaintiffs. We do not doubt the direct relationship between consultation and discussion on the one hand and sound decisions on the other; but whether or not there is liability for the injury, the press has an obvious interest in avoiding the infliction of harm by the publication of false information, and it is not unreasonable to expect the media to invoke whatever procedures may be practicable and useful to that end. Moreover, given exposure to liability when there is knowing or reckless error, there is even more reason to resort to prepublication precautions, such as a frank interchange of fact and opinion. Accordingly, we find it difficult to believe that error-avoiding procedures will be terminated or stifled simply because there is liability for culpable error and because the editorial process will itself be examined in the tiny percentage of instances in which error is claimed and litigation ensues. Nor is there sound reason to believe that editorial exchanges and the editorial process are so subject to distortion and to such recurring misunderstanding that they should be immune from examination in order to avoid erroneous judgments in defamation suits. The evidentiary burden Herbert must carry to prove at least reckless disregard for the truth is substantial indeed, and we are unconvinced that his chances of winning an undeserved verdict are such that an inquiry into what Lando learned or said during the editorial process must be foreclosed. This is not to say that the editorial discussions or exchanges have no constitutional protection from casual inquiry. There is no law that subjects the editorial process to private or official examination merely to satisfy curiosity or to serve some general end such as the public interest; and if there were, it would not survive constitutional scrutiny as the First Amendment is presently construed. No such problem exists here, however, where there is a specific claim of injury arising from a publication that is alleged to have been knowingly or recklessly false. Evidentiary privileges in litigation are not favored, and even those rooted in the Constitution must give way in proper circumstances. The President, for example, does not have an absolute privilege against disclosure of materials subpoenaed for a judicial proceeding. United States v. Nixon, 418 U. S. 683 (1974). In so holding, we found that although the President has a powerful interest in confidentiality of communications between himself and his advisers, that interest must yield to a demonstrated specific need for evidence. As we stated, in referring to existing limited privileges against disclosure, “[w]hatever their origins, these exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.” Id., at 710. With these considerations in mind, we conclude that the present construction of the First Amendment should not be modified by creating the evidentiary privilege which the respondents now urge. IV Although defamation litigation, including suits against the press, is an ancient phenomenon, it is true that our cases from New York Times to Gertz have considerably changed the profile of such cases. In years gone by, plaintiffs made out a prima facie case by proving the damaging publication. Truth and privilege were defenses. Intent, motive, and malice were not necessarily involved except to counter qualified privilege or to prove exemplary damages. The plaintiff’s burden is now considerably expanded. In every or almost every case, the plaintiff must focus on the editorial process and prove a false publication attended by some degree of culpability on the part of the publisher. If plaintiffs in consequence now resort to more discovery, it would not be surprising; and it would follow that the costs and other burdens of this kind of litigation would escalate and become much more troublesome for both plaintiffs and defendants. It is suggested that the press needs constitutional protection from these burdens if it is to perform its task, which is indispensable in a system such as ours. Creating a constitutional privilege foreclosing direct inquiry into the editorial process, however, would not cure this problem for the press. Only complete immunity from liability for defamation would effect this result, and the Court has regularly found this to be an untenable construction of the First Amendment. Furthermore, mushrooming litigation costs, much of it due to pretrial discovery, are not peculiar to the libel and slander area. There have been repeated expressions of concern about undue and uncontrolled discovery, and voices from this Court have joined the chorus. But until and unless there are major changes in the present Rules of Civil Procedure, reliance must be had on what in fact and in law are ample powers of the district judge to prevent abuse. The Court has more than once declared that the deposition-discovery rules are to be accorded a broad and liberal treatment to effect their purpose of adequately informing the litigants in civil trials. Schlagenhauf v. Holder, 379 U. S. 104, 114-115 (1964); Hickman v. Taylor, 329 U. S. 495, 501, 507 (1947). But the discovery provisions, like all of the Federal Rules of Civil Procedure, are subject to the injunction of Rule 1 that they “be construed to secure the just, speedy, and inexpensive determination of every action.” (Emphasis added.) To this end, the requirement of Rule 26 (b) (1) that the material sought in discovery be “relevant” should be firmly applied, and the district courts should not neglect their power to restrict discovery where “justice requires [protection for] a party or person from annoyance, embarrassment, oppression, or undue burden or expense....” Rule 26 (c). With this authority at hand, judges should not hesitate to exercise appropriate control over the discovery process. Whether, as a nonconstitutional matter, however, the trial judge properly applied the rules of discovery was not within the boundaries of the question certified under 28 U. S. C. § 1292 (b) and accordingly is not before us. The judgment of the Court of Appeals is reversed. So ordered. Criminal libel prosecutions are subject to the same constitutional limitations. Garrison v. Louisiana, 379 U. S. 64 (1964). The Court of Appeals summarized the inquiries to which Lando objected as follows: “1. Lando’s conclusions during his research and investigations regarding people or leads to be pursued, or not to be pursued, in connection with the ‘60 Minutes’ segment and the Atlantic Monthly article; "2. Lando’s conclusions about facts imparted by interviewees and his state of mind with respect to the veracity of persons interviewed; “3. The basis for conclusions where Lando testified that he did reach a conclusion concerning the veracity of persons, information or events; “4. Conversations between Lando and Wallace about matter to be included or excluded from the broadcast publication; and “5. Lando’s intentions as manifested by his decision to include or exclude certain material.” 568 F. 2d 974, 983 (CA2 1977). Respondents’ petition for leave to appeal from an interlocutory order, which was granted, stated the issue on appeal as follows: “What effect should be given to the First Amendment protection of the press with respect to its exercise of editorial judgment in pre-trial discovery in a libel case governed by New York Times Co. v. Sullivan, 376 U. S. 254 (1964)?” See, e. g., Restatement of Torts §580 (1938); Pedrick, Freedom of the Press and the Law of Libel: The Modern Revised Translation, 49 Corn. L. Q. 581, 583-584 (1964); Developments in the Law — Defamation, 69 Harv. L. Rev. 875, 902-910 (1956). In Peck v. Tribune Co., 214 U. S. 185, 189 (1909), Mr. Justice Holmes summarized the prevailing view of strict liability in the course of reviewing a libel judgment rendered in a federal diversity of citizenship action: “There was some suggestion that the defendant published the portrait by mistake, and without knowledge that it was the plaintiff’s portrait or was not what it purported to be. But the fact, if it was one, was no excuse. If the publication was libellous the defendant took the risk. As was said of such matters by Lord Mansfield, ‘Whatever a man publishes he publishes at his peril.' The King v. Woodfall, Lofft 776, 781.... The reason is plain. A libel is harmful on its face. If a man sees fit to publish manifestly hurtful statements concerning an individual, without other justification than exists for an advertisement or a piece of news, the usual principles of tort will make him liable, if the statements are false or are true only of some one else.” The definition of fault was to be the responsibility of state laws. Gertz v. Robert Welch, Inc., 418 U. S. 323, 347 (1974). See 388 U. S., at 156-169, where Mr. Justice Harlan, writing for a plurality of the Court, reviewed the record under the standard he preferred to apply to public figures, and upheld the verdict for the plaintiff. Mr. Chief Justice Warren independently reviewed the record under the “actual malice” standard of New York Times and also concluded in his concurring opinion that the verdict should be upheld. Id., at 168-170. The evidence relied on and summarized in both opinions included substantial amounts of testimony that would fall within the editorial-process privilege as defined by respondents. The record before the Court included depositions by the author of the defamatory article, an individual paid to assist the author in preparation, the sports editor of the Saturday Evening Post, and both its managing editor and editor in chief. These depositions revealed the Saturday Evening Post’s motives in publishing the story (Record, O. T. 1966, No. 37, pp. 706-717), sources {id., at 364, 662-664, 719-720, 729), conversations among the editors and author concerning the research and development of the article {id., at 363-367, 721-737), decisions and reasons relating to who should be interviewed and what should be investigated {id., at 666-667, 699-700, 734-736, 772-774), conclusions as to the importance and veracity of sources and information presented in the article {id., at 720, 732-735, 737, 771-772, 776), and conclusions about the impact that publishing the article would have on the subject {id., at 714^-716, 770). Mr. Justice BreNNAN, writing for himself and Mr. Justice White, also thought the evidence of record sufficient to satisfy the New York Times malice standard. It is quite unlikely that the Court would have arrived at the result it did had it believed that inquiry into the editorial processes was constitutionally forbidden. The Court engaged in similar analysis of the record in reversing the judgments entered in a companion case to Butts, Associated Press v. Walker, 388 U. S., at 158-159; id., at 165 (Warren, C. J., concurring); and in Time, Inc. v. Hill, 385 U. S. 374, 391-394 (1967). In Hill, the record included the edited drafts of the allegedly libelous article and an examination and cross-examination of the author. During that examination, the writer explained in detail the preparation of the article, his thoughts, conclusions, and beliefs regarding the material, and a line-by-line analysis of the article with explanations of how and why additions and deletions were made to the various drafts. As in Butts, the editorial process was the focus of much of the evidence, and direct inquiry was made into the state of mind of the media defendants. Yet the Court raised no question as to the propriety of the proof. A. Hanson, Libel and Related Torts ¶ 163 (1969); Developments in the Law — Defamation, supra n. 4, at 938; 50 Am. Jur. 2d, Libel and Slander § 352 (1970); 53 C. J. S., Libel and Slander § 260 (1955). The Restatement originally provided in a separate section for the award of punitive damages for malicious defamations. Restatement of Torts § 1068 (Tent. Draft 13, 1936) : “One who is liable for harm to another’s reputation caused by the publication of a libel or slander is also liable for punitive damages if the defamatory matter was published with knowledge of its falsity or if it was published in reckless indifference to its truth or falsity or solely for the purpose of causing harm to the plaintiff’s reputation or other legally protected interest.” The provision was later omitted with the explanation that recovery of punitive damages would be determined by the rules in the Restatement with respect to damages in general. Restatement of Torts § 1068 (Proposed Final Draft 3, 1937). Gertz v. Robert Welch, Inc., supra, at 350, limited the entitlement to punitive damages, but such damages are still awardable upon a showing of knowing or reckless falsehood. As Mr. Justice Harlan noted, the jury had been instructed in considering punitive damages to assess “ ‘the reliability, the nature of the sources of the defendant’s information, its acceptance or rejection of the sources, and its care in checking upon assertions.’ ” 388 U. S., at 156 (emphasis added). The Justice found nothing amiss either with the instruction or the result the jury reached under it. Mr. Justice BreNNAN, dissenting in the Butts case, id., at 172-174, analyzed the instructions differently but raised no question as to the constitutionality of turning the award of either compensatory or punitive damages upon direct as well as circumstantial evidence going to the mental state of the defendant. See n. 6, supra. See Nalle v. Oyster, 230 U. S. 165, 179-180 (1913); White v. Nicholls, 3 How. 266, 286-292 (1845); T. Plucknett, A Concise History of the Common Law 502 (5th ed. 1956); Hallen, Character of Belief Necessary for the Conditional Privilege in Defamation, 25 Ill. L. Rev. 865 (1931). In White v. Nicholls, supra, at 290-291, the Court surveyed the common law and summarized the privilege as follows: “We have thus taken a view of the authorities which treat of the doctrines of slander and libel, and have considered those authorities particularly with reference to the distinction they establish between ordinary instances of slander, written and unwritten, and those which have been styled privileged communications; the peculiar character of which is said to exempt them from inferences which the law has created with respect to those cases that do not partake of that character. Our examination, extended as it may seem to have been, has been called for by the importance of a subject most intimately connected with the rights and happiness of individuals, as it is with the quiet and good order of society. The investigation has conducted us to the following conclusions, which we propound as the law applicable thereto. 1. That every publication, either by writing, printing, or pictures, which charges upon or imputes to any person that which renders him liable to punishment, or which is calculated to make him infamous, or odious, or ridiculous, is prima jade a libel, and implies malice in the author and publisher towards the person concerning whom such publication is made. Proof of malice, therefore, in the cases just described, can never be required of the party complaining beyond the proof of the publication itself: justification, excuse, or extenuation, if either can be shown, must proceed from the defendant. 2. That the description of cases recognised as privileged communications, must be understood as exceptions to this rule, and as being founded upon some apparently recognised obligation or motive, legal, moral, or social, which may fairly be presumed to have led to the publication, and therefore prima facie relieves it from that just implication from which the general rule of the law is deduced. The rule of evidence, as to such cases, is accordingly so far changed as Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

C

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Souter delivered the opinion of the Court. Section 101(a) of the Telecommunications Act of 1996, 110 Stat. 70, 47 U. S. C. § 253, authorizes preemption of state and local laws and regulations expressly or effectively “prohibiting the ability of any entity” to provide telecommunications services. The question is whether the class of entities in-eludes the State’s own subdivisions, so as to affect the power of States and localities to restrict their own (or their political inferiors’) delivery of such services. We hold it does not. I In 1997, the General Assembly of Missouri enacted the statute codified as §392.410(7) of the State’s Revised Statutes: “No political subdivision of this state shall provide or offer for sale, either to the public or to a telecommunications provider, a telecommunications service or telecommunications facility used to provide a telecommunications service for which a certificate of service authority is required pursuant to this section.” On July 8, 1998, the municipal respondents, including municipalities, municipal organizations, and municipally owned utilities, petitioned the Federal Communications Commission (FCC or Commission) for an order declaring the state statute unlawful and preempted under 47 U. S. C. § 253: “No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” § 253(a). “If, after notice and an opportunity for public comment, the Commission determines that a State or local government has permitted or imposed any statute, regulation, or legal requirement that violates subsection (a) or (b) of this section, the Commission shall preempt the enforcement of such statute, regulation, or legal requirement to the extent necessary to correct such violation or inconsistency.” § 253(d). After notice and comment, the FCC refused to declare the Missouri statute preempted, In re Missouri Municipal League, 16 FCC Rcd. 1157 (2001), relying on its own earlier order resolving a challenge to a comparable Texas law, In re Public Utility Comm’n of Texas, 13 FCC Rcd. 3460 (1997), as well as the affirming opinion of the United States Court of Appeals for the District of Columbia Circuit, Abilene v. FCC, 164 F. 3d 49 (1999). The agency concluded that “the term ‘any entity’ in section 253(a) . . . was not intended to include political subdivisions of the state, but rather appears to prohibit restrictions on market entry that apply to independent entities subject to state regulation.” 16 FCC Rcd., at 1162. Like the District of Columbia Circuit in Abilene, the FCC also adverted to the principle of Gregory v. Ashcroft, 501 U. S. 452 (1991), that Congress needs to be clear before it constrains traditional state authority to order its government. 16 FCC Rcd., at 1169. But at the same time the Commission rejected preemption, it also denounced the policy behind the Missouri statute, id., at 1162-1163, and the Commission’s order carried two appended statements (one by Chairman William E. Kennard and Commissioner Gloria Tristani, id., at 1172, and one by Commissioner Susan Ness, id., at 1173) to the effect that barring municipalities from providing telecommunications substantially disserved the policy behind the Telecommunications Act. The municipal respondents appealed to the Eighth Circuit, where a panel unanimously reversed the agency disposition, 299 F. 3d 949 (2002), with the explanation that the plain-vanilla “entity,” especially when modified by “any,” manifested sufficiently clear congressional attention to governmental entities to get past Gregory. 299 F. 3d, at 953-955. The decision put the Eighth Circuit at odds with the District of Columbia Circuit’s Abilene opinion, and we granted certiorari to resolve the conflict. 539 U. S. 941 (2003). We now reverse. II At the outset, it is well to put aside two considerations that appear in this litigation but fall short of supporting the municipal respondents’ hopes for prevailing on their generous conception of preemption under § 253. The first is public policy, on which the respondents have at the least a respectable position, that fencing governmental entities out of the telecommunications business flouts the public interest. There are, of course, arguments on the other side, against government participation: in a business substantially regulated at the state level, regulation can turn into a public provider’s weapon against private competitors, see, e. g., Brief for Petitioner Southwestern Bell Telephone, L. P., in No. 02-1405 et al., pp. 17-18; and (if things turn out bad) government utilities that fail leave the taxpayers with the bills: Still, the Chairman of the FCC and Commissioner Tristani minced no words in saying that participation of municipally owned entities in the telecommunications business would “further the goal of the 1996 Act to bring the benefits of competition to all Americans, particularly those who live in small or rural communities in which municipally-owned utilities have great competitive potential.” 16 FCC Red., at 1172. Commissioner Ness said much the same, and a number of amicus briefs in this litigation argue the competitive advantages of letting municipalities furnish telecommunications services, drawing on the role of government operators in extending the electric power lines early in the last century. Brief for City of Abilene, Texas, et al. as Amici Curiae 14-18; Brief for Consumer Federation of America as Amicus Curiae 7. As we will try to explain, however, infra, at 133-138, it does not follow that preempting state or local barriers to governmental entry into the market would be an effective way to draw municipalities into the business, and in any event the issue here does not turn on the merits of municipal telecommunications services. The second consideration that fails to answer the question posed in this litigation is the portion of the text that has received great emphasis. The Eighth Circuit trained its analysis on the words “any entity,” left undefined by the statute, with much weight being placed on the modifier “any.” But concentration on the writing on the page does not produce a persuasive answer here. While an “entity” can be either public or private, compare, e. g., 42 U. S. C. § 9604(k)(l) (2000 ed., Supp. I) (defining “eligible entity” as a state or local government body or its agent) with 26 U. S. C. §269B(c)(l) (defining “entity” as “any corporation, partnership, trust, association, estate, or other form of carrying on a business or activity”), there is no convention of omitting the modifiers “public and private” when both are meant to be covered. See, e. g., 42 U. S. C. § 2000d-7(a)(2) (exposing States to remedies in antidiscrimination suits comparable to those available “against any public or private entity other than a State”). Nor is coverage of public entities reliably signaled by speaking of “any” entity; “any” can and does mean different things depending upon the setting. Compare, e. g., United States v. Gonzales, 520 U. S. 1, 5 (1997) (suggesting an expansive meaning of the term “‘any other term of imprisonment’” to include state as well as federal sentences), with Raygor v. Regents of Univ. of Minn., 534 U. S. 533, 542-546 (2002) (implying a narrow interpretation of the phrase “ ‘any claim asserted’ ” so as to exclude certain claims dismissed on Eleventh Amendment grounds). To get at Congress’s understanding, what is needed is a broader frame of reference, and in this litigation it helps if we ask how Congress could have envisioned the preemption clause actually working if the FCC applied it at the municipal respondents’ urging. See, e. g., New Jersey Realty Title Ins. Co. v. Division of Tax Appeals of N. J., 338 U. S. 665, 673 (1950) (enquiring into “the practical operation and effect” of a state tax on federal bonds). We think that the strange and indeterminate results of using federal preemption to free public entities from state or local limitations is the key to understanding that Congress used “any entity” with a limited reference to any private entity when it cast the preemption net. Ill A In familiar instances of regulatory preemption under the Supremacy Clause, a federal measure preempting state regulation in some precinct of economic conduct carried on by a private person or corporation simply leaves the private party free to do anything it chooses consistent with the prevailing federal law. If federal law, say, preempts state regulation of cigarette advertising, a cigarette seller is left free from advertising restrictions imposed by a State, which is left without the power to control on that matter. See, e. g., Lorillard Tobacco Co. v. Reilly, 533 U. S. 525, 540-553 (2001). On the subject covered, state law just drops out. But no such simple result would follow from federal preemption meant to unshackle local governments from entrepreneurial limitations. The trouble is that a local government’s capacity to enter an economic market turns not only on the effect of straightforward economic regulation below the national level (including outright bans), but on the authority and potential will of governments at the state or local level to support entry into the market. Preemption of the state advertising restriction freed a seller who otherwise had the legal authority to advertise and the money to do it if that made economic sense. But preempting a ban on government utilities would not accomplish much if the government could not point to some law authorizing it to run a utility in the first place. And preemption would make no difference to anyone if the state regulator were left with control over funding needed for any utility operation and declined to pay for it. In other words, when a government regulates itself (or the subdivision through which it acts) there is no clear distinction between the regulator and the entity regulated. Legal limits on what may be done by the government itself (including its subdivisions) will often be indistinguishable from choices that express what the government wishes to do with the authority and resources it can command. That is why preempting state or local governmental self-regulation (or regulation of political inferiors) would work so differently from preempting regulation of private players that we think it highly unlikely that Congress intended to set off on such uncertain adventures. A few hypotheticals may bring the point home. B Hypotheticals have to rest on some understanding of what §253 means when it describes subjects of its preemption as laws or regulations that prohibit, expressly or in effect, “the ability of any entity” to provide telecommunications. The reference to “ability” complicates things. In customary usage, we speak simply of prohibiting a natural or legal person from doing something. To speak in terms of prohibiting their ability to provide a service may mean something different: it may mean denying the entity a capacity or authority to act in the first place. But this is not clear, and it is possible that a law prohibiting the ability to provide telecommunications means a law that limits or cuts back on some preexisting authority (under a different law) to go into the telecommunications business. If the scope of law subject to preemption under § 253 has the former, broader, meaning, consider how preemption would apply to a state statute authorizing municipalities to operate specified utilities, to provide water and electricity but nothing else. The enumeration would certainly have the effect of prohibiting a municipally owned and operated electric utility from entering the telecommunications business (as Congress clearly meant private electric companies to be able to do, see S. Rep. No. 103-367, p. 55 (1994)), and its implicit prohibition would thus be open to FCC preemption. But what if the FCC did preempt the restriction? The municipality would be free of the statute, but freedom is not authority, and in the absence of some further, authorizing legislation the municipality would still be powerless to enter the telecommunications business. There is, after all, no argument that the Telecommunications Act of 1996 is itself a source of federal authority granting municipalities local power that state law does not. Now assume that § 253 has the narrower construction (preempting only laws that restrict authority derived from a different legal source). Consider a State with plenary authority itself, under its constitution, to operate any variety of utility. Assume that its statutes authorized a state-run utility to deliver electric and water services, but drew the line at telecommunications. The restrictive element of that limited authorization would run afoul of § 253 as respondents would construe it. But if, owing to preemption, the state operating utility authority were suddenly free to provide telecommunications and its administrators were raring to enter this new field, where would the necessary capital come from? Surely there is no contention that the Telecommunications Act of 1996 by its own force entails a state agency’s entitlement to unappropriated funds from the state treasury, or to the exercise of state bonding authority. Or take the application of § 253 preemption to municipalities empowered by state law to furnish services generally, but forbidden by a special statute to exercise that power for the purpose of providing telecommunications services. If the special statute were preempted, a municipality in that State would have a real option to enter the telecommunications business if its own legislative arm so chose and funded the venture. But in a State next door where municipalities lacked such general authority, a local authority would not be able to, and the result would be a national crazy quilt. We will presumably get a crazy quilt, of coruse, as a consequence of state and local political choices arrived at in the absence of any preemption under §253, but the crazy quilt of this hypothetical would result not from free political choices but from the fortuitous interaction of a federal preemption law with the forms of municipal authorization law. Finally, consider the result if a State that previously authorized municipalities to operate a number of utilities including telecommunications changed its law by narrowing the range of authorization. Assume that a State once authorized municipalities to furnish water, electric, and communications services, but sometime after the passage of §253 narrowed the authorization so as to leave municipalities authorized to enter only the water business. The repealing statute would have a prohibitory effect on the prior ability to deliver telecommunications service and would be subject to preemption. But that would mean that a State that once chose to provide broad municipal authority could not reverse course. A State next door, however, starting with a legal system devoid of any authorization for municipal utility operation, would at the least be free to change its own course by authorizing its municipalities to venture forth. The result, in other words, would be the federal creation of a one-way ratchet. A State or municipality could give the power, but it could not take it away later. Private counterparts could come and go from the market at will, for after any federal preemption they would have a free choice to compete or not to compete in telecommunications; governmental providers could never leave (or, at least, could not leave by a forthright choice to change policy), for the law expressing the government’s decision to get out would be preempted. The municipal respondents’ answer to the one-way ratchet, and indeed to a host of the incongruities that would follow from preempting governmental restriction on the exercise of its own power, is to rely on § 253(b), which insulates certain state actions taken “on a competitively neutral basis.” Respondents contend, that a State or municipality would be able to make a competitively neutral change of mind to leave the telecommunications market after deciding earlier to enter it or authorize entry. Tr. of Oral Arg. 32-33. But we think this is not much of an answer. The FCC has understood § 253(b) neutrality to require a statute or regulation affecting all types of utilities in like fashion, as a law removing only governmental entities from telecommunications could not be. See, e.g., In re Federal-State Joint Board on Universal Service, 15 FCC Red. 15168, 15175-15178, ¶¶ 19-24 (2000) (declaratory ruling). An even more fundamental weakness in respondents’ answer is shown in briefs filed by amici City of Abilene and Consumer Federation of America. We have no reason to doubt them when they explain how highly unlikely it is that a state decision to withdraw would be “neutral” in any sense of the word. There is every reason to expect just the contrary, that legislative choices in this arena would reflect the intent behind the intense lobbying directed to those choices, manifestly intended to impede, not enhance, competition. See, e.g., Chen, Legal Process and Political Economy of Telecommunications Reform, 97 Colum. L. Rev. 835, 866-868 (1997). After all, the notion that the legislative process addressing governmental utility authority is susceptible to capture by competition-averse private utilities is fully consistent with (and one reason for) the FCC’s position that statutes like Missouri’s disserve the policy objects of the Telecommunications Act of 1996. Given the unlikely application of § 253(b) to state or local choices driven by policy, not business failure, the fair conclusion is that § 253(a), if read respondents’ way, would allow governments to move solely toward authorizing telecommunications operation, with no alternative to reverse course deliberately later on. In sum, §253 would not work like a normal preemptive statute if it applied to a governmental unit. It would often accomplish nothing, it would treat States differently depending on the formal structures of their laws authorizing municipalities to function, and it would hold out no promise of a national consistency. We think it farfetched that Congress meant § 253 to start down such a road in the absence of any clearer signal than the phrase “ability of any entity.” See, e. g., United States v. American Trucking Assns., Inc., 310 U. S. 534, 543 (1940) (Court will not construe a statute in a manner that leads to absurd or futile results). C Justice Stevens contends that in our use of the hypothetical examples to illustrate the implausibility of the municipal respondents’ reading of §253, we read the statute in a way that produces anomalous results unnecessarily, whereas a simpler interpretation carrying fewer unhappy consequences is available. The dissent emphasizes the word “ability” in the phrase “prohibit or has the effect of prohibiting the ability of any entity” to furnish telecommunications. With its focus on this word, the dissent concludes that “§ 253 prohibits States from withdrawing municipalities’ preexisting authority to enter the telecommunications business, but does not command that States affirmatively grant either that authority or the means with which to carry it out.” Post, at 145. Thus, if a State leaves an earlier grant of authority on the books while limiting it with a legislative ban on telecommunications, the new statute would be preempted, and presumably preemption would also defeat a State’s attempted withdrawal of municipalities’ authority by repealing the preexisting authorization itself. But on the very next page, Justice Stevens allows (in the course of disagreeing about the one-way ratchet) that “[a] State may withdraw comprehensive authorization in favor of enumerating specific municipal powers . . . .” Post, at 146. It turns out, in other words, that withdrawals of preexisting authority are not (or not inevitably, at any rate) subject to preemption. The dissent goes on to clarify that it means to distinguish between withdrawals of authority that are competitively neutral in the sense of being couched in general terms (and therefore not properly the subject of preemption), and those in which the repealing law expressly targets telecommunications (and therefore properly preempted). “[T]he one thing a State may not do,” the dissent explains, “is enact a statute or regulation specifically aimed at preventing municipalities or other entities from providing telecommunications services.” Ibid. But the practical implication of that interpretation is to read out of § 253 the words “or ha[s] the effect of prohibiting,” by which Congress signaled its willingness to preempt laws that produce the unwanted effect, even if they do not advertise their prohibitory agenda on their faces. Even if §253 permitted such a formalistic distinction between implicit and explicit repeals of authority, the result would be incoherence of policy; whether the issue is viewed through the lens of preventing anticom-petitive action or the lens of state autonomy from federal interference, there is no justification for preempting only those laws that self-consciously interfere with the delivery of telecommunications services. In short, instead of supplying a more straightforward interpretation of §253, the dissent ends up reading it in a way that disregards its plain language and entails a policy consequence that Congress could not possibly have intended. IV The municipal respondents’ position holds sufficient promise of futility and uncertainty to keep us from accepting it, but a complementary principle would bring us to the same conclusion even on the assumption that preemption could operate straightforwardly to provide local choice, as in some instances it might. Preemption would, for example, leave a municipality with a genuine choice to enter the telecommunications business when state law provided general authority and a newly unfettered municipality wished to fund the effort. But the liberating preemption would come only by interposing federal authority between a State and its municipal subdivisions, which our precedents teach, “are created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them in its absolute discretion.” Wisconsin Public Intervenor v. Mortier, 501 U. S. 597, 607-608 (1991) (internal quotation marks, citations, and alterations omitted); Columbus v. Ours Garage & Wrecker Service, Inc., 536 U. S. 424, 433 (2002). Hence the need to invoke our working assumption that federal legislation threatening to trench on the States’ arrangements for conducting their own governments should be treated with great skepticism, and read in a way that preserves a State’s chosen disposition of its own power, in the absence of the plain statement Gregory requires. What we have said already is enough to show that § 253(a) is hardly forthright enough to pass Gregory: “ability of any entity” is not limited to one reading, and neither statutory structure nor legislative history points unequivocally to a commitment by Congress to treat governmental telecommunications providers on par with private firms. The want of any “unmistakably clear” statement to that effect, 501 U. S., at 460, would be fatal to respondents’ reading. The judgment of the Court of Appeals for the Eighth Circuit is, accordingly, reversed. It is so ordered. The provision is subject to some exceptions not pertinent here, and as originally enacted the law was set to expire in 2002. The assembly later pushed the expiration date ahead to 2007. Mo. Rev. Stat. §392.410(7) (Supp. 2003). The line between “political subdivision” and “independent entity” the FCC located by reference to state law. By its terms, the FCC order declined to preempt the statute as it applied to municipally owned utilities not chartered as independent corporations, on the theory that under controlling Missouri law, they were subdivisions of the State. 16 FCC Rcd., at 1158. The Commission implied an opposite view, however, regarding the status, under § 253, of municipal utilities that had been separately chartered. Ibid. The question whether §253 preempts state and municipal regulation of these types of entities is not before us, and we express no view as to its proper resolution. The hypothetical city, in other words, is “general law” rather than “home rule.” See City of Lockhart v. United States, 460 U. S. 125, 127 (1983) (In contrast to a general law city, a home rule city has state constitutional authority to do whatever is not specifically prohibited by state legislation). The Court granted certiorari solely to consider whether municipalities are subsumed under the rubric “any entity,” and our holding reaches only that question. There is, nevertheless, a logical affinity between the question presented and the hypothetical situation in which a State were to decide, directly or effectively, against its own delivery of telecommunications services. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

J

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Pee Cueiam. Respondents sued petitioner Bankers Trust Co. under § 10 (b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U. S. C. § 78j (b) (1976 ed.), for allegedly fraudulent statements. The District Court for the Southern District of New York dismissed the action on the ground that the fraud alleged had not occurred “in connection with the purchase or sale” of a security, as required by § 10 (b). Mallis v. Federal Deposit Ins. Corp., 407 F. Supp. 7 (1975). The Court of Appeals for the Second Circuit reversed, holding that respondents were “purchasers [of securities] by virtue of their acceptance of [a] pledge” of stock and that petitioner was “a seller by virtue of its release of [a] pledge.” Mallis v. Federal Deposit Ins. Corp., 568 F. 2d 824, 830 (1977). We granted certiorari to consider the correctness of these rulings of the Court of Appeals. 431 U. S. 928 (1977). We find ourselves initially confronted, however, by a difficult question of federal appellate jurisdiction. As the Court of Appeals noted in its opinion, a search of the District Court record fails to uncover “any document that looks like a judgment.” 568 F. 2d, at 827 n. 4. Because both the parties and the District Court “proceeded on the assumption that there was an adjudication of dismissal,” ibid. the Court of Appeals felt free to consider the merits of the appeal. The Court of Appeals action, however, conflicts with the decisions of other Courts of Appeals concluding that a judgment set forth on a “separate document” is a prerequisite to appellate jurisdiction. We conclude that the Court of Appeals for the Second Circuit was correct in deciding that it had jurisdiction in this case despite the absence of a separate judgment. Appellate jurisdiction was invoked under 28 U. S. C. § 1291, which provides that the “courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States.” The issue posed is whether a decision of a district court can be a “final decision” for purposes of § 1291 if not set forth on a document separate from the opinion. The issue arises because of Fed. Rule Civ. Proc. 58, which reads in part: We assume, without deciding, that the requirements for an effective judgment set forth in the Federal Rules of Civil Procedure must generally be satisfied before § 1291 jurisdiction may be invoked. We nonetheless conclude that it could not have been intended that the separate-document requirement of Rule 58 be such a categorical imperative that the parties are not free to waive it. “Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79 (a).” The sole purpose of the separate-document requirement, which was added to Rule 58 in 1963, was to clarify when the time for appeal under 28 U. S. C. § 2107 begins to run. According to the Advisory Committee that drafted the 1963 amendment: “Hitherto some difficulty has arisen, chiefly where the court has written an opinion or memorandum containing some apparently directive or dispositive words, e. g., 'the plaintiff’s motion [for summary judgment] is granted,’ see United States v. F. & M. Schaefer Brewing Co., 356 U. S. 227, 229 . . . (1958). Clerks on occasion have viewed these opinions or memoranda as being in themselves a sufficient basis for entering judgment in the civil docket as provided by Rule 79 (a). However, where the opinion or memorandum has not contained all the elements of a judgment, or where the judge has later signed a formal judgment, it has become a matter of doubt whether the purported entry of a judgment was effective, starting the time running for post verdict motions and for the purpose of appeal. . . . “The amended rule eliminates these uncertainties by requiring that there be a judgment set out on a separate document — distinct from any opinion or memorandum— which provides the basis for the entry of judgment.” 28 U. S. C. App., p. 7824. The separate-document requirement was thus intended to avoid the inequities that were inherent when a party appealed from a document or docket entry that appeared to be a final judgment of the district court only to have the appellate court announce later that an earlier document or entry had been the judgment and dismiss the appeal as untimely. The 1963 amendment to Rule 58 made clear that a party need not file a notice of appeal until a separate judgment has been filed and entered. See United States v. Indrelunas, 411 U. S. 216, 220-222 (1973). Certainty as to timeliness, however, is not advanced by holding that appellate jurisdiction does not exist absent a separate judgment. If, by error, a separate judgment is not filed before a party appeals, nothing but delay would flow from requiring the court of appeals to dismiss the appeal. Upon dismissal, the district court would simply file and enter the separate judgment, from which a timely appeal would then be taken. Wheels would spin for no practical purpose. In United States v. Indrelunas, we recognized that the separate-document rule must be “mechanically applied” in determining whether an appeal is timely. Id., at 221-222. Technical application of the separate-judgment requirement is necessary in that context to avoid the uncertainties that once plagued the determination of when an appeal must be brought. Cf. United States v. F. & M. Schaefer Brewing Co., 356 U. S. 227 (1958). The need for certainty as to the timeliness of an appeal, however, should not prevent the parties from waiving the separate-judgment requirement where one has accidentally not been entered. As Professor Moore notes, if the only obstacle to appellate review is the failure of the District Court to set forth its judgment on a separate document, “there would appear to be no point in obliging the appellant to undergo the formality of obtaining a formal judgment.” 9 J. Moore, Federal Practice ¶ 110.08 [2], p. 120 n. 7 (1970). “[I]t must be remembered that the rule is designed to simplify and make certain the matter of appeal-ability. It is not designed as a trap for the inexperienced. . . . The rule Should be interpreted to prevent loss of the right of appeal, not to facilitate loss.” Id., at 119-120. The Federal Rules of Civil Procedure are to be “construed to secure the just, speedy, and inexpensive determination of every action.” In Foman v. Davis, 371 U. S. 178 (1962), this Court was asked to apply Rule 73 which, as then written, provided that an appeal was to be taken “by filing with the District Court a notice of appeal,” which notice “shall designate the judgment or part thereof appealed from.” Under Rule 73 it was clear that the filing of a notice of appeal was “jurisdictional,” and the contents of the notice of appeal were prescribed in the Rule. This Court nonetheless held in Foman that a notice of appeal from a denial of motions to vacate a judgment and to amend the complaint was, in view of an earlier and premature notice of appeal, a notice of appeal from the original judgment. “The defect in the second notice of appeal did not mislead or prejudice the respondent. With both notices of appeal before it (even granting the asserted ineffectiveness of the first) the Court of Appeals should have treated the appeal from the denial of the motions as an effective, although inept, attempt to appeal from the judgment sought to be vacated.” 371 U. S., at 181. The same principles of common-sense interpretation that led the Court in Foman to conclude that the technical requirements for a notice of appeal were not mandatory where the notice “did not mislead or prejudice” the appellee demonstrate that parties to an appeal may waive the separate-judgment requirement of Rule 58. “It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities.” 371 U. S., at 181; Here, the District Court clearly evidenced its intent that the opinion and order from which an appeal was taken would represent the final decision in the case. A judgment of dismissal was recorded in the clerk’s docket. And petitioner did not object to the taking of the appeal in the absence of a separate judgment. Under these circumstances, the parties should be deemed to have waived the separate-judgment requirement of Rule 58, and the Court of Appeals properly-assumed appellate jurisdiction under § 1291. Although we conclude that the Court of Appeals did have appellate jurisdiction to pass on the merits of this case, we do not reach them. At oral argument, counsel for respondents took the position that “the mere release of a pledge is [not] a sale.” Tr. of Oral Arg. 32. Counsel urged that the judgment of the Court of Appeals be affirmed on a theory which differed from the reasoning of the Court of Appeals in reversing the District Court. Because of the change in the posture of the case between the time of the decision of the Court of Appeals and its presentation to us for decision, we dismiss the writ of certiorari as having been improvidently granted. Dismissed. Mr. Justice Blackmun took no part in the consideration or decision of this case. Respondents appealed from a combined opinion and order of the District Court dated September 30, 1975. In the relatively lengthy opinon, the District Court granted petitioner’s motion to dismiss the claim for failure to state a federal claim upon which relief could be granted and then concluded: “Complaint dismissed in its entirety. So ORDERED.” On the same day, an entry was made on the District Court docket reading, “Complaint dismissed in its entirety. So Ordered. Pollack, J. (mn).” See, e. g., Lyons v. Davoren, 402 F. 2d 890 (CA1 1968); Sassoon v. United States, 549 F. 2d 983 (CA5 1977); Richland Trust Co. v. Federal Ins. Co., 480 F. 2d 1212 (CA6 1973); Home Fed. Sav. & Loan v. Republic Ins. Co., 405 F. 2d 18 (CA7 1968); Baity v. Ciccone, 507 F. 2d 717 (CA8 1974); Baker v. Southern Pac. Transp., 542 F. 2d 1123 (CA9 1976). But see W. G. Cosby Transfer & Storage Corp. v. Froehlke, 480 F. 2d 498, 501 n. 4 (CA4 1973). Rule 58 reads in its entirety: “Subject to the provisions of Rule 54 (b): (1) upon a general verdict of a jury, or upon a decision by the court that a party shall recover only a sum certain or costs or that all relief shall be denied, the clerk, unless the court otherwise orders, shall forthwith prepare, sign, and enter the judgment without awaiting any direction by the court; (2) upon a decision by the court granting other relief, or upon a special verdict or a general verdict accompanied by answers to interrogatories, the court shall promptly approve the form of the judgment, and the clerk shall thereupon enter it. Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79 (a). Entry of the judgment shall not be delayed for the taxing of costs. Attorneys shall not submit forms of judgment except upon direction of the court, and these directions shall not be given as a matter of course.” A “judgment” for purposes of the Federal Rules of Civil Procedure would appear to be equivalent to a "final decision” as that term is used in 28 U. S. C. § 1291. Federal Rule Civ. Proc. 54 (a), for example, provides that “ ‘[¿judgment’ as used in these rules includes a decree and any order from which an appeal lies.” See also Ex parte Tiffany, 252 U. S. 32, 36 (1920); 6A J. Moore, Federal Practice ¶ 58.02, pp. 51-52 (1972). Because Rule 58 provides that a “judgment is effective only . . . when entered as provided in Rule 79 (a),” it is arguable that a decision must be entered on the civil docket before it may constitute a “final decision” for purposes of § 1291. Unlike the separate-document requirement, however, the keeping of a civil docket pursuant to Rule 79 fulfills a public recordkeeping function over and above the giving of notice to the losing party that a final decision has been entered against it. A judgment of dismissal was entered in this case below. See n. 1, supra. Section 2107 provides that “[ejxcept as otherwise provided in this section, no appeal shall bring any judgment, order or decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed, within thirty days after the entry of such judgment, order or decree.” See also Fed. Rule App. Proc. 4 (a). Nor would strict compliance with the separate-judgment requirement aid in the court of appeals’ determination of whether the decision of the District Court was “final” for purposes of § 1291. Even if a separate judgment is filed, the courts of appeals must still determine whether the district court intended the judgment to represent the final decision in the case. Cf. United States v. Hark, 320 U. S. 531 (1944). While our decision in Indrelunas is consistent with the result we reach today, the beginning paragraph of Indrelunas could be read as holding that a separate judgment must be filed in compliance with Rule 58 before a decision is “final” for purposes of § 1291. In Indrelunas, we noted that since both parties conceded “that the jurisdiction of the Court of Appeals was based on the provisions of 28 U. S. C. § 1291, making final decisions of the district courts appealable, the correctness of the Court of Appeals’ decision depends on whether the District Court’s judgment of February 25, 1971, was a final decision. That question, in turn, depends on whether actions taken in the District Court previous to the February date amounted to the ‘entry of judgment’ as that term is used in Fed. Rule Civ. Proc. 58.” 411 U. S., at 216. To the extent the above passage is inconsistent with our decision today, we disavow it. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

I

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Per Curiam. This is an appeal from an order of the District Court dismissing without prejudice the Government’s suit under § 7 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 18, to enjoin a bank holding company’s acquisition. Appellee Michigan National Corporation (MNC), a bank holding company that owns five Michigan banks, seeks control of four additional Michigan banks. The planned acquisition will take the following form. MNC will charter four “phantom” banks, initially having no assets or deposits, whose stock it will acquire. The four target banks will be merged with the phantom banks, thereby becoming subsidiary banks of the holding company. The form of the transaction brings it within the purview of .two regulatory statutes. Section 3 of the Bank Holding Company Act of 1956, 70 Stat. 134, as amended, 80 Stat. 237, 12 U. S. C. § 1842, requires that an acquisition of a subsidiary bank by a holding company be approved by the Board of Governors of the Federal Reserve System. Section 18 (c) (2) (A) of the Federal Deposit Insurance Act, as amended by the Bank Merger Act, 80 Stat. 7, 12 U. S. C. § 1828 (c)(2)(A), requires approval of bank mergers by a designated agency, which in the case of an acquisition by a national bank is the Comptroller of the Currency. Each regulatory statute provides time limitations for antitrust suits challenging transactions that have gained administrative approval. The Bank Holding Company Act, § 11, as amended, 80 Stat. 240, 12 U. S. C. § 1849, provides that an antitrust suit arising from a holding company acquisition must be brought within 30 days of approval by the Federal Reserve Board. The Bank Merger Act, 12 U. S. C. §§ 1828 (c) (6) and (7), establishes a similar 30-day period following approval of a merger by the designated administrative body. Under both statutes, transactions having administrative approval cannot go forward during the period within which an antitrust suit may be brought, or during the pendency of a timely antitrust suit unless the court otherwise orders. The expiration of the period without the filing of an antitrust suit, however, allows the transacting parties to consummate arrangements without fear of challenge. MNC made applications to both the Federal Reserve Board and the Comptroller for approval of its proposed transactions. Disapproval by either body would prevent MNC from completing the entire acquisition as planned. In October 1973 the Federal Reserve Board approved the acquisitions by the holding company. Without awaiting action by the Comptroller, the Government filed complaints, under the Clayton Act to enjoin the acquisition; the suit was brought within the 30-day period prescribed by § 11 of the Bank Holding Company Act. The District Court dismissed the complaints without prejudice, ruling that the Government should bring a new lawsuit if and when the Comptroller approved the merger of the target banks with the “phantoms.” The Government took a direct appeal to this Court, 32 Stat. 823, 15 U. S. C. § 29. The District Court reasoned that the Government’s suit was “premature,” since a disapproval by the Comptroller would moot the Clayton Act claim. Whether viewed as a dismissal for lack of a “case or controversy” or as an exercise of equitable discretion, we believe the District Court’s action was error. The view that the possibility of disapproval by the Comptroller deprived the District Court of an actual controversy to adjudicate, a position taken by appel-lees below, cannot be squared with the many decisions permitting a federal court to stay proceedings in a case properly before it while awaiting the decision of another tribunal. This is the holding of Railroad Comm’n v. Pullman Co., 312 U. S. 496 (1941), which launched the abstention doctrine. Pullman held that where an order of the Texas Railroad Commission was challenged in a District Court as violative of the Fourteenth Amendment and as outside the Commission’s authority under state law, the federal court should stay proceedings pending a resolution by the Texas courts of the state law question of the Commission’s authority. In succeeding cases that have applied the Pullman doctrine, the common practice has been for the district court to retain jurisdiction but to stay proceedings while awaiting a decision in the state courts. See, e. g., Chicago v. Fieldcrest Dairies, Inc., 316 U. S. 168 (1942); Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101 (1944); Government & Civic Employees Organizing Committee v. Windsor, 353 U. S. 364 (1957); Louisiana Power & Light Co. v. City of Thibodaux, 360 U. S. 25 (1959); England v. Louisiana State Board of Medical Examiners, 375 U. S. 411 (1964) ; Lake Carriers’ Assn. v. MacMullan, 406 U. S. 498 (1972). That a favorable decision in the state court might moot the plaintiff’s constitutional claim brought to the federal court was never thought to create any jurisdictional impediment. For jurisdictional purposes, it suffices that there is a “real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Aetna Life Insurance Co. v. Haworth, 300 U. S. 227, 241 (1937). The same procedure has generally been followed when the resolution of a claim cognizable in a federal court must await a determination by an administrative agency having primary jurisdiction. See Carnation Co. v. Pacific Westbound Conference, 383 U. S. 213, 222-224 (1966); General American Tank Car Corp. v. El Dorado Terminal Co., 308 U. S. 422, 432-433 (1940); Mitchell Coal Co. v. Pennsylvania R. Co., 230 U. S. 247 (1913). Dismissal rather than a stay has been approved where there is assurance that no party is prejudiced thereby. See Far East Conference v. United States, 342 U. S. 570 (1952). In the present case we cannot say with assurance that the Government will not be prejudiced by a dismissal. Section 11 of the Bank Holding Company Act provides that “[a]ny action brought under the antitrust laws arising out of an acquisition, merger, or consolidation transaction” shall be commenced within the 30-day period following approval by the Board. 12 U. S. C. § 1849 (b) (emphasis added). By the time the Comptroller approves the mergers, the 30-day period following Board approval may have long since expired. By waiting for approval of the Comptroller before filing its lawsuit, the Government runs the risk that complete relief will be barred by the provisions of § 11. MNC disputes this, arguing that so long as the Government brings suit following the Comptroller’s approval within the time prescribed by the Bank Merger Act, it will be able to challenge the merger of the target banks with the “phantoms,” the only event which gives the transaction competitive significance. Congress does not appear to have considered expressly the application of the time limitations to transactions falling within both regulatory statutes. While the question is not free from doubt, there is a procedure that preserves beyond doubt the Government’s ability fully to pursue its Clayton Act suit and at the same time produces no hardship to the other party. Where suit is brought after the first administrative decision and stayed until remaining administrative proceedings have concluded, judicial resources are conserved and both parties fully protected. The judgment of the District Court is vacated and the case remanded for the entry of further orders consistent with this opinion. So ordered. Shorter periods are prescribed by the Bank Merger Act when the designated agency finds that expedition of the transaction is necessary “to prevent the probable failure of one of the banks involved.” 12 U. S. C. §§1828 (c)(4) and (6). We may put to one side cases where the administrative agency has exclusive jurisdiction to consider the complaint initially brought in court, e. g., Pan American World Airways v. United States, 371 U. S. 296 (1963), or those in which Congress, by depriving the agency of a remedy, is deemed to have withheld it from the courts as well, e. g., Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U. S. 246 (1951). In such cases, the court must of course dismiss the action. On May 16, 1974, nearly three months after the District Court dismissed the case, the Comptroller approved the merger of two target banks with their corresponding “phantoms.” The Government filed a new Clayton Act complaint against the approved mergers within the period prescribed by the Bank Merger Act.. The District Court has not yet ruled on a motion by MNC to dismiss that complaint because of the pendency of this appeal. The Comptroller has made no decision on MNC’s proposed mergers involving the two remaining target banks. Though the two statutes of limitations were enacted in the same year, there is no indication in the legislative history that Congress considered their relationship in the case of a transaction within the purview of both regulatory acts. See S. Rep. No. 299, 89th Cong., 1st Sess. (1965), and H. R. Rep. No. 1221,89th Cong., 2d Sess. (1966) (Bank Merger Act); S. Rep, No. 1179, 89th Cong., 2d Sess. (1966), and H. R. Rep. No. 534, 89th Cong., 1st Sess. (1965) (Bank Holding Company Act). Because proceedings in the District Court would be stayed, MNC’s assertion that the lawsuit “placed the defendants in the position of having to prepare to defend, in an antitrust action, transactions which they did not have regulatory approval to consummate,” is simply a makeweight. (Motion to Affirm 6.) Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

I

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Per Curiam. The judgment below is affirmed by an equally divided Court. Mr. Justice Marshall took no part in the consideration or decision of this case. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Stevens delivered the opinion of the Court. When he became head basketball coach at the University of Nevada, Las Vegas (UNLV), in 1973, Jerry Tarkanian inherited a team with a mediocre 14-14 record. App. 188, 205. Four years later the team won 29 out of 32 games and placed third in the championship tournament sponsored by the National Collegiate Athletic Association (NCAA), to which UNLV belongs. Id., at 188. Yet in September 1977 UNLV informed Tarkanian that it was going to suspend him. No dissatisfaction with Tarkanian, once described as “the ‘winningest’ active basketball soach,” id., at 19, motivated his suspension. Rather, the impetus was a report by the NCAA detailing 38 violations of NCAA rules by UNLV personnel, including 10 involving Tarkanian. The NCAA had placed the university’s basketball team on probation for two years and ordered UNLV to show cause why the NCAA should not impose further penalties unless UNLV severed all ties during the probation between its intercollegiate athletic program and Tarkanian. Facing demotion and a drastic cut in pay, Tarkanian brought suit in Nevada state court, alleging that he had been deprived of his Fourteenth Amendment due process rights in violation of 42 U. S. C. § 1983. Ultimately Tarkanian obtained injunctive relief and an award of attorney’s fees against both UNLV and the NCAA. 103 Nev. 331, 741 P. 2d 1345 (1987) (per curiam). NCAA’s liability may be upheld only if its participation in the events that led to Tarkanian’s suspension constituted “state action” prohibited by the Fourteenth Amendment and was performed “under color of” state law within the meaning of § 1983. We granted certiorari to review the Nevada Supreme Court’s holding that the NCAA engaged in state action when it conducted its investigation and recommended that Tarkanian be disciplined. 484 U. S. 1058 (1988). We now reverse. I In order to understand the four separate proceedings that gave rise to the question we must decide, it is useful to begin with a description of the relationship among the three parties — Tarkanian, UNLV, and the NCAA. Tarkanian initially was employed on a year-to-year basis but became a tenured professor in 1977. He receives an annual salary with valuable fringe benefits, and his status as a highly successful coach enables him to earn substantial additional income from sports-related activities such as broadcasting and the sponsorship of products. UNLY is a branch of the University of Nevada, a state-funded institution. The university is organized and operated pursuant to provisions of Nevada’s State Constitution, statutes, and regulations. In performing their official functions, the executives of UNLV unquestionably act under color of state law. The NCAA is an unincorporated association of approximately 960 members, including virtually all public and private universities and 4-year colleges conducting major athletic programs in the United States. Basic policies of the NCAA are determined by the members at annual conventions. Between conventions, the Association is governed by its Council, which appoints various committees to implement specific programs. One of the NCAA’s fundamental policies “is to maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body, and by so doing, retain a clear line of demarcation between college athletics and professional sports.” App. 80. It has therefore adopted rules, which it calls “legislation,” ibid., governing the conduct of the intercollegiate athletic programs of its members. This NCAA legislation applies to a variety of issues, such as academic standards for eligibility, admissions, financial aid, and the recruiting of student athletes. By joining the NCAA, each member agrees to abide by and to enforce such rules. The NCAA’s bylaws provide that its enforcement program shall be administered by a Committee on Infractions. The Committee supervises an investigative staff, makes factual determinations concerning alleged rule violations, and is expressly authorized to “impose appropriate penalties on a member found to be in violation, or recommend to the Council suspension or termination of membership.” In particular, the Committee may order a member institution to show cause why that member should not suffer further penalties unless it imposes a prescribed discipline on an employee; it is not authorized, however, to sanction a member institution’s employees directly. The bylaws also provide that representatives of member institutions “are expected to cooperate fully” with the administration of the enforcement program. Id., at 97. The bylaws do not purport to confer any subpoena power on the Committee or its investigators. They state: “The enforcement procedures are an essential part of the intercollegiate athletic program of each member institution and require full and complete disclosure by all institutional representatives of any relevant information requested by the NCAA investigative staff, Committee on Infractions or Council during the course of an inquiry.” Ibid. During its investigation of UNLV, the Committee on Infractions included three law professors, a mathematics professor, and the dean of a graduate school. Four of them were on the faculties of state institutions; one represented a private university. The NCAA Investigation of UNLV On November 28, 1972, the Committee on Infractions notified UNLV’s president that it was initiating a preliminary inquiry into alleged violations of NCAA requirements by UNLV. As a result of that preliminary inquiry, some three years later the Committee decided that an “Official Inquiry” was warranted and so advised the UNLV president on February 25, 1976. That advice included a series of detailed allegations concerning the recruitment of student athletes during the period between 1971 and 1975. Many of the allegations implicated Tarkanian. It requested UNLV to investigate and provide detailed information concerning each alleged incident. With the assistance of the Attorney General of Nevada and private counsel, UNLV conducted a thorough investigation of the charges. On October 27, 1976, it filed a comprehensive response containing voluminous exhibits and sworn affidavits. The response denied all of the allegations and specifically concluded that Tarkanian was completely innocent of wrongdoing. Thereafter, the Committee conducted four days of hearings at which counsel for UNLV and Tarkanian presented their views of the facts and challenged the credibility of the NCAA investigators and their informants. Ultimately the Committee decided that many of the charges could not be supported, but it did find 38 violations of NCAA rules, including 10 committed by Tarkanian. Most serious was the finding that Tarkanian had violated the University’s obligation to provide full cooperation with the NCAA investigation. The Committee’s findings and proposed discipline were summarized in great detail in its so-called “Confidential Report No. 123(47).” App. 122-204. The Committee proposed a series of sanctions against UNLV, including a 2-year period of probation during which its basketball team could not participate in postseason games or appear on television. The Committee also requested UNLV to show cause why additional penalties should not be imposed against UNLV if it failed to discipline Tarkanian by removing him completely from the University’s intercollegiate athletic program during the probation period. UNLV appealed most of the Committee’s findings and proposed sanctions to the NCAA Council. After hearing arguments from attorneys representing UNLV and Tarkanian, the Council on August 25, 1977, unanimously approved the Committee’s investigation and hearing process and adopted all its recommendations. UNLV’s Discipline of Tarkanian Promptly after receiving the NCAA report, the president of UNLV directed the University’s vice president to schedule a hearing to determine whether the Committee’s recommended sanctions should be applied. Tarkanian and UNLV were represented at that hearing; the NCAA was not. Although the vice president expressed doubt concerning the sufficiency of the evidence supporting the Committee’s findings, he concluded that “given the terms of our adherence to the NCAA we cannot substitute — biased as we must be — our own judgment on the credibility of witnesses for that of the infractions committee and the Council.” Id., at 75. With respect to the proposed sanctions, he advised the president that he had three options: “1. Reject the sanction requiring us to disassociate Coach Tarkanian from the athletic program and take the risk of still heavier sanctions, e. g., possible extra years of probation. “2. Recognize the University’s delegation to the NCAA of the power to act as ultimate arbiter of these matters, thus reassigning Mr. Tarkanian from his present position — though tenured and without adequate notice— even while believing that the NCAA was wrong. “3. Pull out of the NCAA completely on the grounds that you will not execute what you hold to be their unjust judgments.” Id., at 76. Pursuant to the vice president’s recommendation, the president accepted the second option and notified Tarkanian that he was to “be completely severed of any and all relations, formal or informal, with the University’s Intercollegiate athletic program during the period of the University’s NCAA probation.” Id., at 70. Tarkanian’s Lawsuit Against UNLV The day before his suspension was to become effective, Tarkanian filed an action in Nevada state court for declaratory and injunctive relief against UNLV and a number of its officers. He alleged that these defendants had, in violation of 42 U. S. C. § 1983, deprived him of property and liberty without the due process of law guaranteed by the Fourteenth Amendment to the United States Constitution. Based on a stipulation of facts and the testimony offered by Tarkanian, the trial court enjoined UNLV from suspending Tarkanian on the ground that he had been denied procedural and substantive due process of law. UNLV appealed. The NCAA, which had not been joined as a party, filed an amicus curiae brief arguing that there was no actual controversy between Tarkanian and UNLV; thus, the suit should be dismissed. Alternatively, the NCAA contended that the trial court had exceeded its jurisdiction by effectively invalidating the enforcement proceedings of the NCAA, even though the Association was not a party to the suit. Should a controversy exist, the NCAA argued, it was a necessary party to litigate the scope of any relief. Finally, it contested the trial court’s conclusion that Tarkanian had been denied due process. The Nevada Supreme Court concluded that there was an actual controversy but agreed that the NCAA was a necessary party and therefore reversed and remanded to permit joinder of the NCAA. University of Nevada v. Tarkanian, 95 Nev. 389, 594 P. 2d 1159 (1979). The Lawsuit Against NCAA Tarkanian consequently filed a second amended complaint adding the NCAA. The defendants promptly removed the suit to Federal District Court on the ground that joinder of the NCAA substantially had altered the nature of the litigation. The District Court held, however, that the original defendants had waived their right to remove the suit when it was first filed, and therefore granted Tarkanian’s motion to remand the case to the state court. After a 4-year delay, the trial judge conducted a 2-week bench trial and resolved the issues in Tarkanian’s favor. The court concluded that NCAA’s conduct constituted state action for jurisdictional and constitutional purposes, and that its decision was arbitrary and capricious. It reaffirmed its earlier injunction barring UNLV from disciplining Tarkanian or otherwise enforcing the Confidential Report. Additionally, it enjoined the NCAA from conducting “any further proceedings against the University,” from enforcing its show-cause order, and from taking any other action against the University that had been recommended in the Confidential Report. App. 34. Two weeks after the trial court’s opinion was entered, Tarkanian filed a petition for attorney’s fees pursuant to 42 U. S. C. § 1988. Asserting that this was the first time Tarkanian had claimed relief under § 1988, the NCAA again sought removal to Federal District Court on the ground that the litigation had changed substantially. When the university defendants declined to join the removal petition, the NCAA contended that they should be realigned as plaintiffs because they actually wanted Tarkanian to prevail. The District Court, however, again ordered the litigation remanded, and the Ninth Circuit agreed. App. to Pet. for Cert. A120. Even before the Ninth Circuit ruled, the Nevada trial court had awarded Tarkanian attorney’s fees of almost $196,000, 90% of which was to be paid by the NCAA. App. 41-42. The NCAA appealed both the injunction and the fee order. Not surprisingly, UNLV, which had scored a total victory except for its obligation to pay a fraction of Tarkanian’s fees, did not appeal. The Nevada Supreme Court agreed that Tarkanian had been deprived of both property and liberty protected by the Constitution and that he was not afforded due process before suspension. It thus affirmed the trial court’s injunction insofar as it pertained to Tarkanian, but narrowed its scope “only to prohibit enforcement of the penalties imposed upon Tarkanian in Confidential Report No. 123(47) and UNLV’s adoption of those penalties.” 103 Nev., at 343, 741 P. 2d, at 1353. The court also reduced the award of attorney’s fees. As a predicate for its disposition, the State Supreme Cour held that the NCAA had engaged in state action. Severa strands of argument supported this holding. First, the cour assumed that it was reviewing “UNLV’s and the NCAA’s im position of penalties against Tarkanian,” id., at 335, 741 P 2d, at 1347, rather than the NCAA’s proposed sanction.1 against UNLV if it failed to discipline Tarkanian appropri ately. Second, it regarded the NCAA’s regulatory activities as state action because “many NCAA member institutions were either public or government supported.” Ibid. Third, it stated that the right to discipline a public employee “is traditionally the exclusive prerogative of the state” and that UNLV could not escape its responsibility for such disciplinary action by delegating that duty to a private entity. Id., at 336, 741 P. 2d, at 1348. The court next pointed to our opinion in Lugar v. Edmondson Oil Co., 457 U. S. 922, 937 (1982), in which we held that.the deprivation of a federal right may be attributed to the State if it resulted from a state-created rule and the party charged with the deprivation can fairly be said to a state actor. Summing up its holding that the NCAA’s activities constituted state action, the Nevada Supreme Court stated: “The first prong [of Lugar] is met because no third party could impose disciplinary sanctions upon a state university employee unless the third party received the right or privilege from the university. Thus, the deprivation which Tarkanian alleges is caused by the exercise of a right or privilege created by the state. Also, in the instant case, both UNLV and the NCAA must be considered state actors. By delegating authority to the NCAA over athletic personnel decisions and by imposing the NCAA sanctions against Tarkanian, UNLV acted jointly with the NCAA.” 103 Nev., at 337, 741 P. 2d, at 1349. II Embedded in our Fourteenth Amendment jurisprudence is a dichotomy between state action, which is subject to scrutiny under the Amendment’s Due Process Clause, and private conduct, against which the Amendment affords no shield, no matter how unfair that conduct may be. Shelley v. Kraemer, 334 U. S. 1, 13 (1948); see Jackson v. Metropolitan Edison Co., 419 U. S. 345, 349 (1974). As a general matter the protections of the Fourteenth Amendment do not extend to “private conduct abridging individual rights.” Burton v. Wilmington Parking Authority, 365 U. S. 715, 722 (1961). “Careful adherence to the ‘state action’ requirement preserves an area of individual freedom by limiting the reach of federal law” and avoids the imposition of responsibility on a State for conduct it could not control. Lugar, 457 U. S., at 936-937. When Congress enacted §1983 as the statutory remedy for violations of the Constitution, it specified that the conduct at issue must have occurred “under color of” state law; thus, liability attaches only to those wrongdoers “who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.” Monroe v. Pape, 365 U. S. 167, 172 (1961). As we stated in United States v. Classic, 313 U. S. 299, 326 (1941): “Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of’ state law.” In this case Tarkanian argues that the NCAA was a state actor because it misused power that it possessed by virtue of state law. He claims specifically that UNLV delegated its own functions to the NCAA, clothing the Association with authority both to adopt rules governing UNLV’s athletic programs and to enforce those rules on behalf of UNLV. Similarly, the Nevada Supreme Court held that UNLV had delegated its authority over personnel decisions to the NCAA. Therefore, the court reasoned, the two entities acted jointly to deprive Tarkanian of liberty and property interests, making the NCAA as well as UNLV a state actor. These contentions fundamentally misconstrue the facts of this case. In the typical case raising a state-action issue, a private party has taken the decisive step that caused the harm to the plaintiff, and the question is whether the State was sufficiently involved to treat that decisive conduct as state action. This may occur if the State creates the legal framework governing the conduct, e. g., North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S. 601 (1975); if it delegates its authority to the private actor, e. g., West v. Atkins, 487 U. S. 42 (1988); or sometimes if it knowingly accepts the benefits derived from unconstitutional behavior, e. g., Burton v. Wilmington Parking Authority, supra. Thus, in the usual case we ask whether the State provided a mantle of authority that enhanced the power of the harm-causing individual actor. This case uniquely mirrors the traditional state-action case. Here the final act challenged by Tarkanian — his suspension — was committed by UNLV. A state university without question is a state actor. When it decides to impose a serious disciplinary sanction upon one of its tenured employees, it must comply with the terms of the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. Accord, Cleveland Board of Education v. Louder- mill, 470 U. S. 532 (1985); Board of Regents of State Colleges v. Roth, 408 U. S. 564 (1972). Thus when UNLV notified Tarkanian that he was being separated from all relations with the university’s basketball program, it acted under color of state law within the meaning of 42 U. S. C. § 1983. The mirror image presented in this case requires us to step through an analytical looking glass to resolve the case. Clearly UNLV’s conduct was influenced by the rules and recommendations of the NCAA, the private party. But it was UNLV, the state entity, that actually suspended Tarkanian. Thus the question is not whether UNLV participated to a critical extent in the NCAA’s activities, but whether UNLV’s actions in compliance with the NCAA rules and recommendations turned the NCAA’s conduct into state action. We examine first the relationship between UNLV and the NCAA regarding the NCAA’s rulemaking. UNLV is among the NCAA’s members and participated in promulgating the Association’s rules; it must be assumed, therefore, that Nevada had some impact on the NCAA’s policy determinations. Yet the NCAA’s several hundred other public and private member institutions each similarly affected those policies. Those institutions, the vast majority of which were located in States other than Nevada, did not act under color of Nevada law. It necessarily follows that the source of the legislation adopted by the NCAA is not Nevada but the collective membership, speaking through an organization that is independent of any particular State. Cf. Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U. S. 492, 501 (1988) (“Whatever de facto authority the [private standard-setting] Association enjoys, no official authority has been conferred on it by any government...”). State action nonetheless might lie if UNLV, by embracing the NCAA’s rules, transformed them into state rules and the NCAA into a state actor. See Lugar, 457 U. S., at 937. UNLV engaged in state action when it adopted the NCAA’s rules to govern its own behavior, but that would be true even if UNLV had taken no part in the promulgation of those rules. In Bates v. State Bar of Arizona, 433 U. S. 350 (1977), we established that the State Supreme Court’s enforcement of disciplinary rules transgressed by members of its own bar was state action. Those rules had been adopted in toto from the American Bar Association Code of Professional Responsibility. Id., at 360,, n. 12. It does not follow, however, that the ABA’s formulation of those disciplinary rules was state action. The State Supreme Court retained plenary power to reexamine those standards and, if necessary, to reject them and promulgate its own. See id., at 362. So here, UNLV retained the authority to withdraw from the NCAA and establish its own standards. The university alternatively could have stayed in the Association and worked through the Association’s legislative process to amend rules or standards it deemed harsh, unfair, or unwieldy. Neither UNLV’s decision to adopt the NCAA’s standards nor its minor role in their formulation is a sufficient reason for concluding that the NCAA was acting under color of Nevada law when it promulgated standards governing athlete recruitment, eligibility, and academic performance. Tarkanian further asserts that the NCAA’s investigation, enforcement proceedings, and consequent recommendations constituted state action because they resulted from a delegation of power by UNLV. UNLV, as an NCAA member, subscribed to the statement in the Association’s bylaws that NCAA “enforcement procedures are an essential part of the intercollegiate athletic program of each member institution.” App. 97. It is, of course, true that a State may delegate authority to a private party and thereby make that party a state actor. Thus, we recently held that a private physician who had contracted with a state prison to attend to the inmates’ medical needs was a state actor. West v. Atkins, 487 U. S. 42 (1988). But UNLV delegated no power to the NCAA to take specific action against any university employee. The commitment by UNLV to adhere to NCAA enforcement procedures was enforceable only by sanctions that the NCAA might impose on UNLV itself. Indeed, the notion that UNLV’s promise to cooperate in the NCAA enforcement proceedings was tantamount to a partnership agreement or the transfer of certain university powers to the NCAA is belied by the history of this case. It is quite obvious that UNLV used its best efforts to retain its winning coach — a goal diametrically opposed to the NCAA’s interest in ascertaining the truth of its investigators’ reports. During the several years that the NCAA investigated the alleged violations, the NCAA and UNLV acted much more like adversaries than like partners engaged in a dispassionate search for the truth. The NCAA cannot be regarded as an agent of UNLV for purposes of that proceeding. It is more correctly characterized as an agent of its remaining members which, as competitors of UNLV, had an interest in the effective and evenhanded enforcement of the NCAA’s recruitment standards. Just as a state-compensated public defender acts in a private capacity when he or she represents a private client in a conflict against the State, Polk County v. Dodson, 454 U. S. 312, 320 (1981), the NCAA is properly viewed as a private actor at odds with the State when it represents the interests of its entire membership in an investigation of one public university. The NCAA enjoyed no governmental powers to facilitate its investigation. It had no power to subpoena witnesses, to impose contempt sanctions, or to assert sovereign authority over any individual. Its greatest authority was to threaten sanctions against UNLV, with the ultimate sanction being expulsion of the university from membership. Contrary to the premise of the Nevada Supreme Court’s opinion, the NCAA did not — indeed, could not — directly discipline Tarkanian or any other state university employee. The express terms of the Confidential Report did not demand the suspension unconditionally; rather, it requested “the University... to show cause” why the NCAA should not impose additional penalties if UNLV declines to suspend Tarkanian. App. 180. Even the university’s vice president acknowledged that the Report gave the university options other than suspension: UNLV could have retained Tarkanian and risked additional sanctions, perhaps even expulsion from the NCAA, or it could have withdrawn voluntarily from the Association. Finally, Tarkanian argues that the power of the NCAA is so great that the UNLV had no practical alternative to compliance with its demands. We are not at all sure this is true, but even if we assume, that a private monopolist can impose its will on a state agency by a threatened refusal to deal with it, it does not follow that such a private party is therefore acting under color of state law. Cf. Jackson, 419 U. S., at 351-352 (State’s conferral of monopoly status does not convert private party into state actor). In final analysis the question is whether “the conduct allegedly causing the deprivation of a federal right [can] be fairly attributable to the State.” Lugar, 457 U. S., at 937. It would be ironic indeed to conclude that the NCAA’s imposition of sanctions against UNLV — sanctions that UNLV and its counsel, including the Attorney General of Nevada, steadfastly opposed during protracted adversary proceedings — is fairly attributable to the State of Nevada. It would be more appropriate to conclude that UNLV has conducted its athletic program under color of the policies adopted by the NCAA, rather than that those policies were developed and enforced under color of Nevada law. The judgment of the Nevada Supreme Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. It is so ordered. The trial court found that Tarkanian, as head basketball coach, “is annually paid (in lieu of his salary as a professor) $125,000, plus 10% of the net proceeds received by UNLV for participation in NCAA-authorized championship games, plus fees from basketball camps and clinics, product endorsements, and income realized from writing a newspaper column, speaking on a radio program entitled ‘THE JERRY TARKANIAN SHOW,’ and appearing on a television program bearing the same name.” App. 18. That compensation was “entirely contingent on [Tarkanian’s] continued status as the Head Basketball Coach at UNLV.” As a tenured professor alone, he would have earned about $53,000 a year, the court found. Ibid. That section provides, in part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” The fees were awarded pursuant to 42 U. S. C. § 1988, which authorizes a court in its discretion to award the prevailing party in an action brought under § 1983 a reasonable attorney’s fee as a part of the costs. In this case the under-color-of-law requirement of 42 U. S. C. § 1983 and the state-action requirement of the Fourteenth Amendment are equivalent. See Rendell-Baker v. Kohn, 457 U. S. 830, 838 (1982); see also Lugar v. Edmondson Oil Co., 457 U. S. 922, 928-935 (1982). Although the NCAA’s status as a state or private actor is a novel issue in this Court, lower federal courts have entertained the question for a number of years. Initially, Federal Courts of Appeals held that the NCAA was a state actor for §1983 purposes. E. g., Regents of University of Minnesota v. NCAA, 560 F. 2d 352 (CA8), cert. dism’d, 434 U. S. 978 (1977); Howard University v. NCAA, 166 U. S. App. D. C. 260, 510 F. 2d 213 (1975); Parish v. NCAA, 506 F. 2d 1028 (CA5 1975); Associated Students, Inc. v. NCAA, 493 F. 2d 1251 (CA9 1974) (per curiam). Since our decisions in Lugar v. Edmondson Oil Co., supra, Rendell-Baker v. Kohn, supra, and Blum v. Yaretsky, 457 U. S. 991 (1982), all issued on the same day, lower courts have held to the contrary. E. g., McCormack v. NCAA, 845 F. 2d 1338 (CA5 1988); Karmanos v. Baker, 816 F. 2d 258 (CA6 1987); Graham v. NCAA, 804 F. 2d 953 (CA6 1986); Arlosoroff v. NCAA, 746 F. 2d 1019 (CA4 1984). See Spath v. NCAA, 728 F. 2d 25, 28 (CA1 1984) (dictum). App. 98. Among the sanctions that the Committee may impose “against an institution” are; “(1) Reprimand and censure; “(2) Probation for one year; “(3) Probation for more than one year; “(4) Ineligibility for one or more National Collegiate Championship events; “(5) Ineligibility for invitational and postseason meets and tournaments; “(6) Ineligibility for any television programs subject to the Association’s control or administration; “(7) Ineligibility of the member to vote or its personnel to serve on committees of the Association, or both; “(8) Prohibition against an intercollegiate sports team or teams participating against outside competition for a specified period; “(9) Prohibition against the recruitment of prospective student-athletes for a sport or sports for a specified period....” Id,., at 103-104. Upon finding that misconduct by an employee of a member institution caused NCAA rules to be violated, the Committee may require the member to “show cause why: “(i) a penalty or an additional penalty should not be imposed if, in the opinion of the Committee (or Council), it does not take appropriate disciplinary or corrective action against athletic department personnel involved in the infractions case, any other institutional employee if the circumstances warrant, or representatives of the institution’s athletic interests; or “(ii) a recommendation should not be made to the membership that the institution’s membership in the Association be suspended or terminated if, in the opinion of the Committee (or Council), it does not take appropriate disciplinary or corrective action against the head coach of the sport involved, any other institutional employee if the circumstances warrant, or representatives of the institution’s athletic interests.” Id., at 104. See id., at 141-150, 190, 196. “Most serious is the charge that Coach Tarkanian attempted to frustrate the NCAA’s application of the rules by getting people to ‘change their story’ or to fabricate bodies of countervailing evidence. I am not convinced that the NCAA investigation adequately supports this charge and yet we must remember that the NCAA infractions committee and the NCAA Council, both composed of distinguished scholars, administrators, and lawyers, believed otherwise.” Id., at 72. The court held the NCAA was not liable for fees Tarkanian incurred during the first trial and first appeal to the State Supreme Court. Not only,did those events occur before the NCAA was a party to the litigation, the court explained, but since the trial court’s judgment was reversed, Tarkanian had not prevailed, and thus was not eligible for fees pursuant to § 1988. In a later opinion, the Supreme Court ordered that Tarkanian be allowed additional fees for services performed on his second appeal before that court. “No State shall... deprive any person of life, liberty, or property, without due process of law....” U. S. Const., Amdt. 14. § 1. E. g., Jackson v. Metropolitan Edison Co., 419 U. S. 345, 351 (1974) (“[T]he inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may fairly be treated as that of the State itself”). The situation would, of course, be different if the membership consisted entirely of institutions located within the same State, many of them public institutions created by the same sovereign. See Clark v. Arizona Interscholastic Association, 695 F. 2d 1126 (CA9 1982), cert. denied, 464 U. S. 818 (1983); Louisiana High School Athletic Association v. St. Augustine High School, 396 F. 2d 224 (CA5 1968). The dissent apparently agrees that the NCAA was not acting under color of state law in its relationships with private universities, which constitute the bulk of its membership. See post, at 202, n. 2. Petitioners in Bates, contended that enforcement of disciplinary rules circumscribing attorney advertising violated §§ 1 and 2 of the Sherman Act, 15 U. S. C. §§ 1 and 2, and the First Amendment, made applicable to the States by the Fourteenth Amendment. 433 U. S., at 353. The Court unanimously concluded that state action existed in deciding that by the doctrine enunciated in Parker v. Brown, 317 U. S. 341 (1943), respondent was immune from Sherman Act liability. The Court reached the merits of petitioners’ First and Fourteenth Amendment claims without discussing whether state action existed for Fourteenth Amendment purposes. 433 U. S., at 363-384. Although by no means identical, analysis of the existence of state action justifying immunity from antitrust liability is somewhat similar to the state-action inquiry conducted pursuant to § 1983 and the Fourteenth Amendment. In both contexts, for example, courts examine whether the rule in question is a rule of the State. Compare Hoover v. Ronwin, 466 U. S. 558, 569 (1984) (“[T]he Court has required a showing that the conduct is pursuant to a ‘clearly articulated and affirmatively expressed state policy’ to replace competition with regulation”) (citation omitted), with Lugar, 457 U. S., at 937 (“[T]he deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible”). The degree to which the activities of the state entity and the arguably private entity are intertwined also is pertinent. Compare Hoover, 466 U. S., at 569-570, with Burton v. Wilmington Parking Authority, 365 U. S. 715, 721-726 (1961). Furthermore, the NCAA’s bylaws permit review of penalties, even after they are imposed, “upon a showing of newly discovered evidence which is- directly related to the findings in the case, or that there was a prejudicial error in Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

D

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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Marshall delivered the opinion of the Court. Petitioner brought this suit for post-conviction relief under 28 U. S. C. § 2255, alleging that after his conviction on several narcotics charges he had been improperly denied his right to appeal. Petitioner was sentenced to 11 concurrent 20-year terms on June 20, 1963. Immediately after the sentencing, petitioner’s retained counsel attempted to make a motion requesting leave for petitioner to proceed in forma pauperis. The trial judge cut petitioner’s counsel off, saying that all motions had to be in writing. Without making any further inquiry, he adjourned the court. No written motions were ever filed, and petitioner’s counsel did not submit a notice of appeal within the 10-day period specified by the applicable rule. On August 7, 1963, after the time had expired, petitioner attempted to file a notice of appeal himself. He declared that an oral notice had been given at trial. The trial judge ruled that the expiration of the appeal period deprived the court of jurisdiction. Petitioner then sought relief in the Court of Appeals for the Ninth Circuit. He alleged that he had told his counsel to perfect an appeal, but that counsel had failed to do so. The Ninth Circuit denied petitioner’s motion for lack of jurisdiction, citing United States v. Robinson, 361 U. S. 220 (1960). It also refused habeas corpus. This action was commenced on February 15, 1966. Petitioner alleged that he was of Mexican descent and that his knowledge of English was limited. He further contended that his retained counsel had fraudulently deprived him of his right to appeal. He asked that his conviction be set aside and that he be resentenced so that he could properly take an appeal. The District Court for the Northern District of California denied petitioner’s application and the Ninth Circuit affirmed. 387 F. 2d 117 (1967). Both courts relied on a Ninth Circuit rule requiring applicants in petitioner’s position to disclose what errors they would raise on appeal and to demonstrate that denial of an appeal had caused prejudice. We granted certiorari to resolve a conflict among the circuits about the propriety of such a requirement. 393 U. S. 951 (1968). We reverse. I. As this Court has noted before, “[p] resent federal law has made an appeal from a District Court’s judgment of conviction in a criminal case what is, in effect, a matter of right.” Coppedge v. United States, 369 U. S. 438, 441 (1962). The Ninth Circuit seems to require an applicant under 28 U. S. C. § 2255 to show more than a simple deprivation of this right before relief can be accorded. It also requires him to show some likelihood of success on appeal; if the applicant is unlikely to succeed, the Ninth Circuit would characterize any denial of the right to appeal as a species of harmless error. We cannot subscribe to this approach. Applicants for relief under § 2255 must, if indigent, prepare their petitions without the assistance of counsel. See Johnson v. Avery, 393 U. S. 483, 487-488 (1969). Those whose education has been limited and those, like petitioner, who lack facility in the English language might have grave difficulty in making even a summary statement of points to be raised on appeal. Moreover, they may not even be aware of errors which occurred at trial. They would thus be deprived of their only chance to take an appeal even though they have never had the assistance of counsel in preparing one. Like the approach rejected long ago in Powell v. Alabama, 287 U. S. 45, 69 (1932), the Ninth Circuit’s requirement makes an indigent defendant face “the danger of conviction because he does not know how to establish his innocence.” Moreover, the Ninth Circuit rule would require the sentencing court to screen out supposedly unmeritorious appeals in ways this Court rejected in Coppedge. Those whose right to appeal has been frustrated should be treated exactly like any other appellants; they should not be given an additional hurdle to clear just because their rights were violated at some earlier stage in the proceedings. Accordingly, we hold that the courts below erred in rejecting petitioner’s application for relief because of his failure to specify the points he would raise were his right to appeal reinstated. II. The Government, while not arguing that the courts below properly denied relief on the pleadings, urges us to remand this case for a truncated factual hearing. Drawing upon this Court’s recognition in Machibroda v. United States, 368 U. S. 487, 495 (1962), that the hearing requirement of § 2255 “does not strip the district courts of all discretion to exercise their common sense,” the Government suggests that the District Court be instructed to obtain an affidavit from petitioner’s trial attorney explaining why no notice of appeal was filed. This explanation, together with petitioner’s allegations, would be used to judge the propriety of a hearing. This issue was not present in this case when certiorari was granted and we do not think it is present now. For we think it “just under the circumstances,” 28 U. S. C. § 2106, for us to dispose of petitioner’s arguments finally at this stage. Six years have now elapsed since petitioner was sentenced, and we do not see how further delay and further prolonged proceedings would serve the cause of justice. Moreover, it appears from the trial transcript in this case that the trial judge erroneously failed to advise petitioner of his right to appeal. At the time of trial, Fed. Rule Crim. Proc. 37 (a)(2) required the sentencing judge to inform unrepresented defendants of their right to appeal; the clerk upon request was required to file a notice of appeal for the defendant. Counsel’s attempt to obtain leave for petitioner to proceed in forma pauperis should have put the trial judge on notice that petitioner would be unrepresented in the future. Moreover, unless an appeal was contemplated, there would be no reason to make such a motion. As the trial judge should have recognized, petitioner was therefore precisely the kind of defendant who needed the protection afforded by the rule. Had he known that the clerk would file a notice of appeal for him, he could easily have avoided the difficulties he has faced. At the very least, the trial judge should have inquired into the circumstances surrounding the attempt to make the in forma pauperis motion. His failure to do so effectively deprived petitioner of his right to appeal. Since this deprivation appears on the record before us, we see no need for any factual determinations on remand. Cf. United States v. Smith, 387 F. 2d 268 (C. A. 6th Cir. 1967). The judgment is reversed and the case is remanded to the District Court where petitioner should be resentenced so that he may perfect an appeal in the manner prescribed by the applicable rules. It is so ordered. Fed. Rule Crim. Proc. 37 (a), now Fed. Rule App. Proc. 4 (b). The Ninth Circuit rule originated in two 1964 decisions, Wilson v. United States, 338 F. 2d 54, and Miller v. United States, 339 F. 2d 581. Cf. McGarry v. Fogliani, 370 F. 2d 42 (C. A. 9th Cir. 1966). The First Circuit has adopted an intermediate position; the defendant is not required to show plain reversible error in his application, but the Government may defeat relief by showing that an appeal would be futile. Desmond v. United States, 333 F. 2d 378 (1964). Both petitioner and the Government attempt to find support in the position of the Tenth Circuit. Hannigan v. United States, 341 F. 2d 587 (1965). The Fifth, Sixth, Seventh, Eighth, and District of Columbia Circuits do not require any showing about the issues to be raised on appeal. Camp v. United States, 352 F. 2d 800 (C. A. 5th Cir. 1965); United States v. Smith, 387 F. 2d 268 (C. A. 6th Cir. 1967); Calland v. United States, 323 F. 2d 405 (C. A. 7th Cir. 1963); Williams v. United States, 402 F. 2d 548 (C. A. 8th Cir. 1968); Dillane v. United States, 121 U. S. App. D. C. 354, 350 F. 2d 732 (1965). Rule 37 (a)(2) provided: “When a court after trial imposes sentence upon a defendant not represented by counsel, the defendant shall be advised of his right to appeal and if he so requests, the clerk shall prepare and file forthwith a notice of appeal on behalf of the defendant.” This provision has since been transferred to Rule 32 (a) (2). It now applies to defendants going to trial on a plea of not guilty, whether or not they are represented by counsel. The problem of determining whether to give notice to a person represented at trial, but who may not be represented on appeal, will therefore not recur. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Stevens delivered the opinion of the Court. Deboris Calcano-Martinez, Sergio Madrid, and Fazila Khan are all lawful permanent residents of the United States subject to administratively final orders of removal. They conceded that they are deportable based upon their past criminal convictions, but each filed both a petition for review in the Second Circuit pursuant to 8 U. S. C. § 1252(a)(1) (1994 ed., Supp. V) and a habeas corpus petition in the District Court pursuant to 28 U. S. C. § 2241 in order to challenge the Board of Immigration Appeals’ determination that, as a matter of law, petitioners were ineligible to apply for a discretionary waiver of deportation under former § 212(c) of the Immigration and Nationality Act, 66 Stat. 182, 8 U. S. C. § 1182(c) (1994 ed.). Their petitions for review were consolidated in the Court of Appeals, which subsequently dismissed the petitions for lack of jurisdiction, holding that petitioners could nevertheless pursue their constitutional and statutory claims in a district court habeas action brought pursuant to 28 U. S. C. §2241. 232 F. 3d 328 (CA2 2000). We granted certiorari in this case, 531 U. S. 1108 (2001), and in INS v. St. Cyr, 531 U. S. 1107 (2001), in order to comprehensively consider whether aliens in the petitioners’ position may seek relief in the Court of Appeals (pursuant to 8 U. S. C. § 1252(a)(1)); in the district court (pursuant to 28 U. S. C. § 2241); or not at all. For the reasons stated below and in our opinion in INS v. St. Cyr, ante, p. 289, we agree with the Court of Appeals that it lacks jurisdiction to hear the petitions for direct review at issue in this case and that petitioners must, therefore, proceed with their petitions for habeas corpus if they wish to obtain relief. As part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009-546, Congress adopted new provisions governing the judicial review of immigration orders. See 8 U. S. C. § 1252 (1994 ed., Supp. V) (codifying these procedures). Like the prior statute, the new provision vests the courts of appeals with the authority to consider petitions challenging “final orders” commanding the “removal” of aliens from the United States. § 1252(a)(1). However, unlike the previous provisions, the new statute expressly precludes the courts of appeals from exercising “jurisdiction to review any final order of removal against any alien who is removable by reason of” a conviction for certain criminal offenses, including any aggravated felony. § 1252(a)(2)(C). As petitioners in this case were convicted of “aggravated felonies” within the meaning of the relevant statutes, the plain language of § 1252(a)(2)(C) fairly explicitly strips the courts of appeals of jurisdiction to hear their claims on petitions for direct review. Without much discussion, the Court of Appeals so held. 282 F. 3d, at 342-343. Before this Court, petitioners primarily argue that constitutional considerations and background principles of statutory interpretation require that they be afforded some forum for the adjudication of the merits of their claims. They devote the bulk of their briefs to arguing that the Court of Appeals — motivated by these concerns — properly interpreted IIRIRA’s jurisdiction-stripping provision not to preclude aliens such as petitioners from pursuing habeas relief pursuant to 28 U. S. C. §2241. Brief for Petitioners 12-42, 44-49. In the alternative, they argue that we might construe the same provisions as stripping jurisdiction from the courts of appeals over only some matters, leaving in place their jurisdiction to directly review petitions raising claims previously cognizable under §2241. Id., at 42-44. We agree with petitioners that leaving aliens without a forum for adjudicating claims such as those raised in this case would raise serious constitutional questions. We also agree with petitioners — and the Court of Appeals — that these concerns can best be alleviated by construing the jurisdiction-stripping provisions of that statute not to preclude aliens such as petitioners from pursuing habeas relief pursuant to § 2241. See St. Cyr, ante, at 314. Finding no support in the text or history of § 1252 for concluding that the courts of appeals retain jurisdiction to hear petitions such as those brought in this case, but concluding that Congress has not spoken with sufficient clarity to strip the district courts of jurisdiction to hear habeas petitions raising identical claims, we affirm the judgment of the Court of Appeals in all particulars. It is so ordered. An additional difference between the old and the new statute with regard to petitions for review is one of nomenclature. In keeping with a statute-wide change in terminology, the new provision refers to orders of “removal” rather than orders of “deportation” or “exclusion.” Compare 8 U. S. C. § 1252(a)(1) (1994 ed., Supp. V), with § 1105a (1994 ed.). The scope of this preclusion is not entirely clear. Though the text of the provision is quite broad, it is not without its ambiguities. Throughout this litigation, the Government has conceded that the courts of appeals have the power to hear petitions challenging the factual determinations thought to trigger the jurisdiction-stripping provision (such as whether an individual is an alien and whether he or she has been convicted of an “aggravated felony” within the meaning of the statute). See Brief for Respondent 22-23. In addition, the Government has also conceded that the courts of appeals retain jurisdiction to review “substantial constitutional challenges” raised by aliens who come within the strictures of § 1252(a)(2)(C). See id., at 23-24. As the petitions in this case do not raise any of these types of issues, we need not address this point further. Nonetheless, it remains instructive that the Government acknowledges that background principles of statutory construction and constitutional concerns must be considered in determining the scope of IIRIRA’s jurisdiction-stripping provisions. All three petitioners were convicted of controlled substance offenses for which they served between four months and four years in prison. Each concedes that his or her crime is an “aggravated felony” as defined in 8 U. S. C. § 1101(a)(43), which renders him or her removable pursuant to §1227(a)(2)(A)(iii). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Per Curiam. The judgment of the United States Court of Appeals for the Second Circuit is vacated, and the case is remanded to the United States District Court for the Southern District of New York with instructions to dismiss the cause as moot. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

I

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. DECREE For the purpose of giving effect to the decision of this Court herein, announced June 18, 1982, 457 U. S. 273, rehearing having been denied on September 9, 1982, 458 U. S. 1131, It Is Ordered, Adjudged, and Decreed: 1. As against the State of California and all those claiming under it, the United States holds all right, title and interest in the parcel of land described in the Complaint filed herein and in Exhibit A hereto, the seaward boundary of which shall be the line of mean high water of the Pacific Ocean, as heretofore or hereafter modified by accretion, erosion or reliction, whether attributable to natural or artificial causes; 2. The State of California has no right, title or interest in the said parcel of land, and the State, its agencies, political subdivisions, officers and agents, and all those claiming under them or in privity with them, are enjoined from interfering in any way with the right, title, and interest of the United States in the said parcel; 3. Each party shall bear its own costs. EXHIBIT A All that certain real property in the State of California, County of Humboldt situated in Townships 4 and 5 North, Range 1 West, Humboldt Base & Meridian (“HB&M”) and particularly described as follows: COMMENCING at the east lU comer of Section 31, Township 5 North, Range 1 West HB&M, thence from said point of commencement; N 88°01'20" W, 1981.14 feet along the north line of U. S. Lot 3 of said Section 31, as said lot is shown on the official United States Government Township Plat, to the United States Meander Line of the Pacific Ocean as surveyed by J. S. Murray under contract dated October 18, 1854, and the TRUE POINT OF BEGINNING: thence from said true point of beginning southerly along the shore of the Pacific Ocean with the meander lines of said Section 31 the following (3) courses: 1. S 14°38'54" W, 395.44 feet; 2. S 03°38'54" W, 1863.84 feet; and 3. S 10°21'06" E, 400.10 feet; to the United States Meander Corner on the Township line common to said Townships 4 and 5 North Range 1 West; thence southerly along the shore of the Pacific Ocean with the meander lines of Section 6 of Township 4 North, Range 1 West as surveyed by J. H. Miller under contract dated October 19, 1854, the following (3) courses: 1. S 08°24'17" W, 968.24 feet; 2. S 01°24'17" W, 869.50 feet; and 3. S 11°35'43" E, 646.26 feet more or less to the centerline of the North Jetty at the entrance to Humboldt Bay; thence westerly along said centerline the following (6) courses: 1. N 75°15'58" W, 307.31 feet; 2. N 65°00'58" W, 431.97 feet; 3. N 52°05'24" W, 442.91 feet; 4. N 53°15'24" W, 408.72 feet; 5. N 50°02'05" W, 400.00 feet; 6. N 46°08'24" W, 1427 feet more or less to the line of mean high water of the Pacific Ocean; thence northerly along said line of mean high water to a point which bears N 88°01' 20" W, from the true point of beginning; thence S 88°01'20" E, along the north line of U. S. Lot 3, of Section 31 of Township 5 North, Range 1 West produced, to the true point of beginning. Bearings and distances are based on the State of California Coordinate System (Lambert Conformal Projection), Zone 1, derived locally from that certain map entitled “Record of Survey, Surplus Property,” recorded in Book 29 of Surveys at Page 137, Humboldt County Records as surveyed by the United States Coast Guard; 12th District. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

J

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Breyer delivered the opinion of the Court. The federal courts of appeals review federal sentences and set aside those they find “unreasonable.” See, e. g., United States v. Booker, 543 U. S. 220, 261-263 (2005). Several Circuits have held that, when doing so, they will presume that a sentence imposed within a properly calculated United States Sentencing Guidelines range is a reasonable sentence. See, e. g., 177 Fed. Appx. 357, 358 (CA4 2006) (per curiam) (case below); see also United States Sentencing Commission, Guidelines Manual (Nov. 2006) (USSG or Guidelines). The most important question before us is whether the law permits the courts of appeals to use this presumption. We hold that it does. I A The basic crime in this case concerns two false statements which Victor Rita, the petitioner, made under oath to a federal grand jury. The jury was investigating a gun company called InterOrdnance. Prosecutors believed that buyers of an InterOrdnance kit, called a “PPSH 41 machinegun ‘parts kit,’” could assemble a machinegun from the kit, that those kits consequently amounted to machineguns, and that Inter-Ordnance had not secured proper registrations for the importation of the guns. App. 7, 16-19, 21-22. Rita had bought a PPSH 41 machinegun parts kit. Rita, when contacted by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), agreed to let a federal agent inspect the kit. Id., at 119-120; Supp. App. 5-8. But before meeting with the agent, Rita called InterOrdnance and then sent back the kit. He subsequently turned over to ATF a different kit that apparently did not amount to a maehinegun. App. 23-24,120; Supp. App. 2-5,8-10,13-14. The investigating prosecutor brought Rita before the grand jury, placed him under oath, and asked him about these matters. Rita denied that the Government agent had asked him for the PPSH kit, and also denied that he had spoken soon thereafter about the PPSH kit to someone at InterOrdnance. App. 19, 120-121; Supp. App. 11-12. The Government claimed these statements were false, charged Rita with perjury, making false statements, and obstructing justice, and, after a jury trial, obtained convictions on all counts. App. 7-13, 94, 103. B The parties subsequently proceeded to sentencing. Initially, a probation officer, with the help of the parties, and after investigating the background both of the offenses and of the offender, prepared a presentence report. See Fed. Rules Crim. Proc. 32(c)-(d); 18 U. S. C. § 3552(a). The completed report describes “offense characteristics,” “offender characteristics,” and other matters that might be relevant to the sentence, and then calculates a Guidelines sentence. The report also sets forth factors potentially relevant to a departure from the Guidelines or relevant to the imposition of an other-than-Guidelines sentence. It ultimately makes a sentencing recommendation based on the Guidelines. App. 115-136. In respect to “offense characteristics,” for example, the report points out that the five counts of conviction all stem from a single incident. Id., at 122. Hence, pursuant to the Guidelines, the report, in calculating a recommended sentence, groups the five counts of conviction together, treating them as if they amounted to the single most serious count among them (and ignoring all others). See USSG § 3B1.1. The single most serious offense in Rita's case is “perjury.” The relevant Guideline, §2J1.3(c)(l), instructs the sentencing court (and the probation officer) to calculate the Guidelines sentence for “perjury... in respect to a criminal offense” by applying the Guideline for an “accessory after the fact,” as to that criminal offense, §2X3.1. And that latter Guideline says that the judge, for calculation purposes, should take as a base offense level, a level that is “6 levels lower than the offense level for the underlying offense” (emphasis added) (the offense that the perjury may have helped someone commit). Here the “underlying offense” consisted of InterOrdnance’s possible violation of the machinegun registration law. App. 124; USSG §2M5.2 (providing sentence for violation of 22 U. S. C. § 2778(b)(2), importation of defense articles without authorization). The base offense level for the gun registration crime is 26. See USSG §2M5.2. Six levels less is 20. And 20, says the presentence report, is the base offense level applicable to Rita for purposes of Guidelines sentence calculation. App. 45. The presentence report next considers Rita’s “Criminal History.” Id., at 125. Rita was convicted in May 1986, and sentenced to five years’ probation for making false statements in connection with the purchase of firearms. Because this conviction took place more than 10 years before the present offense, it did not count against Rita. And because Rita had no other relevant convictions, the Guidelines considered him as having no “criminal history points.” Ibid. The report consequently places Rita in criminal history category I, the lowest category for purposes of calculating a Guidelines’ sentence. The report goes on to describe other “Offender Characteristics.” Id., at 126. The description includes Rita’s personal and family data, Rita’s physical condition (including a detailed description of ailments), Rita’s mental and emotional health, the lack of any history of substance abuse, Rita’s vocational and nonvocational education, and Rita’s employment record. It states that he served in the Armed Forces for over 25 years, on active duty and in the Reserve. During that time he received 35 commendations, awards, or medals of different kinds. The report analyzes Rita’s financial condition. Id., at 126-132. Ultimately, the report calculates the Guidelines sentencing range. Id., at 132. The Guidelines specify for base level 20, criminal history category I, a sentence of 33-to-41 months’ imprisonment. Ibid. The report adds that there “appears to be no circumstance or combination of circumstances that warrant a departure from the prescribed sentencing guidelines.” Id., at 133. C At the sentencing hearing, both Rita and the Government presented their sentencing arguments. Each side addressed the report. Rita argued for a sentence outside (and lower than) the recommended Guidelines 33-to-41 month range. The judge made clear that Rita's argument for a lower sentence could take either of two forms. First, Rita might argue within the Guidelines’ framework, for a departure from the applicable Guidelines range on the ground that his circumstances present an “atypical case” that falls outside the “heartland” to which the United States Sentencing Commission intends each individual Guideline to apply. USSG § 5K2.0(a)(2). Second, Rita might argue that, independent of the Guidelines, application of the sentencing factors set forth in 18 U. S. C. § 3553(a) (2000 ed. and Supp. IV) warrants a lower sentence. See Booker, 543 U. S., at 259-260. Thus, the judge asked Rita’s counsel, “Are you going to put on evidence to show that [Rita] should be getting a downward departure, or under 3553, your client would be entitled to a different sentence than he should get under sentencing guidelines?” App. 52. And the judge later summarized: “[Y]ou’re asking for a departure from the guidelines or a sentence under 3553 that is lower than the guidelines, and here are the reasons: “One, he is a vulnerable defendant because he’s been involved in [government criminal justice] work which has caused people to become convicted criminals who are in prison and there may be retribution against him. “Two, his military experience....” Id., at 64-65. Counsel agreed, while adding that Rita’s poor physical condition constituted a third reason. And counsel said that he rested his claim for a lower sentence on “[j]ust [those] three” special circumstances, “[p]hysical condition, vulnerability in prison and the military service.” Id., at 65. Rita presented evidence and argument related to these three factors. The Government, while not asking for a sentence higher than the report’s recommended Guidelines range, said that Rita’s perjury had interfered with the Government’s potential “obstruction of justice” claim against InterOrdnance and that Rita, as a former Government criminal justice employee, should have known better than to commit perjury. Id., at 74-77. The sentencing judge asked questions about each factor. After hearing the arguments, the judge concluded that he was “unable to find that the [report’s recommended] sentencing guideline range... is an inappropriate guideline range for that, and under 3553... the public needs to be protected if it is true, and I must accept as true the jury verdict.” Id., at 87. The court concluded: “So the Court finds that it is appropriate to enter” a sentence at the bottom of the Guidelines range, namely, a sentence of imprisonment “for a period of 33 months.” Ibid. D On appeal, Rita argued that his 33-month sentence was “unreasonable” because (1) it did not adequately take account of “the defendant’s history and characteristics,” and (2) it “is greater than necessary to comply with the purposes of sentencing set forth in 18 U. S. C. § 3553(a)(2).” Brief for Appellant in No. 05-4674 (CA4), pp. i, 8. The Fourth Circuit observed that it must set aside a sentence that is not “reasonable.” The Circuit stated that “a sentence imposed within the properly calculated Guidelines range... is presumptively reasonable.” 177 Fed. Appx., at 358 (internal quotation marks and citations omitted). It added that “while we believe that the appropriate circumstances for imposing a sentence outside the guideline range will depend on the facts of individual cases, we have no reason to doubt that most sentences will continue to fall within the applicable guideline range.” The Fourth Circuit then rejected Rita’s arguments and upheld the sentence. Ibid, (internal quotation marks omitted). E Rita petitioned for a writ of certiorari. He pointed out that the Circuits are split as to the use of a presumption of reasonableness for within-Guidelines sentences. Compare United States v. Dorcely, 454 F. 3d 366, 376 (CADC 2006) (uses presumption); United States v. Green, 436 F. 3d 449, 457 (CA4 2006) (same); United States v. Alonzo, 435 F. 3d 551, 554 (CA5 2006) (same); United States v. Williams, 436 F. 3d 706, 708 (CA6 2006) (same); United States v. Mykytiuk, 415 F. 3d 606, 608 (CA7 2005) (same); United States v. Lincoln, 413 F. 3d 716, 717 (CA8 2005) (same); and United States v. Kristl, 437 F. 3d 1050, 1053-1054 (CA10 2006) (per curiam) (same), with United States v. Jimenez-Beltre, 440 F. 3d 514, 518 (CA1 2006) (en banc) (does not use presumption); United States v. Fernandez, 443 F. 3d 19, 27 (CA2 2006) (same); United States v. Cooper, 437 F. 3d 324, 331 (CA3 2006) (same); and United States v. Talley, 431 F. 3d 784, 788 (CA11 2005) (per curiam) (same). We consequently granted Rita’s petition. We agreed to decide whether a court of appeals may afford a “presumption of reasonableness” to a “within-Guidelines” sentence. We also agreed to decide whether the District Court properly analyzed the relevant sentencing factors and whether, given the record, the District Court’s ultimate choice of a 33-month sentence was “unreasonable.” II The first question is whether a court of appeals may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the Sentencing Guidelines. We conclude that it can. A For one thing, the presumption is not binding. It does not, like a trial-related evidentiary presumption, insist that one side, or the other, shoulder a particular burden of persuasion or proof lest they lose their case. Cf., e. g., Raytheon Co. v. Hernandez, 540 U. S. 44, 49-50, n. 3 (2003) (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133, 143 (2000), and McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802 (1973)). Nor does the presumption reflect strong judicial deference of the kind that leads appeals courts to grant greater factfinding leeway to an expert agency than to a district judge. Rather, the presumption reflects the fact that, by the time an appeals court is considering a within-Guidelines sentence on review, both the sentencing judge and the Sentencing Commission will have reached the same conclusion as to the proper sentence in the particular case. That double determination significantly increases the likelihood that the sentence is a reasonable one. Further, the presumption reflects the nature of the Guidelines-writing task that Congress set for the Commission and the manner in which the Commission carried out that task. In instructing both the sentencing judge and the Commission what to do, Congress referred to the basic sentencing objectives that the statute sets forth in 18 U. S. C. § 3553(a) (2000 ed. and Supp. IV). That provision tells the sentencing judge to consider (1) offense and offender characteristics; (2) the need for a sentence to reflect the basic aims of sentencing, namely, (a) “just punishment” (retribution), (b) deterrence, (c) incapacitation, (d) rehabilitation; (3) the sentences legally available; (4) the Sentencing Guidelines; (5) Sentencing Commission policy statements; (6) the need to avoid unwarranted disparities; and (7) the need for restitution. The provision also tells the sentencing judge to “impose a sentence sufficient, but not greater than necessary, to comply with” the basic aims of sentencing as set out above. Congressional statutes then tell the Commission to write Guidelines that will carry out these same § 3553(a) objectives. Thus, 28 U. S. C. § 991(b) indicates that one of the Commission’s basic objectives is to “assure the meeting of the purposes of sentencing as set forth in [§ 3553(a)(2)].” The provision adds that the Commission must seek to “provide certainty and fairness” in sentencing, to “avoi[d] unwarranted sentencing disparities,” to “maintai[n] sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices,” and to “reflect, to the extent practicable, [sentencing-relevant] advancement in [the] knowledge of human behavior.” Later provisions specifically instruct the Commission to write the Guidelines with reference to this statement of purposes, the statement that itself refers to § 3553(a). See 28 U. S. C. §§ 994(f), 994(m). The upshot is that the sentencing statutes envision both the sentencing judge and the Commission as carrying out the same basic § 3553(a) objectives, the one, at retail, the other at wholesale. The Commission has made a serious, sometimes controversial, effort to carry out this mandate. The Commission, in describing its Guidelines-writing efforts, refers to these same statutory provisions. It says that it has tried to embody in the Guidelines the factors and considerations set forth in § 3553(a). The Commission’s introductory statement recognizes that Congress “foresees guidelines that will further the basic purposes of criminal punishment, i. e., deterring crime, incapacitating the offender, providing just punishment, and rehabilitating the offender.” USSG § 1A1.1, intro, to comment., pt. A, ¶2 (The Statutory Mission). It adds that Congress “sought uniformity in sentencing by narrowing the wide disparity in sentences imposed by different federal courts for similar criminal conduct,” as well as “proportionality in sentencing through a system that imposes appropriately different sentences for criminal conduct of different severity.” Id., ¶ 3, at 2 (The Basic Approach). The Guidelines commentary explains how, despite considerable disagreement within the criminal justice community, the Commission has gone about writing Guidelines that it intends to embody these ends. It says, for example, that the goals of uniformity and proportionality often conflict. The commentary describes the difficulties involved in developing a practical sentencing system that sensibly reconciles the two ends. It adds that a “philosophical problem arose when the Commission attempted to reconcile the differing perceptions of the purposes of criminal punishment.” Some would emphasize moral culpability and “just punishment”; others would emphasize the need for “crime control.” Rather than choose among differing practical and philosophical objectives, the Commission took an “empirical approach,” beginning with an empirical examination of 10,000 presentence reports setting forth what judges had done in the past and then modifying and adjusting past practice in the interests of greater rationality, avoiding inconsistency, complying with congressional instructions, and the like. Id., ¶ 3, at 3. The Guidelines as written reflect the fact that the Sentencing Commission examined tens of thousands of sentences and worked with the help of many others in the law enforcement community over a long period of time in an effort to fulfill this statutory mandate. They also reflect the fact that different judges (and others) can differ as to how best to reconcile the disparate ends of punishment. The Commission’s work is ongoing. The statutes and the Guidelines themselves foresee continuous evolution helped by the sentencing courts and courts of appeals in that process. The sentencing courts, applying the Guidelines in individual cases, may depart (either pursuant to the Guidelines or, since Booker, by imposing a non-Guidelines sentence). The judges will set forth their reasons. The courts of appeals will determine the reasonableness of the resulting sentence. The Commission will collect and examine the results. In doing so, it may obtain advice from prosecutors, defenders, law enforcement groups, civil liberties associations, experts in penology, and others. And it can revise the Guidelines accordingly. See generally 28 U. S. C. § 994(p) and note following § 994 (Commission should review and amend Guidelines as necessary, and Congress has power to revoke or amend Guidelines); Mistretta v. United States, 488 U. S. 361, 393-394 (1989); USSG §1B1.10(c) (listing 24 amendments promulgated in response to evolving sentencing concerns); USSG § 1A1.1, comment. The result is a set of Guidelines that seek to embody the § 3553(a) considerations, both in principle and in practice. Given the difficulties of doing so, the abstract and potentially conflicting nature of § 3553(a)’s general sentencing objectives, and the differences of philosophical view among those who work within the criminal justice community as to how best to apply general sentencing objectives, it is fair to assume that the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve §3553(a)’s objectives. An individual judge who imposes a sentence within the range recommended by the Guidelines thus makes a decision that is fully consistent with the Commission’s judgment in general. Despite Justice Souter’s fears to the contrary, post, at 390-392 (dissenting opinion), the courts of appeals’ “reasonableness” presumption, rather than having independent legal effect, simply recognizes the real-world circumstance that when the judge’s discretionary decision accords with the Commission’s view of the appropriate application of § 3553(a) in the mine run of cases, it is probable that the sentence is reasonable. Indeed, even the Circuits that have declined to adopt a formal presumption also recognize that a Guidelines sentence will usually be reasonable, because it reflects both the Commission’s and the sentencing court’s judgment as to what is an appropriate sentence for a given offender. See Fernandez, 443 F. 3d, at 27; Cooper, 437 F. 3d, at 331; Talley, 431 F. 3d, at 788. We repeat that the presumption before us is an appellate court presumption. Given our explanation in Booker that appellate “reasonableness” review merely asks whether the trial court abused its discretion, the presumption applies only on appellate review. The sentencing judge, as a matter of process, will normally begin by considering the presentence report and its interpretation of the Guidelines. 18 U. S. C. § 3552(a); Fed. Rule Crim. Proc. 32. He may hear arguments by prosecution or defense that the Guidelines sentence should not apply, perhaps because (as the Guidelines themselves foresee) the case at hand falls outside the “heartland” to which the Commission intends individual Guidelines to apply, USSG §5K2.0, perhaps because the Guidelines sentence itself fails properly to reflect § 3553(a) considerations, or perhaps because the case warrants a different sentence regardless, see Rule 32(f). Thus, the sentencing court subjects the defendant’s sentence to the thorough adversarial testing contemplated by federal sentencing procedure. See Rules 32(f), (h), (i)(1)(C), and (i)(1)(D); see also Burns v. United States, 501 U. S. 129, 136 (1991) (recognizing importance of notice and meaningful opportunity to be heard at sentencing). In determining the merits of these arguments, the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply. Booker, 543 U. S., at 259-260. B Rita and his supporting amici make two further arguments against use of the presumption. First, Rita points out that many individual Guidelines apply higher sentences in the presence of special facts, for example, brandishing a weapon. In many cases, the sentencing judge, not the jury, will determine the existence of those facts. A pro-Guidelines “presumption of reasonableness” will increase the likelihood that courts of appeals will affirm such sentences, thereby increasing the likelihood that sentencing judges will impose such sentences. For that reason, Rita says, the presumption raises Sixth Amendment “concerns.” Brief for Petitioner 28. In our view, however, the presumption, even if it increases the likelihood that the judge, not the jury, will find “sentencing facts,” does not violate the Sixth Amendment. This Court’s Sixth Amendment cases do not automatically forbid a sentencing court to take account of factual matters not determined by a jury and to increase the sentence in consequence. Nor do they prohibit the sentencing judge from taking account of the Sentencing Commission’s factual findings or recommended sentences. See Cunningham v. California, 549 U. S. 270, 281-282 (2007) (citing Booker, supra, at 243-244; Blakely v. Washington, 542 U. S. 296, 304-305 (2004); Ring v. Arizona, 536 U. S. 584, 602 (2002); and Apprendi v. New Jersey, 530 U. S. 466, 471 (2000)). The Sixth Amendment question, the Court has said, is whether the law forbids a judge to increase a defendant’s sentence unless the judge finds facts that the jury did not find (and the offender did not concede). Blakely, supra, at 303-304 (“When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment and the judge exceeds his proper authority” (internal quotation marks and citation omitted)); see Cunningham, supra, at 283-284 (discussing Blakely) (“The judge could not have sentenced Blakely above the standard range without finding the additional fact of deliberate cruelty,” “[b]ecause the judge in Blakely’s case could not have imposed a sentence outside the standard range without finding an additional fact, the top of that range... was the relevant” maximum sentence for Sixth Amendment purposes); Booker, 543 U. S., at 244 (“Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt”); id., at 232 (discussing Blakely) (“We rejected the State’s argument that the jury verdict was sufficient to authorize a sentence within the general 10-year sentence for class B felonies, noting that under Washington law, the judge was required to find additional facts in order to impose the greater 90-month sentence” (emphasis in original)). A nonbinding appellate presumption that a Guidelines sentence is reasonable does not require the sentencing judge to impose that sentence. Still less does it prohibit the sentencing judge from imposing a sentence higher than the Guidelines provide for the jury-determined facts standing alone. As far as the law is concerned, the judge could disregard the Guidelines and apply the same sentence (higher than the statutory minimum or the bottom of the unenhanced Guidelines range) in the absence of the special facts (say, gun brandishing) which, in the view of the Sentencing Commission, would warrant a higher sentence within the statutorily permissible range. Thus, our Sixth Amendment cases do not forbid appellate court use of the presumption. Justice Scalia concedes that the Sixth Amendment concerns he foresees are not presented by this case. Post, at 373-374 (opinion concurring in part and concurring in judgment). And his need to rely on hypotheticals to make his point is consistent with our view that the approach adopted here will not “raise a multitude of constitutional problems.” Clark v. Martinez, 543 U. S. 371, 380-381 (2005). Similarly, Justice Scalia agrees that we have never held that “the Sixth Amendment prohibits judges from ever finding any facts” relevant to sentencing. Post, at 373. In sentencing, as in other areas, district judges at times make mistakes that are substantive. At times, they will impose sentences that are unreasonable. Circuit courts exist to correct such mistakes when they occur. Our decision in Booker recognized as much, 543 U. S., at 260-264. Booker held unconstitutional that portion of the Guidelines that made them mandatory. Id., at 233-234, 243-244. It also recognized that when district courts impose discretionary sentences, which are reviewed under normal appellate principles by courts of appeals, such a sentencing scheme will ordinarily raise no Sixth Amendment concern. Ibid.; see id., at 233 (opinion for the Court by Stevens, J.) (“Indeed, everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the [federal sentencing statute] the provisions that make the Guidelines binding on district judges”). That being so, our opinion in Booker made clear that today’s holding does not violate the Sixth Amendment. Rita may be correct that the presumption will encourage sentencing judges to impose Guidelines sentences. But we do not see how that fact could change the constitutional calculus. Congress sought to diminish unwarranted sentencing disparity. It sought a Guidelines system that would bring about greater fairness in sentencing through increased uniformity. The fact that the presumption might help achieve these congressional goals does not provide cause for holding the presumption unlawful as long as the presumption remains constitutional. And, given our case law, we cannot conclude that the presumption itself violates the Sixth Amendment. The fact that we permit courts of appeals to adopt a presumption of reasonableness does not mean that courts may adopt a presumption of unreasonableness. Even the Government concedes that appellate courts may not presume that every variance from the advisory Guidelines is unreasonable. See Brief for United States 34-35. Several courts of appeals have also rejected a presumption of unreasonableness. See, e. g., United States v. Howard, 454 F. 3d 700, 703 (CA7 2006); United States v. Matheny, 450 F. 3d 633, 642 (CA6 2006); United States v. Myers, 439 F. 3d 415, 417 (CA8 2006); United States v. Moreland, 437 F. 3d 424, 433 (CA4 2006). However, a number of Circuits adhere to the proposition that the strength of the justification needed to sustain an outside-Guidelines sentence varies in proportion to the degree of the variance. See, e. g., United States v. Smith, 445 F. 3d 1, 4 (CA1 2006); Moreland, supra, at 434; United States v. Armendariz, 451 F. 3d 352, 358 (CA5 2006); United States v. Davis, 458 F. 3d 491, 496 (CA6 2006); United States v. Dean, 414 F. 3d 725, 729 (CA7 2005); United States v. Dalton, 404 F. 3d 1029, 1033 (CA8 2005); United States v. Bishop, 469 F. 3d 896, 907 (CA10 2006); United States v. Crisp, 454 F. 3d 1285, 1291-1292 (CA11 2006). We will consider that approach next Term in Gall v. United States, No. 06-7949, cert. granted, post, p. 1113. Second, Rita and his amici claim that use of a pro-Guidelines presumption on appeal conflicts with Congress’ insistence that sentencing judges apply the factors set forth in 18 U. S. C. § 3553(a) (2000 ed., Supp. IV) (and that the resulting sentence be “sufficient, but not greater than necessary, to comply with the purposes” of sentencing set forth in that statute). We have explained above, however, why we believe that, where judge and Commission both determine that the Guidelines sentence is an appropriate sentence for the case at hand, that sentence likely reflects the § 3553(a) factors (including its “not greater than necessary” requirement). See supra, at 348. This circumstance alleviates any serious general conflict between § 3553(a) and the Guidelines, for the purposes of appellate review. And, for that reason, we find that nothing in § 3553(a) renders use of the presumption unlawful. Ill We next turn to the question whether the District Court properly analyzed the relevant sentencing factors. In particular, Rita argues that the court took inadequate account of § 3553(c) (2000 ed., Supp. IV), a provision that requires a sentencing judge, “at the time of sentencing,” to “state in open court the reasons for its imposition of the particular sentence.” In our view, given the straightforward, conceptually simple arguments before the judge, the judge’s statement of reasons here, though brief, was legally sufficient. The statute does call for the judge to “state” his “reasons.” And that requirement reflects sound judicial practice. Judicial decisions are reasoned decisions. Confidence in a judge's use of reason underlies the public’s trust in the judicial institution. A public statement of those reasons helps provide the public with the assurance that creates that trust. That said, we cannot read the statute (or our precedent) as insisting upon a full opinion in every case. The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances. Sometimes a judicial opinion responds to every argument; sometimes it does not; sometimes a judge simply writes the word “granted” or “denied” on the face of a motion while relying upon context and the parties’ prior arguments to make the reasons clear. The law leaves much, in this respect, to the judge’s own professional judgment. In the present context, a statement of reasons is important. The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority. See, e. g., United States v. Taylor, 487 U. S. 326, 336-337 (1988). Nonetheless, when a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation. Circumstances may well make clear that the judge rests his decision upon the Commission’s own reasoning that the Guidelines sentence is a proper sentence (in terms of § 3553(a) and other congressional mandates) in the typical case, and that the judge has found that the case before him is typical. Unless a party contests the Guidelines sentence generally under § 3553(a) — that is, argues that the Guidelines reflect an unsound judgment, or, for example, that they do not generally treat certain defendant characteristics in the proper way — or argues for departure, the judge normally need say no more. Cf. § 3553(c)(2) (2000 ed., Supp. IV). (Although, often at sentencing a judge will speak at length to a defendant, and this practice may indeed serve a salutary purpose.) Where the defendant or prosecutor presents nonfrivolous reasons for imposing a different sentence, however, the judge will normally go further and explain why he has rejected those arguments. Sometimes the circumstances will call for a brief explanation; sometimes they will call for a lengthier explanation. Where the judge imposes a sentence outside the Guidelines, the judge will explain why he has done so. To our knowledge, an ordinary explanation of judicial reasons as to why the judge has, or has not, applied the Guidelines triggers no Sixth Amendment “jury trial” requirement. Cf. Booker, 543 U. S., at 233 (“For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant”), and id., at 242 (requirement of finding, not articulation of it, creates Sixth Amendment problem). By articulating reasons, even if brief, the sentencing judge not only assures reviewing courts (and the public) that the sentencing process is a reasoned process but also helps that process evolve. The sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than the Commission or the appeals court. That being so, his reasoned sentencing judgment, resting upon an effort to filter the Guidelines’ general advice through §3553(a)’s list of factors, can provide relevant information to both the court of appeals and ultimately the Sentencing Commission. The reasoned responses of these latter institutions to the sentencing judge’s explanation should help the Guidelines constructively evolve over time, as both Congress and the Commission foresaw. See generally supra, at 351. In the present case the sentencing judge’s statement of reasons was brief but legally sufficient. Rita argued for a downward departure from the 33-to-41 month Guidelines sentence on the basis of three sets of special circumstances: health, fear of retaliation in prison, and military record. See App. 40-47. He added Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Mr. Justice Powell delivered the opinion of the Court. The question presented in this class action is whether a proportionate share of the fees awarded to lawyers who represented the successful class may be assessed against the unclaimed portion of the fund created by a judgment. I In March 1966, The Boeing Co. called for the redemption of certain convertible debentures. Boeing announced the call through newspaper notices and mailings to investors who had registered their debentures. The notices, given in accordance with the indenture agreement, recited that each $100 amount of principal could be redeemed for $103.25 or converted into two shares of the company’s common stock. They set March 29 as the deadline for the exercise of conversion rights. Two shares of the company’s common stock on that date were worth $316.25. When the deadline expired, the holders of debentures with a face value of $1,544,300 had not answered the call. These investors were left with the right to redeem their debentures for slightly more than face value. Van Gemert and several other nonconverting debenture holders brought a class action against Boeing in the United States District Court for the Southern District of New York. They claimed that Boeing had violated federal securities statutes as well as the law of New York by failing to give them reasonably adequate notice of the redemption. As damages, they sought the difference between the amount for which their debentures could be redeemed and the value of the shares into which the debentures could have been converted. The District Court dismissed the action on the ground that Boeing had given its debenture holders the notice required by the indenture agreement. The Court of Appeals for the Second Circuit reversed and remanded. It held that, under the New York law of contracts, the indenture agreement contained an implied obligation to give debenture holders reasonable notice of a redemption. The court concluded that the notice actually given was inadequate. 520 F. 2d 1373, cert. denied, 423 U. S. 947 (1975). On remand, the District Court awarded as damages the difference between the redemption price of the outstanding debentures and the price at which two shares of Boeing’s common stock traded on the last day for exercising conversion rights. The court, however, refused to assess prejudgment interest against Boeing. There followed a second appeal. The class claimed that the stock should have been valued as of a later date and that Boeing was liable for prejudgment interest. Class members who had filed individual claims also contended that they were entitled to receive pro rata shares of any unclaimed damages. At the least, they argued, they should receive enough of the unclaimed money to pay their legal expenses. The Court of Appeals found the class entitled to prejudgment interest on the award, but it approved the valuation date. The court also concluded that class members who proved their individual claims should not share in the unclaimed portion of the judgment. Allowing these class members to receive a proportionate part of the unclaimed money, the court held, would create the sort of “fluid class” recovery rejected in Eisen v. Carlisle & Jacquelin, 479 F. 2d 1005 (CA2 1973), vacated and remanded on other grounds, 417 U. S. 156 (1974). Such a recovery would expropriate funds belonging to class members who had not asserted their claims and give a windfall to those who had claimed. Finally, the court decided that claiming class members could not use the unclaimed portion of the judgment to defray their legal expenses. Since Boeing could have a right to money that never was claimed, the court thought that awarding attorney’s fees from the remaining funds might shift fees to the losing party in violation of the American rule reaffirmed in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240 (1975). 553 F. 2d 812 (1977). On the second remand, the District Court entered the judgment now at issue. The court first established the amount of Boeing’s liability to the class as a whole. It provided that respondents, “in behalf of all members of the plaintiff class, . . . shall recover as their damages . . . the principal sum of $3,289,359 together with [prejudgment] interest. . . .” App. 40a. The court then fixed the amount that each member of the class could recover on a principal amount of $100 in debentures. Each individual recovery was to carry its proportionate share of the total amount allowed for attorney’s fees, expenses, and disbursements. That share, the court declared, “shall bear the same ratio to all such fees, expenses and disbursements as such class member’s recovery shall bear to the total recovery” awarded the class. Id., at 40ar41a. Finally, the court ordered Boeing to deposit the amount of the judgment into escrow at a commercial bank, and it appointed a Special Master to administer the judgment and pass on the validity of individual claims. The court retained jurisdiction pending implementation of its judgment. Boeing appealed only one provision of the judgment. It claimed that attorney’s fees could not be awarded from the unclaimed portion of the judgment fund for at least two reasons. First, the equitable doctrine that allows the assessment of attorney’s fees against a common fund created by the lawyers’ efforts was inapposite because the money in the judgment fund would not benefit those class members who failed to claim it. Second, because Boeing had a colorable claim for the return of the unclaimed money, awarding attorney’s fees from those funds might violate the American rule against shifting fees to the losing party. Therefore, Boeing contended, the District Court should award attorney’s fees from only the portion of the fund actually claimed by class members. A panel of the Court of Appeals agreed with Boeing, 573 F. 2d 733 (1978), but the court en banc affirmed the District Court’s judgment, 590 F. 2d 433 (1978). The Court of Appeals en banc found that each class member had a “present vested interest in the class recovery” and that each could collect his share of the judgment upon request. Thus, the court held, absentee class members had received a benefit within the meaning of the common-fund doctrine. Id., at 439. The court also found its holding consistent with the American rule. It noted that lawyers for the class would receive their fees “from the amount for which Boeing has already been held liable. There is no 'surcharge’ on the defeated litigant.” Id., at 441-442. We granted certiorari, 441 U. S. 942 (1979), and we now affirm. II Since the decisions in Trustees v. Greenough, 105 U. S. 527 (1882), and Central Railroad & Banking Co. v. Pettus, 113 U. S. 116 (1885), this Court has recognized consistently that a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole. See Mills v. Electric Auto-Lite Co., 396 U. S. 375 (1970); Sprague v. Ticonic National Bank, 307 U. S. 161 (1939); cf. Hall v. Cole, 412 U. S. 1 (1973). The common-fund doctrine reflects the traditional practice in courts of equity, Trustees v. Green-ough, supra, at 532-537, and it stands as a well-recognized exception to the general principle that requires every litigant to bear his own attorney’s fees, Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S., at 257-258. The doctrine rests on the perception that persons who obtain the benefit of a lawsuit without contributing to its cost are unjustly enriched at the successful litigant’s expense. See, e. g., Mills v. Electric Auto-Lite Co., 396 U. S., at 392. Jurisdiction over the fund involved in the litigation allows a court to prevent this inequity by assessing attorney’s fees against the entire fund, thus spreading fees proportionately, among those benefited by the suit. See id., at 394. In Alyeska Pipeline Service Co. v. Wilderness Society, supra, we noted the features that distinguished our common-fund cases from cases where the shifting of fees was inappropriate. First, the classes of persons benefited by the lawsuits “were small in number and easily identifiable.” 421 U. S., at 265, n. 39. Second, “[t]he benefits could be traced with some accuracy. . . .” Ibid. Finally, “there was reason for confidence that the costs [of litigation] could indeed be shifted with some exactitude to those benefiting.” Ibid. Those characteristics are not present where litigants simply vindicate a general social grievance. Id., at 263-267, and n. 39. On the other hand, the criteria are satisfied when each member of a certified class has an undisputed and mathematically ascertainable claim to part of a lump-sum judgment recovered on his behalf. Once the class representatives have established the defendant’s liability and the total amount of damages, members of the class can obtain their share of the recovery simply by proving their individual claims against the judgment fund. This benefit devolves with certainty upon the identifiable persons whom the court has certified as members of the class. Although the full value of the benefit to each absentee member cannot be determined until he presents his claim, a fee awarded against the entire judgment fund will shift the costs of litigation to each absentee in the exact proportion that the value of his claim bears to the total recovery. See generally Dawson, Lawyers and Involuntary Clients in Public Interest Litigation, 88 Harv. L. Rev. 849, 916-922 (1975). In this case, the named respondents have recovered a determinate fund for the benefit of every member of the class whom they represent. Boeing did not appeal the judgment awarding the class a sum certain. Nor does Boeing contend that any class member was uninjured by the company’s failure adequately to inform him of his conversion rights. Thus, the damage to each class member is simply the difference between the redemption price of his debentures and the value of the common stock into which they could have been converted. To claim their logically ascertainable shares of the judgment fund, absentee class members need prove only their membership in the injured class. Their right to share the harvest of the lawsuit upon proof of their identity, whether or not they exercise it, is a benefit in the fund created by the efforts of the class representatives and their counsel. Unless absentees contribute to the payment of attorney’s fees incurred on their behalves, they will pay nothing for the creation of the fund and their representatives may bear additional costs. The judgment entered by the District Court and affirmed by the Court of Appeals rectifies this inequity by requiring every member of the class to share attorney’s fees to the same extent that he can share the recovery. Since the benefits of the class recovery have been “traced with some accuracy” and the costs of recovery have been “shifted with some exactitude to those benefiting,” Alyeska Pipeline Service Co. v. Wilderness Society, supra, at 265, n. 39, we conclude that the attorney’s fee award in this case is a proper application of the common-fund doctrine. Ill The common-fund doctrine, as applied in this case, is entirely consistent with the American rule against taxing the losing party with the victor’s attorney’s fees. See Alyeska Pipeline Service Co. v. Wilderness Society, supra, at 247. The District Court’s judgment assesses attorney’s fees against a fund awarded to the prevailing class. Since there was no appeal from the judgment that quantified Boeing’s liability, Boeing presently has no interest in any part of the fund. The members of the class, whether or not they assert their rights, are at least the equitable owners of their respective shares in the recovery. Any right that Boeing may establish to the return of money eventually unclaimed is contingent on the failure of absentee class members to exercise their present rights of possession. Although Boeing itself cannot be obliged to pay fees awarded to the class lawyers, its latent claim against unclaimed money in the judgment fund may not defeat each class member’s equitable obligation to share the expenses of litigation. The judgment of the Court of Appeals is Affirmed. The relevant paragraph of the District Court’s judgment declares in full: “ORDERED, ADJUDGED AND DECREED that plaintiffs in behalf of all members of the plaintiff class, which consists of all holders on March 29, 1966 of 4%% Convertible Subordinated Debentures of the Boeing Company who failed to exercise their conversion right before it terminated on March 29, 1966, shall recover as their damages herein from the defendants the principal sum of $3,289,359 together with interest thereon at the legal rates fixed by the State of New York, N. Y. C. P. L. R. § 5001 (a) from March 9, 1966 to the date of this judgment, with costs to be taxed. . . .” App. 40a. The class lawyers have requested fees totaling about $2 million. 573 F. 2d 733, 735, n. 3 (1978) (panel opinion). Interest on the principal sum of $3,289,359 from the conversion deadline to the date of judgment amounted to $2,459,647, bringing the judgment to $5,749,006. With income earned on investments and other additions, the fund now totals over $7 million. Brief for Special Master as Amicus Curiae 4^6. The District Court gave the Special Master a broad mandate to “direct the parties in the necessary ministerial steps to effectuate the Judgment, receive all proofs of claim to participate in the Fund established by the Judgment, pass on the validity of same, direct the giving of notices to interested persons of hearings on disputed claims, conduct the necessary hearings, submit reports thereon and- in general supervise the administration of the Judgment and decide all disputed questions of law and fact connected therewith subject to confirmation by the Court. . . .” App. 42a. In the year following his appointment, the Special Master mailed notices to debenture holders who could be identified and published notices in two national newspapers. By July 15, 1978, the Special Master had received claims accounting for $290,000 worth of the $1,544,300 in unconverted debentures. Brief for Special Master as Amicus Curiae 11. The District Court then extended the time for filing proofs of claims, and the Master renewed his efforts to locate holders of the remaining debentures. Further research in files kept by the trustee under the indenture agreement revealed the identity of additional debenture holders. A professional search firm endeavored to trace holders who had relocated. Banks and brokerage houses also were furnished' with information that might help them to locate clients who had invested in the debentures. As of July 18, 1979, shortly before he filed his brief with this Court, the Master had received claims accounting for $706,600 worth of debentures or about 47% of the unconverted securities. Id., at 14. Boeing contends that the judgment in this case was simply a procedural device ordering Boeing to pay into escrow its maximum potential liability to the class. The judgment will not be final, Boeing argues, until absentee class members have presented their individual claims. Thus, Boeing concludes, the judgment fund confers no benefit on class members who fail to claim against it. Brief for Petitioner 25-26, and n. *. We think that Boeing misreads the judgment. The District Court explicitly ordered that “plaintiffs in behalf of all members of the plaintiff class . . . shall recover as their damages herein from the defendants the principal sum of $3,289,359 together with interest. . . .” See n. 1, supra. Nothing in the court’s order made Boeing’s liability for this amount contingent upon the presentation of individual claims. Thus, we need not decide whether a class-action judgment that simply requires the defendant to give security against all potential claims would support a recovery of attorney’s fees under the common-fund doctrine. We also think that Boeing’s arguments come too late. Although the District Court did not fix the amount of attorney’s fees to be assessed against absentee class members, its judgment terminated the litigation between Boeing and the class concerning the extent of Boeing’s liability. See Swanson v. American Consumer Industries, Inc., 517 F. 2d 555, 559— 561 (CA7 1975). This is not a case, like Liberty Mutual Ins. Co. v. Wetzel, 424 U. S. 737 (1976), where a prayer for attorney’s fees against an opposing party remains unanswered. See Richerson v. Jones, 551 F. 2d 918, 921-922 (CA3 1977). Thus, the judgment awarding the class a fixed recovery was final and appealable. Since Boeing did not appeal it, we cannot now consider whether the judgment was in error. Since an award of attorney’s fees under the common-fund doctrine simply relieves claiming class members of costs incurred for the benefit of others, we see no merit in Boeing’s contention that the award amounts to a “fluid class” recovery. See Tr. of Oral Arg. 20. Here, as in Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 172, n. 10 (1974), we express no opinion on the validity of judgments permitting such recoveries. Although we recognize that this 14-year-old case has had a fractured career in the courts, we do not agree with Mr. Justice RehNQUist’s dissenting view that the judgment before us lacks finality. Post, at 482. The District Court’s judgment first ordered Boeing to pay a specified sum to the entire class and then assessed undetermined attorney’s fees against the entire fund created by the judgment. The judgment on the merits stripped Boeing of any present interest in the fund. Thus, Boeing had no cognizable interest in further litigation between the class and its lawyers over the amount of the fees ultimately awarded from money belonging to the class. But Boeing did have an interest, arising from its colorable claim for the return of excess money, in whether attorney’s fees could be assessed against the entire fund rather than against the portion actually claimed. Since the District Court’s order assessed attorney’s fees against the entire fund, it was a final judgment on the only issue in which Boeing still had an interest. In the peculiar circumstances of this case, Boeing could secure review of the allocation of fees only by appealing from this adverse judgment. The Court of Appeals did not consider the ultimate disposition of whatever money may remain in the fund after the District Court enforces a deadline for the presentation of individual claims. 590 F. 2d 433, 440, n. 17 (1978). We likewise express no opinion on that question. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

F

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Chief Justice Burger delivered the opinion of the Court. We granted certiorari to determine whether a federal court should abstain from considering a challenge to the constitutionality of disciplinary rules that are the subject of pending state disciplinary proceedings within the jurisdiction of the New Jersey Supreme Court. 454 U. S. 962 (1981). The Court of Appeals held that it need not abstain under Younger v. Harris, 401 U. S. 37 (1971). We reverse. I A The Constitution of New Jersey charges the State Supreme Court with the responsibility for licensing and disciplining attorneys admitted to practice in the State. Art. 6, § 2, ¶ 3. Under the rules established by the New Jersey Supreme Court, promulgated pursuant to its constitutional authority, a complaint moves through a three-tier procedure. First, local District Ethics Committees appointed by the State Supreme Court are authorized to receive complaints relating to claimed unethical conduct by an attorney. New Jersey Court Rule l:20-2(d). At least two of the minimum of eight members of the District Ethics Committee must be nonattorneys. Complaints are assigned to an attorney member of the Committee to report and make a recommendation. Rule l:20-2(h). The decision whether to proceed with the complaint is made by the person who chairs the Ethics Committee. If a complaint is issued by the Ethics Committee it must state the name of the complainant, describe the claimed improper conduct, cite the relevant rules, and state, if known, whether the same or a similar complaint has been considered by any other Ethics Committee. The attorney whose conduct is challenged is served with the complaint and has 10 days to answer. Unless good cause appears for referring the complaint to another Committee member, each complaint is referred to the member of the Committee who conducted the initial investigation for review and further investigation, if necessary. The Committee member submits a written report stating whether a prima facie indication of unethical or unprofessional conduct has been demonstrated. The report is then evaluated by the chairman of the Ethics Committee to determine whether a prima facie case exists. Absent a prima facie showing, the complaint is summarily dismissed. If a prima facie case is found, a formal hearing on the complaint is held before three or more members of the Ethics Committee, a majority of whom must be attorneys. The lawyer who is charged with unethical conduct may have counsel, discovery is available, and all witnesses are sworn. The panel is required to prepare a written report with its findings of fact and conclusions. The full Committee, following the decision of the panel, has three alternatives. The Committee may dismiss the complaint, prepare a private letter of reprimand, or prepare a presentment to be forwarded to the Disciplinary Review Board. Rule l:20-2(o). The Disciplinary Review Board, a statewide board which is also appointed by the Supreme Court, consists of nine members, at least five of whom must be attorneys and at least three of whom must be nonattorneys. The Board makes a de novo review. Rule 1:20 — 3(d)(3). The Board is required to make formal findings and recommendations to the New Jersey Supreme Court. All decisions of the Disciplinary Review Board beyond a private reprimand are reviewed by the New Jersey Supreme Court. Briefing and oral argument are available in the Supreme Court for cases involving disbarment or suspension for more than one year. Rule 1:20-4. B Respondent Lennox Hinds, a member of the New Jersey Bar, served as executive director of the National Conference of Black Lawyers at the time of his challenged conduct. Hinds represented Joanne Chesimard in a civil proceeding challenging her conditions of confinement in jail. In 1977 Chesimard went to trial in state court for the murder of a policeman. Respondent Hinds was not a counsel of record for Chesimard in the murder case. However, at the outset of the criminal trial Hinds took part in a press conference, making statements critical of the trial and of the trial judge's judicial temperament and racial insensitivity. In particular, Hinds referred to the criminal trial as “a travesty,” a “legalized lynching,” and “a kangaroo court.” One member of the Middlesex County Ethics Committee read news accounts of Hinds' comments and brought the matter to the attention of the Committee. In February 1977 the Committee directed one of its members to conduct an investigation. A letter was written to Hinds, who released the contents of the letter to the press. The Ethics Committee on its own motion then suspended the investigation until the conclusion of the Chesimard criminal trial. After the trial was completed the Committee investigated the complaint and concluded that there was probable cause to believe that Hinds had violated DR 1 — 102(A)(5) of the Disciplinary Rules of the Code of Professional Responsibility. That section provides that “[a] lawyer shall not. . . [ejngage in conduct that is prejudicial to the administration of justice.” Respondent Hinds also was charged with violating DR 7-107(D), which prohibits extrajudicial statements by lawyers associated with the prosecution or defense of a criminal matter. The Committee then served a formal statement of charges on Hinds. Instead of filing an answer to the charges in accordance with the New Jersey Bar disciplinary procedures, Hinds and the three respondent organizations filed suit in the United States District Court for the District of New Jersey contending that the disciplinary rules violated respondents’ First Amendment rights. In addition, respondents charged that the disciplinary rules were facially vague and overbroad. The District Court granted petitioner’s motion to dismiss based on Younger v. Harris, 401 U. S. 37 (1971), concluding that “[t]he principles of comity and federalism dictate that the federal court abstain so that the state is afforded the opportunity to interpret its rules in the face of a constitutional challenge.” App. to Pet. for Cert. 53a-54a. At respondents’ request the District Court reopened the case to allow respondents an opportunity to establish bad faith, harassment, or other extraordinary circumstance which would constitute an exception to Younger abstention. Dombrowski v. Pfister, 380 U. S. 479 (1965). After two days of hearings the District Court found no evidence to justify an exception to the Younger abstention doctrine and dismissed the federal-court complaint. A divided panel of the United States Court of Appeals for the Third Circuit reversed on the ground that the state bar disciplinary proceedings did not provide a meaningful opportunity to adjudicate constitutional claims. 643 F. 2d 119 (1981). The court reasoned that the disciplinary proceedings in this case are unlike the state judicial proceedings to which the federal courts usually defer. The Court of Appeals majority viewed the proceedings in this case as administrative, “nonadjudicative” proceedings analogous to the preindictment stage of a criminal proceeding. On petition for rehearing petitioner attached an affidavit from the Clerk of the New Jersey Supreme Court which stated that the New Jersey Supreme Court would directly consider Hinds’ constitutional challenges and that the court would consider whether such a procedure should be made explicit in the Supreme Court rules. On reconsideration a divided panel of the Third Circuit declined to alter its original decision, stating that the relevant facts concerning abstention are those that existed at the time of the District Court’s decision. 651 F. 2d 154 (1981). Pending review in this Court, the New Jersey Supreme Court has heard oral arguments on the constitutional challenges presented by respondent Hinds and has adopted a rule allowing for an aggrieved party in a disciplinary hearing to seek interlocutory review of a constitutional challenge to the proceedings. II A Younger v. Harris, supra, and its progeny espouse a strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances. The policies underlying Younger abstention have been frequently reiterated by this Court. The notion of “comity” includes “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.” Id., at 44. Minimal respect for the state processes, of course, precludes any presumption that the state courts will not safeguard federal constitutional rights. The policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved. Moore v. Sims, 442 U. S. 415, 423 (1979); Huffman v. Pursue, Ltd., 420 U. S. 592, 604-605 (1975). The importance of the state interest may be demonstrated by the fact that the noncriminal proceedings bear a close relationship to proceedings criminal in nature, as in Huffman, supra. Proceedings necessary for the vindication of important state policies or for the functioning of the state judicial system also evidence the state’s substantial interest in the litigation. Trainor v. Hernandez, 431 U. S. 434 (1977); Juidice v. Vail, 430 U. S. 327 (1977). Where vital state interests are involved, a federal court should abstain “unless state law clearly bars the interposition of the constitutional claims.” Moore, 442 U. S., at 426. “[T]he . . . pertinent inquiry is whether the state proceedings afford an adequate opportunity to raise the constitutional claims . . . .” Id., at 430. See also Gibson v. Berryhill, 411 U. S. 564 (1973). The question in this case is threefold: first, do state bar disciplinary hearings within the constitutionally prescribed jurisdiction of the State Supreme Court constitute an ongoing state judicial proceeding; second, do the proceedings implicate important state interests; and third, is there an adequate opportunity in the state proceedings to raise constitutional challenges. B The State of New Jersey, in common with most States, recognizes the important state obligation to regulate persons who are authorized to practice law. New Jersey expresses this in a state constitutional provision vesting in the New Jersey Supreme Court the authority to fix standards, regulate admission to the bar, and enforce professional discipline among members of the bar. N. J. Const., Art. 6, §2, ¶3. The Supreme Court of New Jersey has recognized that the local District Ethics Committees act as the arm of the court in performing the function of receiving and investigating complaints and holding hearings. Rule 1:20-2; In re Logan, 70 N. J. 222, 358 A. 2d 787 (1976). The New Jersey Supreme Court has made clear that filing a complaint with the local Ethics and Grievance Committee “is in effect a filing with the Supreme Court. . . .” Toft v. Ketchum, 18 N. J. 280, 284, 113 A. 2d 671, 674, cert. denied, 350 U. S. 887 (1955). “From the very beginning a disciplinary proceeding is judicial in nature, initiated by filing a complaint with an ethics and grievance committee.” 18 N. J., at 284, 113 A. 2d, at 674. It is clear beyond doubt that the New Jersey Supreme Court considers its bar disciplinary proceedings as “judicial in nature.” As such, the proceedings are of a character to warrant federal-court deference. The remaining inquiries are whether important state interests are implicated so as to warrant federal-court abstention and whether the federal plaintiff has an adequate opportunity to present the federal challenge. C The State of New Jersey has an extremely important interest in maintaining and assuring the professional conduct of the attorneys it licenses. States traditionally have exercised extensive control over the professional conduct of attorneys. See n. 11, supra. The ultimate objective of such control is “the protection of the public, the purification of the bar and the prevention of a re-occurrence.” In re Baron, 25 N. J. 445, 449, 136 A. 2d 873, 875 (1957). The judiciary as well as the public is dependent upon professionally ethical conduct of attorneys and thus has a significant interest in assuring and maintaining high standards of conduct of attorneys engaged in practice. See In re Stein, 1 N. J. 228, 237, 62 A. 2d 801, 805 (1949), quoting In re Cahill, 66 N. J. L. 527, 50 A. 119 (1901). The State’s interest in the professional conduct of attorneys involved in the administration of criminal justice is of special importance. Finally, the State’s interest in the present litigation is demonstrated by the fact that the Mid-dlesex County Ethics Committee, an agency of the Supreme Court of New Jersey, is the named defendant in the present suit and was the body which initiated the state proceedings against respondent Hinds. The importance of the state interest in the pending state judicial proceedings and in the federal case calls Younger abstention into play. So long as the constitutional claims of respondents can be determined in the state proceedings and so long as there is no showing of bad faith, harassment, or some other extraordinary circumstance that would make abstention inappropriate, the federal courts should abstain. D Respondent Hinds contends that there was no opportunity in the state disciplinary proceedings to raise his federal constitutional challenge to the disciplinary rules. Yet Hinds failed to respond to the complaint filed by the local Ethics Committee and failed even to attempt to raise any federal constitutional challenge in the state proceedings. Under New Jersey’s procedure, its Ethics Committees constantly are called upon to interpret the state disciplinary rules. Respondent Hinds points to nothing existing at the time the complaint was brought by the local Committee to indicate that the members of the Ethics Committee, the majority of whom are lawyers, would have refused to consider a claim that the rules which they were enforcing violated federal constitutional guarantees. Abstention is based upon the theory that “ ‘[t]he accused should first set up and rely upon his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it plainly appears that this course would not afford adequate protection.’” Younger v. Harris, 401 U. S., at 45, quoting Fenner v. Boykin, 271 U. S. 240, 244 (1926). In light of the unique relationship between the New Jersey Supreme Court and the local Ethics Committee, and in view of the nature of the proceedings, it is difficult to conclude that there was no “adequate opportunity” for respondent Hinds to raise his constitutional claims. Moore, 442 U. S., at 430. Whatever doubt, if any, that may have existed about respondent Hinds’ ability to have constitutional challenges heard in the bar disciplinary hearings was laid to rest by the subsequent actions of the New Jersey Supreme Court. Prior to the filing of the petition for certiorari in this Court the New Jersey Supreme Court sua sponte entertained the constitutional issues raised by respondent Hinds. Respondent Hinds therefore has had abundant opportunity to present his constitutional challenges in the state disciplinary proceedings. There is no reason for the federal courts to ignore this subsequent development. In Hicks v. Miranda, 422 U. S. 332 (1975), we held that “where state criminal proceedings are begun against the federal plaintiffs after the federal complaint is filed but before any proceedings of substance on the merits have taken place in federal court, the principles of Younger v. Harris should apply in full force.” Id., at 349. An analogous situation is presented here; the principles of comity and federalism which call for abstention remain in full force. Thus far in the federal-court litigation the sole issue has been whether abstention is appropriate. No proceedings have occurred on the merits and therefore no federal proceedings on the merits will be terminated by application of Younger principles. It would trivialize the principles of comity and federalism if federal courts failed to take into account that an adequate state forum for all relevant issues has clearly been demonstrated to be available prior to any proceedings on the merits in federal court. 422 U. S., at 350. Respondents have not challenged the findings of the District Court that there was no bad faith or harassment on the part of petitioner and that the state rules were not “‘flagrantly and patently’ ” unconstitutional. Younger, supra, at 53, quoting Watson v. Buck, 313 U. S. 387, 402 (1941). See App. to Pet. for Cert. 50a-52a. We see no reason to disturb these findings, and no other extraordinary circumstances have been presented to indicate that abstention would not be appropriate. Ill Because respondent Hinds had an “opportunity to raise and have timely decided by a competent state tribunal the federal issues involved,” Gibson v. Berryhill, 411 U. S., at 577, and because no bad faith, harassment, or other exceptional circumstances dictate to the contrary, federal courts should abstain from interfering with the ongoing proceedings. Accordingly, the judgment of the United States Court of Appeals for the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. Reversed and remanded. Article 6, § 2, ¶ 3, provides: “The Supreme Court shall make rules governing the administration of all courts in the State and, subject to the law, the practice and procedure in all such courts. The Supreme Court shall have jurisdiction over the admission to the practice of law and the discipline of persons admitted.” For a more detailed explanation of the disciplinary procedure of the District Ethics Committees, see Rule 1:20-2. As noted below, the procedure, as amended in 1981, now provides that a charged attorney may raise constitutional questions in the District Committees. Any constitutional challenges are to be set forth in the answer to the complaint. Rule 1:20 — 2(j) now provides: “All constitutional questions shall be withheld for consideration by the Supreme Court as part of its review of the final decision of the Disciplinary Review Board. Interlocutory relief may be sought only in accordance with R. 1:20 — 4(d)(i).” Each District Ethics Committee appoints one member of the bar to serve as Secretary. The Secretary maintains records of the proceedings. The Secretary also transmits copies of all documents filed to the Division of Ethics and Professional Services. Rule l:20-2(c). Subsequent to the initiation of the disciplinary hearing involved in this case, Rule l:20-3(e) was amended to provide: “Constitutional challenges to the proceedings not raised before the District Committee shall be preserved, without Board action, for Supreme Court consideration as part of its review of the matter on the merits.. Interlocutory relief may be sought only in accordance with Rule l:20-4(d)(i).” The Disciplinary Rules of the Code of Professional Responsibility and Code of Judicial Conduct of the American Bar Association, with amendment and supplementation, have been adopted by the New Jersey Supreme Court as the applicable standard of conduct for members of the bar and the judges of New Jersey. New Jersey Court Rule 1:14. DR 7-107 deals with “Trial Publicity” and states: “(D) During the selection of a jury or the trial of a criminal matter, a lawyer or law firm associated with the prosecution or defense of a criminal matter shall not make or participate in making an extra-judicial statement that he expects to be disseminated by means of public communication and that relates to the trial, parties, or issues in the trial or other matters that are reasonably likely to interfere with a fair trial. . . .” The majority concluded that the hearings are designed to elicit facts, not legal arguments, as indicated by the presence of nonlawyers. The court also found that the ability to raise constitutional claims before the Ethics Committee does not constitute a meaningful opportunity to have constitutional questions adjudicated. No formal opinion is filed by the District Ethics Committee. The Third Circuit distinguished Gipson v. New Jersey Supreme Court, 558 F. 2d 701 (CA3 1977), on the ground that in Gipson the attorney being disciplined was already subject to the state-court action at the time the federal proceeding had been initiated. Judge Adams, concurring, emphasized that state courts have the primary responsibility to discipline their bar and, in general, the federal judiciary is to exercise no supervisory powers. Judge Weis, dissenting, argued that respondents have full opportunity in the New Jersey proceedings to raise constitutional issues, concluding that the disciplinary proceedings are not a series of separate segments before independent bodies but are part of a whole. Judge Weis also concluded that there was nothing to prevent the Ethics Committee from considering constitutional claims. The panel majority noted that no rule existed at the time of the District Court’s decision to assure the Court of Appeals that the New Jersey Supreme Court would consider the constitutional claims. The court also concluded that the possibility of a formal procedure of the New Jersey court for consideration of constitutional claims does not moot this case because the underlying dispute as to the validity of the rules still remains. Judge Weis, again dissenting, concluded that no justiciable controversy remained as to the issue in the Court of Appeals and recommended that the case be remanded and dismissed as moot. Rule l:20-4(d) states: “(i) Interlocutory Review. An aggrieved party may file a motion for leave to appeal with the Supreme Court to seek interlocutory review of a constitutional challenge to proceedings pending before the District Ethics Committee or the Disciplinary Review Board. The motion papers shall conform to R. 2:8-1. Leave to appeal may be granted only when necessary to prevent irreparable injury. If leave to appeal is granted, the record below may, in the discretion of the Court, be supplemented by the filing of briefs and oral argument. “(ii) Final Review. In any case in which a constitutional challenge to the proceedings has been properly raised below and preserved pending review of the merits of the disciplinary matter by the Supreme Court, the aggrieved party may, within 10 days of the filing of the report and recommendation of the Disciplinary Review Board, seek the review of the Court by proceeding in accordance with the applicable provisions of R. 1:19-8.” Samuels v. Mackell, 401 U. S. 66 (1971), concluded that the same comity and federalism principles govern the issuance of federal-court declaratory judgments concerning the state statute that is the subject of the ongoing state criminal proceeding. See M. Shoaf, State Disciplinary Enforcement Systems Structural Survey (ABA National Center for Professional Responsibility 1980). The New Jersey allocation of responsibility is consistent with §2.1 of the ABA Standards for Lawyer Discipline and Disability Proceedings (Proposed Draft 1978), which states that the “[ultimate and exclusive responsibility within a state for the structure and administration of the lawyer discipline and disability system and the disposition of individual cases is within the inherent power of the highest court of the state.” The rationale for vesting responsibility with the judiciary is that the practice of law “is so directly connected and bound up with the exercise of judicial power and the administration of justice that the right to define and regulate it naturally and logically belongs to the judicial department.” Id.,, commentary to §2.1. The New Jersey Supreme Court has concluded that bar disciplinary proceedings are neither criminal nor civil in nature, but rather are sui ge-neris. In re Logan, 70 N. J. 222, 358 A. 2d 787 (1976). See also ABA Standards for Lawyer Discipline and Disability Proceedings § 1.2 (Proposed Draft 1978). As recognized in Juidice v. Vail, 430 U. S. 327 (1977), however, whether the proceeding “is labeled civil, quasi-criminal, or criminal in nature,” the salient fact is whether federal-court interference would unduly interfere with the legitimate activities of the state. Id., at 335-336. The instant case arose before the 1978 rule change. In 1978 the New Jersey Supreme Court established a Disciplinary Review Board charged with review of findings of District Ethics Committees. Nothing in this rule change, however, altered the nature of such proceedings. The responsibility under Art. 6, § 2, ¶ 3, remains with the New Jersey Supreme Court. The role of local ethics or bar association committees may be analogized to the function of a special master. Anonymous v. Association of Bar of City of New York, 515 F. 2d 427 (CA2), cert. denied, 423 U. S. 863 (1975). The essentially judicial nature of disciplinary actions in New Jersey has been recognized previously by the federal courts. In Gipson v. New Jersey Supreme Court, 558 F. 2d 701 (1977), the United States Court of Appeals for the Third Circuit agreed that “incursions by federal courts into ongoing [New Jersey] disciplinary proceedings would be peculiarly disruptive of notions of comity.” Id., at 704. This case is distinguishable from Steffel v. Thompson, 415 U. S. 452, 462 (1974), in which there was no ongoing state proceeding to serve as a vehicle for vindicating the constitutional rights of the federal plaintiff. This case is also distinguishable from Gerstein v. Pugh, 420 U. S. 103, 108, n. 9 (1975), in which the issue of the legality of a pretrial detention could not be raised in defense of a criminal prosecution. See also Juidice v. Vail, 430 U. S., at 337. In addition, after the filing of the writ of certiorari the New Jersey Supreme Court amended the state bar disciplinary rules to expressly permit a motion directly to the New Jersey Supreme Court for interlocutory adjudication of constitutional issues. Rule 1:20 — 4(d)(i). See n. 9, supra. Even if interlocutory review is not granted, constitutional issues are preserved for consideration by the New Jersey Supreme Court. Rule 1:20 — 2(j). The New Jersey Supreme Court reviews all disciplinary actions except the issuance of private letters of reprimand. Rule 1:20-4. Rule l:20-2(j), however, requires that all constitutional issues be withheld for consideration by the Supreme Court as part of its review of the decision of the Disciplinary Review Board. This appears to provide for Supreme Court review of constitutional challenges even when a private reprimand is made. Indeed, the decision of the New Jersey Supreme Court to consider respondent Hinds’ constitutional challenges indicates that the state court desired to give Hinds a swift judicial resolution of his constitutional claims. It is not clear whether the Court of Appeals decided whether abstention would be proper as to the respondent organizations who are not parties to the state disciplinary proceedings. We leave this issue to the Court of Appeals on remand. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

I

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. As several of the Bar's amicinote, we applied the "closely drawn" test to solicitation restrictions in McConnell v. Federal Election Comm'n,540 U.S. 93, 136, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003), overruled in part by Citizens United v. Federal Election Comm'n,558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). But the Court in that case determined that the solicitation restrictions operated primarily to prevent circumvention of the contribution limits, which were the subject of the "closely drawn" test in the first place. 540 U.S., at 138-139, 124 S.Ct. 619. McConnelloffers no help to the Bar here, because Florida did not adopt Canon 7C(1) as an anticircumvention measure. In sum, we hold today what we assumed in White: A State may restrict the speech of a judicial candidate only if the restriction is narrowly tailored to serve a compelling interest. III The Florida Bar faces a demanding task in defending Canon 7C(1) against Yulee's First Amendment challenge. We have emphasized that "it is the rare case" in which a State demonstrates that a speech restriction is narrowly tailored to serve a compelling interest. Burson v. Freeman,504 U.S. 191, 211, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992)(plurality opinion). But those cases do arise. See ibid.;Holder v. Humanitarian Law Project,561 U.S. 1, 25-39, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010); McConnell,540 U.S., at 314, 124 S.Ct. 619(opinion of KENNEDY, J.); cf. Adarand Constructors, Inc. v. Pena,515 U.S. 200, 237, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995)("we wish to dispel the notion that strict scrutiny is 'strict in theory, but fatal in fact' "). Here, Canon 7C(1) advances the State's compelling interest in preserving public confidence in the integrity of the judiciary, and it does so through means narrowly tailored to avoid unnecessarily abridging speech. This is therefore one of the rare cases in which a speech restriction withstands strict scrutiny. A The Florida Supreme Court adopted Canon 7C(1) to promote the State's interests in "protecting the integrity of the judiciary" and "maintaining the public's confidence in an impartial judiciary." 138 So.3d, at 385. The way the Canon advances those interests is intuitive: Judges, charged with exercising strict neutrality and independence, cannot supplicate campaign donors without diminishing public confidence in judicial integrity. This principle dates back at least eight centuries to Magna Carta, which proclaimed, "To no one will we sell, to no one will we refuse or delay, right or justice." Cl. 40 (1215), in W. McKechnie, Magna Carta, A Commentary on the Great Charter of King John 395 (2d ed. 1914). The same concept underlies the common law judicial oath, which binds a judge to "do right to all manner of people ... without fear or favour, affection or ill-will," 10 Encyclopaedia of the Laws of England 105 (2d ed. 1908), and the oath that each of us took to "administer justice without respect to persons, and do equal right to the poor and to the rich," 28 U.S.C. § 453. Simply put, Florida and most other States have concluded that the public may lack confidence in a judge's ability to administer justice without fear or favor if he comes to office by asking for favors. The interest served by Canon 7C(1) has firm support in our precedents. We have recognized the "vital state interest" in safeguarding "public confidence in the fairness and integrity of the nation's elected judges." Caperton v. A.T. Massey Coal Co.,556 U.S. 868, 889, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009)(internal quotation marks omitted). The importance of public confidence in the integrity of judges stems from the place of the judiciary in the government. Unlike the executive or the legislature, the judiciary "has no influence over either the sword or the purse; ... neither force nor will but merely judgment." The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered). The judiciary's authority therefore depends in large measure on the public's willingness to respect and follow its decisions. As Justice Frankfurter once put it for the Court, "justice must satisfy the appearance of justice." Offutt v. United States,348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 (1954). It follows that public perception of judicial integrity is "a state interest of the highest order." Caperton,556 U.S., at 889, 129 S.Ct. 2252(quoting White,536 U.S., at 793, 122 S.Ct. 2528(KENNEDY, J., concurring)). The principal dissent observes that bans on judicial candidate solicitation lack a lengthy historical pedigree. Post,at 1676 (opinion of SCALIA, J.). We do not dispute that fact, but it has no relevance here. As the precedent cited by the principal dissent demonstrates, a history and tradition of regulation are important factors in determining whether to recognize "new categories of unprotected speech." Brown v. Entertainment Merchants Assn.,564 U.S. ----, ----, 131 S.Ct. 2729, 2734, 180 L.Ed.2d 708 (2011); see post, at 1676. But nobody argues that solicitation of campaign funds by judicial candidates is a category of unprotected speech. As explained above, the First Amendment fully applies to Yulee's speech. The question is instead whether that Amendment permits the particular regulation of speech at issue here. The parties devote considerable attention to our cases analyzing campaign finance restrictions in political elections. But a State's interest in preserving public confidence in the integrity of its judiciary extends beyond its interest in preventing the appearance of corruption in legislative and executive elections. As we explained in White,States may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians. 536 U.S., at 783, 122 S.Ct. 2528; id.,at 805, 122 S.Ct. 2528(GINSBURG, J., dissenting). Politicians are expected to be appropriately responsive to the preferences of their supporters. Indeed, such "responsiveness is key to the very concept of self-governance through elected officials." McCutcheon v. Federal Election Comm'n,572 U.S. ----, ----, 134 S.Ct. 1434, 1462, 188 L.Ed.2d 468 (2014)(plurality opinion). The same is not true of judges. In deciding cases, a judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors. A judge instead must "observe the utmost fairness," striving to be "perfectly and completely independent, with nothing to influence or controul him but God and his conscience." Address of John Marshall, in Proceedings and Debates of the Virginia State Convention of 1829-1830, p. 616 (1830). As in White,therefore, our precedents applying the First Amendment to political elections have little bearing on the issues here. The vast majority of elected judges in States that allow personal solicitation serve with fairness and honor. But "[e]ven if judges were able to refrain from favoring donors, the mere possibility that judges' decisions may be motivated by the desire to repay campaign contributions is likely to undermine the public's confidence in the judiciary." White,536 U.S., at 790, 122 S.Ct. 2528(O'Connor, J., concurring). In the eyes of the public, a judge's personal solicitation could result (even unknowingly) in "a possible temptation ... which might lead him not to hold the balance nice, clear and true." Tumey v. Ohio,273 U.S. 510, 532, 47 S.Ct. 437, 71 L.Ed. 749 (1927). That risk is especially pronounced because most donors are lawyers and litigants who may appear before the judge they are supporting. See A. Bannon, E. Velasco, L. Casey, & L. Reagan, The New Politics of Judicial Elections: 2011-12, p. 15 (2013). The concept of public confidence in judicial integrity does not easily reduce to precise definition, nor does it lend itself to proof by documentary record. But no one denies that it is genuine and compelling. In short, it is the regrettable but unavoidable appearance that judges who personally ask for money may diminish their integrity that prompted the Supreme Court of Florida and most other States to sever the direct link between judicial candidates and campaign contributors. As the Supreme Court of Oregon explained, "the spectacle of lawyers or potential litigants directly handing over money to judicial candidates should be avoided if the public is to have faith in the impartiality of its judiciary." In re Fadeley,310 Ore. 548, 565, 802 P.2d 31, 41 (1990). Moreover, personal solicitation by a judicial candidate "inevitably places the solicited individuals in a position to fear retaliation if they fail to financially support that candidate." Simes,368 Ark., at 585, 247 S.W.3d, at 882. Potential litigants then fear that "the integrity of the judicial system has been compromised, forcing them to search for an attorney in part based upon the criteria of which attorneys have made the obligatory contributions." Ibid.A State's decision to elect its judges does not require it to tolerate these risks. The Florida Bar's interest is compelling. B Yulee acknowledges the State's compelling interest in judicial integrity. She argues, however, that the Canon's failure to restrict other speech equally damaging to judicial integrity and its appearance undercuts the Bar's position. In particular, she notes that Canon 7C(1) allows a judge's campaign committee to solicit money, which arguably reduces public confidence in the integrity of the judiciary just as much as a judge's personal solicitation. Yulee also points out that Florida permits judicial candidates to write thank you notes to campaign donors, which ensures that candidates know who contributes and who does not. It is always somewhat counterintuitive to argue that a law violates the First Amendment by abridging too littlespeech. We have recognized, however, that underinclusiveness can raise "doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint." Brown,564 U.S., at ----, 131 S.Ct., at 2740. In a textbook illustration of that principle, we invalidated a city's ban on ritual animal sacrifices because the city failed to regulate vast swaths of conduct that similarly diminished its asserted interests in public health and animal welfare. Church of Lukumi Babalu Aye, Inc. v. Hialeah,508 U.S. 520, 543-547, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). Underinclusiveness can also reveal that a law does not actually advance a compelling interest. For example, a State's decision to prohibit newspapers, but not electronic media, from releasing the names of juvenile defendants suggested that the law did not advance its stated purpose of protecting youth privacy. Smith v. Daily Mail Publishing Co.,443 U.S. 97, 104-105, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979). Although a law's underinclusivity raises a red flag, the First Amendment imposes no freestanding "underinclusiveness limitation." R.A.V. v. St. Paul,505 U.S. 377, 387, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992)(internal quotation marks omitted). A State need not address all aspects of a problem in one fell swoop; policymakers may focus on their most pressing concerns. We have accordingly upheld laws-even under strict scrutiny-that conceivably could have restricted even greater amounts of speech in service of their stated interests. Burson,504 U.S., at 207, 112 S.Ct. 1846; see McConnell,540 U.S., at 207-208, 124 S.Ct. 619; Metromedia, Inc. v. San Diego,453 U.S. 490, 511-512, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981)(plurality opinion); Buckley,424 U.S., at 105, 96 S.Ct. 612. Viewed in light of these principles, Canon 7C(1) raises no fatal underinclusivity concerns. The solicitation ban aims squarely at the conduct most likely to undermine public confidence in the integrity of the judiciary: personal requests for money by judges and judicial candidates. The Canon applies evenhandedly to all judges and judicial candidates, regardless of their viewpoint or chosen means of solicitation. And unlike some laws that we have found impermissibly underinclusive, Canon 7C(1) is not riddled with exceptions. See City of Ladue v. Gilleo,512 U.S. 43, 52-53, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994). Indeed, the Canon contains zero exceptions to its ban on personal solicitation. Yulee relies heavily on the provision of Canon 7C(1) that allows solicitation by a candidate's campaign committee. But Florida, along with most other States, has reasonably concluded that solicitation by the candidate personally creates a categorically different and more severe risk of undermining public confidence than does solicitation by a campaign committee. The identity of the solicitor matters, as anyone who has encountered a Girl Scout selling cookies outside a grocery store can attest. When the judicial candidate himself asks for money, the stakes are higher for all involved. The candidate has personally invested his time and effort in the fundraising appeal; he has placed his name and reputation behind the request. The solicited individual knows that, and also knows that the solicitor might be in a position to singlehandedly make decisions of great weight: The same person who signed the fundraising letter might one day sign the judgment. This dynamic inevitably creates pressure for the recipient to comply, and it does so in a way that solicitation by a third party does not. Just as inevitably, the personal involvement of the candidate in the solicitation creates the public appearance that the candidate will remember who says yes, and who says no. In short, personal solicitation by judicial candidates implicates a different problem than solicitation by campaign committees. However similar the two solicitations may be in substance, a State may conclude that they present markedly different appearances to the public. Florida's choice to allow solicitation by campaign committees does not undermine its decision to ban solicitation by judges. Likewise, allowing judicial candidates to write thank you notes to campaign donors does not detract from the State's interest in preserving public confidence in the integrity of the judiciary. Yulee argues that permitting thank you notes heightens the likelihood of actual bias by ensuring that judicial candidates know who supported their campaigns, and ensuring that the supporter knows that the candidate knows. Maybe so. But the State's compelling interest is implicated most directly by the candidate's personal solicitation itself. A failure to ban thank you notes for contributions not solicited by the candidate does not undercut the Bar's rationale. In addition, the State has a good reason for allowing candidates to write thank you notes and raise money through committees. These accommodations reflect Florida's effort to respect the First Amendment interests of candidates and their contributors-to resolve the "fundamental tension between the ideal character of the judicial office and the real world of electoral politics." Chisom v. Roemer,501 U.S. 380, 400, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991). They belie the principal dissent's suggestion that Canon 7C(1) reflects general "hostility toward judicial campaigning" and has "nothing to do with the appearances created by judges' asking for money." Post, at 1681. Nothing? The principal dissent also suggests that Canon 7C(1) is underinclusive because Florida does not ban judicial candidates from asking individuals for personal gifts or loans. Post,at 1680. But Florida law treats a personal "gift" or "loan" as a campaign contribution if the donor makes it "for the purpose of influencing the results of an election," Fla. Stat. § 106.011(5)(a), and Florida's Judicial Qualifications Commission has determined that a judicial candidate violates Canon 7C(1) by personally soliciting such a loan. See In re Turner,76 So.3d 898, 901-902 (Fla.2011). In any event, Florida can ban personal solicitation of campaign funds by judicial candidates without making them obey a comprehensive code to leading an ethical life. Underinclusivity creates a First Amendment concern when the State regulates one aspect of a problem while declining to regulate a different aspect of the problem that affects its stated interest in a comparable way. See Florida Star v. B.J.F.,491 U.S. 524, 540, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989). The principal dissent offers no basis to conclude that judicial candidates are in the habit of soliciting personal loans, football tickets, or anything of the sort. Post,at 1680. Even under strict scrutiny, "[t]he First Amendment does not require States to regulate for problems that do not exist." Burson,504 U.S., at 207, 112 S.Ct. 1846(State's regulation of political solicitation around a polling place, but not charitable or commercial solicitation, was not fatally underinclusive under strict scrutiny). Taken to its logical conclusion, the position advanced by Yulee and the principal dissent is that Florida may ban the solicitation of funds by judicial candidates only if the State bans allsolicitation of funds in judicial elections. The First Amendment does not put a State to that all-or-nothing choice. We will not punish Florida for leaving open more, rather than fewer, avenues of expression, especially when there is no indication that the selective restriction of speech reflects a pretextual motive. C After arguing that Canon 7C(1) violates the First Amendment because it restricts too little speech, Yulee argues that the Canon violates the First Amendment because it restricts too much. In her view, the Canon is not narrowly tailored to advance the State's compelling interest through the least restrictive means. See United States v. Playboy Entertainment Group, Inc.,529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). By any measure, Canon 7C(1) restricts a narrow slice of speech. A reader of Justice KENNEDY's dissent could be forgiven for concluding that the Court has just upheld a latter-day version of the Alien and Sedition Acts, approving "state censorship" that "locks the First Amendment out," imposes a "gag" on candidates, and inflicts "dead weight" on a "silenced" public debate. Post,at 1676 - 1677. But in reality, Canon 7C(1) leaves judicial candidates free to discuss any issue with any person at any time. Candidates can write letters, give speeches, and put up billboards. They can contact potential supporters in person, on the phone, or online. They can promote their campaigns on radio, television, or other media. They cannot say, "Please give me money." They can, however, direct their campaign committees to do so. Whatever else may be said of the Canon, it is surely not a "wildly disproportionate restriction upon speech." Post, at 1676 (SCALIA, J., dissenting). Indeed, Yulee concedes-and the principal dissent seems to agree, post,at 1679-that Canon 7C(1) is valid in numerous applications. Yulee acknowledges that Florida can prohibit judges from soliciting money from lawyers and litigants appearing before them. Reply Brief 18. In addition, she says the State "might" be able to ban "direct one-to-one solicitation of lawyers and individuals or businesses that could reasonably appear in the court for which the individual is a candidate." Ibid. She also suggests that the Bar could forbid "in person" solicitation by judicial candidates. Tr. of Oral Arg. 7; cf. Ohralik v. Ohio State Bar Assn.,436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978)(permitting State to ban in person solicitation of clients by lawyers). But Yulee argues that the Canon cannot constitutionally be applied to her chosen form of solicitation: a letter posted online and distributed via mass mailing. No one, she contends, will lose confidence in the integrity of the judiciary based on personal solicitation to such a broad audience. This argument misperceives the breadth of the compelling interest that underlies Canon 7C(1). Florida has reasonably determined that personal appeals for money by a judicial candidate inherently create an appearance of impropriety that may cause the public to lose confidence in the integrity of the judiciary. That interest may be implicated to varying degrees in particular contexts, but the interest remains whenever the public perceives the judge personally asking for money. Moreover, the lines Yulee asks us to draw are unworkable. Even under her theory of the case, a mass mailing would create an appearance of impropriety if addressed to a list of all lawyers and litigants with pending cases. So would a speech soliciting contributions from the 100 most frequently appearing attorneys in the jurisdiction. Yulee says she might accept a ban on one-to-one solicitation, but is the public impression really any different if a judicial candidate tries to buttonhole not one prospective donor but two at a time? Ten? Yulee also agrees that in person solicitation creates a problem. But would the public's concern recede if the request for money came in a phone call or a text message? We decline to wade into this swamp. The First Amendment requires that Canon 7C(1) be narrowly tailored, not that it be "perfectly tailored." Burson,504 U.S., at 209, 112 S.Ct. 1846. The impossibility of perfect tailoring is especially apparent when the State's compelling interest is as intangible as public confidence in the integrity of the judiciary. Yulee is of course correct that some personal solicitations raise greater concerns than others. A judge who passes the hat in the courthouse creates a more serious appearance of impropriety than does a judicial candidate who makes a tasteful plea for support on the radio. But most problems arise in greater and lesser gradations, and the First Amendment does not confine a State to addressing evils in their most acute form. See id.,at 210, 112 S.Ct. 1846. Here, Florida has concluded that all personal solicitations by judicial candidates create a public appearance that undermines confidence in the integrity of the judiciary; banning all personal solicitations by judicial candidates is narrowly tailored to address that concern. In considering Yulee's tailoring arguments, we are mindful that most States with elected judges have determined that drawing a line between personal solicitation by candidates and solicitation by committees is necessary to preserve public confidence in the integrity of the judiciary. These considered judgments deserve our respect, especially because they reflect sensitive choices by States in an area central to their own governance-how to select those who "sit as their judges." Gregory v. Ashcroft,501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). Finally, Yulee contends that Florida can accomplish its compelling interest through the less restrictive means of recusal rules and campaign contribution limits. We disagree. A rule requiring judges to recuse themselves from every case in which a lawyer or litigant made a campaign contribution would disable many jurisdictions. And a flood of postelection recusal motions could "erode public confidence in judicial impartiality" and thereby exacerbate the very appearance problem the State is trying to solve. Caperton,556 U.S., at 891, 129 S.Ct. 2252(ROBERTS, C.J., dissenting). Moreover, the rule that Yulee envisions could create a perverse incentive for litigants to make campaign contributions to judges solely as a means to trigger their later recusal-a form of peremptory strike against a judge that would enable transparent forum shopping. As for campaign contribution limits, Florida already applies them to judicial elections. Fla. Stat. § 106.08(1)(a). A State may decide that the threat to public confidence created by personal solicitation exists apart from the amount of money that a judge or judicial candidate seeks. Even if Florida decreased its contribution limit, the appearance that judges who personally solicit funds might improperly favor their campaign donors would remain. Although the Court has held that contribution limits advance the interest in preventing quid pro quocorruption and its appearance in political elections, we have never held that adopting contribution limits precludes a State from pursuing its compelling interests through additional means. And in any event, a State has compelling interests in regulating judicial elections that extend beyond its interests in regulating political elections, because judges are not politicians. In sum, because Canon 7C(1) is narrowly tailored to serve a compelling government interest, the First Amendment poses no obstacle to its enforcement in this case. As a result of our decision, Florida may continue to prohibit judicial candidates from personally soliciting campaign funds, while allowing them to raise money through committees and to otherwise communicate their electoral messages in practically any way. The principal dissent faults us for not answering a slew of broader questions, such as whether Florida may cap a judicial candidate's spending or ban independent expenditures by corporations. Post, at 1679 - 1680. Yulee has not asked these questions, and for good reason-they are far afield from the narrow regulation actually at issue in this case. We likewise have no cause to consider whether the citizens of States that elect their judges have decided anything about the "oracular sanctity of judges" or whether judges are due "a hearty helping of humble pie." Post,at 1682. The principal dissent could be right that the decision to adopt judicial elections "probably springs," at least in part, from a desire to make judges more accountable to the public, ibid., although the history on this matter is more complicated. See J. Shugerman, The People's Courts, at 5 (arguing that States adopted judicial elections to increase judicial independence). In any event, it is a long way from general notions of judicial accountability to the principal dissent's view, which evokes nothing so much as Delacroix's painting of Liberty leading a determined band of citoyens,this time against a robed aristocracy scurrying to shore up the ramparts of the judicial castle through disingenuous ethical rules. We claim no similar insight into the People's passions, hazard no assertions about ulterior motives of those who promulgated Canon 7C(1), and firmly reject the charge of a deceptive "pose of neutrality" on the part of those who uphold it. Post,at 1682. * * * The desirability of judicial elections is a question that has sparked disagreement for more than 200 years. Hamilton believed that appointing judges to positions with life tenure constituted "the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws." The Federalist No. 78, at 465. Jefferson thought that making judges "dependent on none but themselves" ran counter to the principle of "a government founded on the public will." 12 The Works of Thomas Jefferson 5 (P. Ford ed. 1905). The federal courts reflect the view of Hamilton; most States have sided with Jefferson. Both methods have given our Nation jurists of wisdom and rectitude who have devoted themselves to maintaining "the public's respect ... and a reserve of public goodwill, without becoming subservient to public opinion." Rehnquist, Judicial Independence, 38 U. Rich. L.Rev. 579, 596 (2004). It is not our place to resolve this enduring debate. Our limited task is to apply the Constitution to the question presented in this case. Judicial candidates have a First Amendment right to speak in support of their campaigns. States have a compelling interest in preserving public confidence in their judiciaries. When the State adopts a narrowly tailored restriction like the one at issue here, those principles do not conflict. A State's decision to elect judges does not compel it to compromise public confidence in their integrity. The judgment of the Florida Supreme Court is Affirmed. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

C

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice GORSUCH delivered the opinion of the Court. Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids. Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren't thinking about many of the Act's consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters' imagination supply no reason to ignore the law's demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it's no contest. Only the written word is the law, and all persons are entitled to its benefit. I Few facts are needed to appreciate the legal question we face. Each of the three cases before us started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender-and allegedly for no reason other than the employee's homosexuality or transgender status. Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate. Under his leadership, the county won national awards for its work. After a decade with the county, Mr. Bostock began participating in a gay recreational softball league. Not long after that, influential members of the community allegedly made disparaging comments about Mr. Bostock's sexual orientation and participation in the league. Soon, he was fired for conduct "unbecoming" a county employee. Donald Zarda worked as a skydiving instructor at Altitude Express in New York. After several seasons with the company, Mr. Zarda mentioned that he was gay and, days later, was fired. Aimee Stephens worked at R.G. & G.R. Harris Funeral Homes in Garden City, Michigan. When she got the job, Ms. Stephens presented as a male. But two years into her service with the company, she began treatment for despair and loneliness. Ultimately, clinicians diagnosed her with gender dysphoria and recommended that she begin living as a woman. In her sixth year with the company, Ms. Stephens wrote a letter to her employer explaining that she planned to " live and work full-time as a woman" after she returned from an upcoming vacation. The funeral home fired her before she left, telling her "this is not going to work out." While these cases began the same way, they ended differently. Each employee brought suit under Title VII alleging unlawful discrimination on the basis of sex. 78 Stat. 255, 42 U.S.C. § 2000e-2(a)(1). In Mr. Bostock's case, the Eleventh Circuit held that the law does not prohibit employers from firing employees for being gay and so his suit could be dismissed as a matter of law. 723 Fed.Appx. 964 (2018). Meanwhile, in Mr. Zarda's case, the Second Circuit concluded that sexual orientation discrimination does violate Title VII and allowed his case to proceed. 883 F.3d 100 (2018). Ms. Stephens's case has a more complex procedural history, but in the end the Sixth Circuit reached a decision along the same lines as the Second Circuit's, holding that Title VII bars employers from firing employees because of their transgender status. 884 F.3d 560 (2018). During the course of the proceedings in these long-running disputes, both Mr. Zarda and Ms. Stephens have passed away. But their estates continue to press their causes for the benefit of their heirs. And we granted certiorari in these matters to resolve at last the disagreement among the courts of appeals over the scope of Title VII's protections for homosexual and transgender persons. 587 U.S. ----, 139 S.Ct. 1599, 203 L.Ed.2d 754 (2019). II This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President. If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people's representatives. And we would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations. See New Prime Inc. v. Oliveira, 586 U.S. ----, ---- - ----, 139 S.Ct. 532, 538-539, 202 L.Ed.2d 536 (2019). With this in mind, our task is clear. We must determine the ordinary public meaning of Title VII's command that it is "unlawful... for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." § 2000e-2(a)(1). To do so, we orient ourselves to the time of the statute's adoption, here 1964, and begin by examining the key statutory terms in turn before assessing their impact on the cases at hand and then confirming our work against this Court's precedents. A The only statutorily protected characteristic at issue in today's cases is "sex"-and that is also the primary term in Title VII whose meaning the parties dispute. Appealing to roughly contemporaneous dictionaries, the employers say that, as used here, the term "sex" in 1964 referred to "status as either male or female [as] determined by reproductive biology." The employees counter by submitting that, even in 1964, the term bore a broader scope, capturing more than anatomy and reaching at least some norms concerning gender identity and sexual orientation. But because nothing in our approach to these cases turns on the outcome of the parties' debate, and because the employees concede the point for argument's sake, we proceed on the assumption that "sex" signified what the employers suggest, referring only to biological distinctions between male and female. Still, that's just a starting point. The question isn't just what "sex" meant, but what Title VII says about it. Most notably, the statute prohibits employers from taking certain actions "because of " sex. And, as this Court has previously explained, "the ordinary meaning of 'because of' is 'by reason of' or 'on account of.' " University of Tex. Southwestern Medical Center v. Nassar, 570 U.S. 338, 350, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013) (citing Gross v. FBL Financial Services, Inc., 557 U.S. 167, 176, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009) ; quotation altered). In the language of law, this means that Title VII's "because of " test incorporates the "'simple' " and "traditional" standard of but-for causation. Nassar, 570 U.S. at 346, 360, 133 S.Ct. 2517. That form of causation is established whenever a particular outcome would not have happened "but for" the purported cause. See Gross, 557 U.S. at 176, 129 S.Ct. 2343. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause. This can be a sweeping standard. Often, events have multiple but-for causes. So, for example, if a car accident occurred both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, we might call each a but-for cause of the collision. Cf. Burrage v. United States, 571 U.S. 204, 211-212, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014). When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff's sex was one but-for cause of that decision, that is enough to trigger the law. See ibid. ; Nassar, 570 U.S. at 350, 133 S.Ct. 2517. No doubt, Congress could have taken a more parsimonious approach. As it has in other statutes, it could have added "solely" to indicate that actions taken "because of " the confluence of multiple factors do not violate the law. Cf. 11 U.S.C. § 525 ; 16 U.S.C. § 511. Or it could have written "primarily because of " to indicate that the prohibited factor had to be the main cause of the defendant's challenged employment decision. Cf. 22 U.S.C. § 2688. But none of this is the law we have. If anything, Congress has moved in the opposite direction, supplementing Title VII in 1991 to allow a plaintiff to prevail merely by showing that a protected trait like sex was a "motivating factor" in a defendant's challenged employment practice. Civil Rights Act of 1991, § 107, 105 Stat. 1075, codified at 42 U.S.C. § 2000e-2(m). Under this more forgiving standard, liability can sometimes follow even if sex wasn't a but-for cause of the employer's challenged decision. Still, because nothing in our analysis depends on the motivating factor test, we focus on the more traditional but-for causation standard that continues to afford a viable, if no longer exclusive, path to relief under Title VII. § 2000e-2(a)(1). As sweeping as even the but-for causation standard can be, Title VII does not concern itself with everything that happens "because of " sex. The statute imposes liability on employers only when they "fail or refuse to hire," "discharge," "or otherwise... discriminate against" someone because of a statutorily protected characteristic like sex. Ibid. The employers acknowledge that they discharged the plaintiffs in today's cases, but assert that the statute's list of verbs is qualified by the last item on it: "otherwise... discriminate against." By virtue of the word otherwise, the employers suggest, Title VII concerns itself not with every discharge, only with those discharges that involve discrimination. Accepting this point, too, for argument's sake, the question becomes: What did "discriminate" mean in 1964? As it turns out, it meant then roughly what it means today: "To make a difference in treatment or favor (of one as compared with others)." Webster's New International Dictionary 745 (2d ed. 1954). To "discriminate against" a person, then, would seem to mean treating that individual worse than others who are similarly situated. See Burlington N. & S. F. R. Co. v. White, 548 U.S. 53, 59, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). In so-called "disparate treatment" cases like today's, this Court has also held that the difference in treatment based on sex must be intentional. See, e.g., Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988). So, taken together, an employer who intentionally treats a person worse because of sex-such as by firing the person for actions or attributes it would tolerate in an individual of another sex-discriminates against that person in violation of Title VII. At first glance, another interpretation might seem possible. Discrimination sometimes involves "the act, practice, or an instance of discriminating categorically rather than individually." Webster's New Collegiate Dictionary 326 (1975); see also post, at 1768- 1769, n. 22 (ALITO, J., dissenting). On that understanding, the statute would require us to consider the employer's treatment of groups rather than individuals, to see how a policy affects one sex as a whole versus the other as a whole. That idea holds some intuitive appeal too. Maybe the law concerns itself simply with ensuring that employers don't treat women generally less favorably than they do men. So how can we tell which sense, individual or group, "discriminate" carries in Title VII? The statute answers that question directly. It tells us three times-including immediately after the words "discriminate against"-that our focus should be on individuals, not groups: Employers may not "fail or refuse to hire or... discharge any individual, or otherwise... discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's... sex." § 2000e-2(a)(1) (emphasis added). And the meaning of "individual" was as uncontroversial in 1964 as it is today: "A particular being as distinguished from a class, species, or collection." Webster's New International Dictionary, at 1267. Here, again, Congress could have written the law differently. It might have said that "it shall be an unlawful employment practice to prefer one sex to the other in hiring, firing, or the terms or conditions of employment." It might have said that there should be no "sex discrimination," perhaps implying a focus on differential treatment between the two sexes as groups. More narrowly still, it could have forbidden only "sexist policies" against women as a class. But, once again, that is not the law we have. The consequences of the law's focus on individuals rather than groups are anything but academic. Suppose an employer fires a woman for refusing his sexual advances. It's no defense for the employer to note that, while he treated that individual woman worse than he would have treated a man, he gives preferential treatment to female employees overall. The employer is liable for treating this woman worse in part because of her sex. Nor is it a defense for an employer to say it discriminates against both men and women because of sex. This statute works to protect individuals of both sexes from discrimination, and does so equally. So an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it. B From the ordinary public meaning of the statute's language at the time of the law's adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn't matter if other factors besides the plaintiff's sex contributed to the decision. And it doesn't matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee's sex when deciding to discharge the employee-put differently, if changing the employee's sex would have yielded a different choice by the employer-a statutory violation has occurred. Title VII's message is "simple but momentous": An individual employee's sex is "not relevant to the selection, evaluation, or compensation of employees." Price Waterhouse v. Hopkins, 490 U.S. 228, 239, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion). The statute's message for our cases is equally simple and momentous: An individual's homosexuality or transgender status is not relevant to employment decisions. That's because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer's mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee's sex, and the affected employee's sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee's sex plays an unmistakable and impermissible role in the discharge decision. That distinguishes these cases from countless others where Title VII has nothing to say. Take an employer who fires a female employee for tardiness or incompetence or simply supporting the wrong sports team. Assuming the employer would not have tolerated the same trait in a man, Title VII stands silent. But unlike any of these other traits or actions, homosexuality and transgender status are inextricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex. Nor does it matter that, when an employer treats one employee worse because of that individual's sex, other factors may contribute to the decision. Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing "because of sex" if the employer would have tolerated the same allegiance in a male employee. Likewise here. When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play-both the individual's sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn't care. If an employer would not have discharged an employee but for that individual's sex, the statute's causation standard is met, and liability may attach. Reframing the additional causes in today's cases as additional intentions can do no more to insulate the employers from liability. Intentionally burning down a neighbor's house is arson, even if the perpetrator's ultimate intention (or motivation) is only to improve the view. No less, intentional discrimination based on sex violates Title VII, even if it is intended only as a means to achieving the employer's ultimate goal of discriminating against homosexual or transgender employees. There is simply no escaping the role intent plays here: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking. Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee's wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman. To be sure, that employer's ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual's sex. An employer musters no better a defense by responding that it is equally happy to fire male and female employees who are homosexual or transgender. Title VII liability is not limited to employers who, through the sum of all of their employment actions, treat the class of men differently than the class of women. Instead, the law makes each instance of discriminating against an individual employee because of that individual's sex an independent violation of Title VII. So just as an employer who fires both Hannah and Bob for failing to fulfill traditional sex stereotypes doubles rather than eliminates Title VII liability, an employer who fires both Hannah and Bob for being gay or transgender does the same. At bottom, these cases involve no more than the straightforward application of legal terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII's plain terms-and that "should be the end of the analysis." 883 F.3d at 135 (Cabranes, J., concurring in judgment). C If more support for our conclusion were required, there's no need to look far. All that the statute's plain terms suggest, this Court's cases have already confirmed. Consider three of our leading precedents. In Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971) (per curiam ), a company allegedly refused to hire women with young children, but did hire men with children the same age. Because its discrimination depended not only on the employee's sex as a female but also on the presence of another criterion-namely, being a parent of young children-the company contended it hadn't engaged in discrimination "because of " sex. The company maintained, too, that it hadn't violated the law because, as a whole, it tended to favor hiring women over men. Unsurprisingly by now, these submissions did not sway the Court. That an employer discriminates intentionally against an individual only in part because of sex supplies no defense to Title VII. Nor does the fact an employer may happen to favor women as a class. In Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978), an employer required women to make larger pension fund contributions than men. The employer sought to justify its disparate treatment on the ground that women tend to live longer than men, and thus are likely to receive more from the pension fund over time. By everyone's admission, the employer was not guilty of animosity against women or a "purely habitual assumptio[n] about a woman's inability to perform certain kinds of work"; instead, it relied on what appeared to be a statistically accurate statement about life expectancy. Id., at 707-708, 98 S.Ct. 1370. Even so, the Court recognized, a rule that appears evenhanded at the group level can prove discriminatory at the level of individuals. True, women as a class may live longer than men as a class. But "[t]he statute's focus on the individual is unambiguous," and any individual woman might make the larger pension contributions and still die as early as a man. Id., at 708, 98 S.Ct. 1370. Likewise, the Court dismissed as irrelevant the employer's insistence that its actions were motivated by a wish to achieve classwide equality between the sexes: An employer's intentional discrimination on the basis of sex is no more permissible when it is prompted by some further intention (or motivation), even one as prosaic as seeking to account for actuarial tables. Ibid. The employer violated Title VII because, when its policy worked exactly as planned, it could not "pass the simple test" asking whether an individual female employee would have been treated the same regardless of her sex. Id., at 711, 98 S.Ct. 1370. In Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), a male plaintiff alleged that he was singled out by his male co-workers for sexual harassment. The Court held it was immaterial that members of the same sex as the victim committed the alleged discrimination. Nor did the Court concern itself with whether men as a group were subject to discrimination or whether something in addition to sex contributed to the discrimination, like the plaintiff's conduct or personal attributes. "[A]ssuredly," the case didn't involve "the principal evil Congress was concerned with when it enacted Title VII." Id., at 79, 118 S.Ct. 998. But, the Court unanimously explained, it is "the provisions of our laws rather than the principal concerns of our legislators by which we are governed." Ibid. Because the plaintiff alleged that the harassment would not have taken place but for his sex-that is, the plaintiff would not have suffered similar treatment if he were female-a triable Title VII claim existed. The lessons these cases hold for ours are by now familiar. First, it's irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. In Manhart, the employer called its rule requiring women to pay more into the pension fund a "life expectancy" adjustment necessary to achieve sex equality. In Phillips, the employer could have accurately spoken of its policy as one based on "motherhood." In much the same way, today's employers might describe their actions as motivated by their employees' homosexuality or transgender status. But just as labels and additional intentions or motivations didn't make a difference in Manhart or Phillips, they cannot make a difference here. When an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex. And that is all Title VII has ever demanded to establish liability. Second, the plaintiff's sex need not be the sole or primary cause of the employer's adverse action. In Phillips, Manhart, and Oncale, the defendant easily could have pointed to some other, nonprotected trait and insisted it was the more important factor in the adverse employment outcome. So, too, it has no significance here if another factor-such as the sex the plaintiff is attracted to or presents as-might also be at work, or even play a more important role in the employer's decision. Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. As Manhart teaches, an employer is liable for intentionally requiring an individual female employee to pay more into a pension plan than a male counterpart even if the scheme promotes equality at the group level. Likewise, an employer who intentionally fires an individual homosexual or transgender employee in part because of that individual's sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule. III What do the employers have to say in reply? For present purposes, they do not dispute that they fired the plaintiffs for being homosexual or transgender. Sorting out the true reasons for an adverse employment decision is often a hard business, but none of that is at issue here. Rather, the employers submit that even intentional discrimination against employees based on their homosexuality or transgender status supplies no basis for liability under Title VII. The employers' argument proceeds in two stages. Seeking footing in the statutory text, they begin by advancing a number of reasons why discrimination on the basis of homosexuality or transgender status doesn't involve discrimination because of sex. But each of these arguments turns out only to repackage errors we've already seen and this Court's precedents have already rejected. In the end, the employers are left to retreat beyond the statute's text, where they fault us for ignoring the legislature's purposes in enacting Title VII or certain expectations about its operation. They warn, too, about consequences that might follow a ruling for the employees. But none of these contentions about what the employers think the law was meant to do, or should do, allow us to ignore the law as it is. A Maybe most intuitively, the employers assert that discrimination on the basis of homosexuality and transgender status aren't referred to as sex discrimination in ordinary conversation. If asked by a friend (rather than a judge) why they were fired, even today's plaintiffs would likely respond that it was because they were gay or transgender, not because of sex. According to the employers, that conversational answer, not the statute's strict terms, should guide our thinking and suffice to defeat any suggestion that the employees now before us were fired because of sex. Cf. post, at 1755 - 1756 (ALITO, J., dissenting); post, at 1826 - 1829 (KAVANAUGH, J., dissenting). But this submission rests on a mistaken understanding of what kind of cause the law is looking for in a Title VII case. In conversation, a speaker is likely to focus on what seems most relevant or informative to the listener. So an employee who has just been fired is likely to identify the primary or most direct cause rather than list literally every but-for cause. To do otherwise would be tiring at best. But these conversational conventions do not control Title VII's legal analysis, which asks simply whether sex was a but-for cause. In Phillips, for example, a woman who was not hired under the employer's policy might have told her friends that her application was rejected because she was a mother, or because she had young children. Given that many women could be hired under the policy, it's unlikely she would say she was not hired because she was a woman. But the Court did not hesitate to recognize that the employer in Phillips discriminated against the plaintiff because of her sex. Sex wasn't the only factor, or maybe even the main factor, but it was one but-for cause-and that was enough. You can call the statute's but-for causation test what you will-expansive, legalistic, the dissents even dismiss it as wooden or literal. But it is the law. Trying another angle, the defendants before us suggest that an employer who discriminates based on homosexuality or transgender status doesn't intentionally discriminate based on sex, as a disparate treatment claim requires. See post, at 1758 - 1760 (ALITO, J., dissenting); post, at 1828 - 1829 (KAVANAUGH, J., dissenting). But, as we've seen, an employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. An employer that announces it will not employ anyone who is homosexual, for example, intends to penalize male employees for being attracted to men and female employees for being attracted to women. What, then, do the employers mean when they insist intentional discrimination based on homosexuality or transgender status isn't intentional discrimination based on sex? Maybe the employers mean they don't intend to harm one sex or the other as a class. But as should be clear by now, the statute focuses on discrimination against individuals, not groups. Alternatively, the employers may mean that they don't perceive themselves as motivated by a desire to discriminate based on sex. But nothing in Title VII turns on the employer's labels or any further intentions (or motivations) for its conduct beyond sex discrimination. In Manhart, the employer intentionally required women to make higher pension contributions only to fulfill the further purpose of making things more equitable between men and women as groups. In Phillips, the employer may have perceived itself as discriminating based on motherhood, not sex, given that its hiring policies as a whole favored women. But in both cases, the Court set all this aside as irrelevant. The employers' policies involved intentional discrimination because of sex, and Title VII liability necessarily followed. Aren't these cases different, the employers ask, given that an employer could refuse to hire a gay or transgender individual without ever learning the applicant's sex? Suppose an employer asked homosexual or transgender applicants to tick a box on its application form. The employer then had someone else redact any information that could be used to discern sex. The resulting applications would disclose which individuals are homosexual or transgender without revealing whether they also happen to be men or women. Doesn't that possibility indicate that the employer's discrimination against homosexual or transgender persons cannot be sex discrimination? No, it doesn't. Even in this example, the individual applicant's sex still weighs as a factor in the employer's decision. Change the hypothetical ever so slightly and its flaws become apparent. Suppose an employer's application form offered a single box to check if the applicant is either black or Catholic. If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant's race or religion? Of course not: By intentionally setting out a rule that makes hiring turn on race or religion, the employer violates the law, whatever he might know or not know about individual applicants. The same holds here. There is no way for an applicant to decide whether to check the homosexual or transgender box without considering sex. To see why, imagine an applicant doesn't know what the words homosexual or transgender mean. Then try writing out instructions for who should check the box without using the words man, woman, or sex (or some synonym). It can't be done. Likewise, there is no way an employer can discriminate against those who check the homosexual or transgender box without discriminating in part because of an applicant's sex. By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals' sex, even if it never learns any applicant's sex. Next, the employers turn to Title VII's list of protected characteristics-race, color, religion, sex, and national origin. Because homosexuality and transgender status can't be found on that list and because they are conceptually distinct from sex, the employers reason, they are implicitly excluded from Title VII's reach. Put another way, if Congress had wanted to address these matters in Title VII, it would have referenced them specifically. Cf. post, at 1757 - 1758 (ALITO, J., dissenting); post, at 1828 - 1830 (KAVANAUGH, J., dissenting). But that much does not follow. We agree that homosexuality and transgender status are distinct concepts from sex. But, as we've seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a "canon of donut holes," in which Congress's failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has always approached Title VII. "Sexual harassment" is conceptually distinct from sex discrimination, but it can fall within Title VII's sweep. Oncale, 523 U.S. at 79-80, 118 S.Ct. 998. Same with "motherhood discrimination." See Phillips, 400 U.S. at 544, 91 S.Ct. 496. Would the employers have us reverse those cases on the theory that Congress could have spoken to those problems more specifically? Of course not. As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them. The employers try the same point another way. Since 1964, they observe, Congress has considered several proposals to add sexual orientation to Title VII's list of protected characteristics, but no such amendment has become law. Meanwhile, Congress has enacted other statutes addressing other topics that do discuss sexual orientation. This postenactment legislative history, they urge, should tell us something. Cf. post, at 1754 - 1755, 1776 - 1778 (ALITO, Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

B

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice O’Connor delivered the opinion of the Court. We granted certiorari to decide whether and, if so, under what circumstances, a prosecutor may elicit testimony from a mental health professional concerning the content of an interview conducted to explore the possibility of presenting psychiatric defenses at trial. We also agreed to review the Court of Appeals’ determination that any error in the admission of the psychiatrist’s evidence in this case was irrelevant under the holding of Zant v. Stephens, 462 U. S. 862 (1983). On examination, however, we conclude that petitioner defaulted his underlying constitutional claim by failing to press it before the Supreme Court of Virginia on direct appeal. Accordingly, we decline to address the merits of petitioner’s claims and affirm the judgment dismissing the petition for a writ of habeas corpus. I Following a jury trial, petitioner was convicted of the May 1977 murder of Audrey Weiler. According to his confession, petitioner encountered Ms. Weiler in a secluded area near his home and raped her at knifepoint. Fearing that her testimony could send him back to prison, he then grabbed her by the neck and choked her until she fell unconscious. When he realized that she was still alive, he dragged her into a nearby river, submerged her head, and repeatedly stabbed her with his knife. A subsequent medical examination indicated that the death was attributable to three clusters of lethal injuries: asphyxia from strangulation, drowning, and multiple stab wounds. Prior to the trial, petitioner’s appointed counsel, David Pugh, had explored the possibility of presenting a number of psychiatric defenses. Towards that end, Mr. Pugh requested that the trial court appoint a private psychiatrist, Dr. Wendell Pile, to conduct an examination of petitioner. Aware that psychiatric reports were routinely forwarded to the court and that such reports were then admissible under Virginia law, Mr. Pugh had advised petitioner not to discuss any prior criminal episodes with anyone. App. 134. See Gibson v. Commonwealth, 216 Va. 412, 219 S. E. 2d 845 (1975). Although that general advice was intended to apply to the forthcoming psychiatric examination, Mr. Pugh later testified that he “did not specifically tell [petitioner] not to say anything to Doctor Pile about the offense or any offenses.” App. 132. During the course of the examination, Dr. Pile did in fact ask petitioner both about the murder and about prior incidents of deviant sexual conduct. Tr. of State Habeas Hearing 19. Although petitioner initially declined to answer, he later stated that he had once torn the clothes off a girl on a school bus before deciding not to carry out his original plan to rape her. App. 44. That information, together with a tentative diagnosis of “Sociopathic Personality; Sexual Deviation (rape),” was forwarded to the trial court, with copies sent both to Mr. Pugh and to the prosecutor who was trying the case for the Commonwealth. Id., at 43-45. At no point prior to or during the interview did Dr. Pile inform petitioner that his statements might later be used against him or that he had the right to remain silent and to have counsel present if he so desired. Id., at 90. Cf. Estelle v. Smith, 451 U. S. 454 (1981). At the sentencing phase of the trial, the Commonwealth called Dr. Pile to the stand. Over the defense’s objection, Dr. Pile described the incident on the school bus. Tr. 934-935. On cross-examination, he repeated his earlier conclusion that petitioner was a “sociopathic personality.” Id., at 936. After examining a second psychiatrist, the Commonwealth introduced petitioner’s criminal record into evidence. It revealed that he had been convicted of rape in 1973 and had been paroled from the penitentiary on that charge less than four months prior to raping and murdering Ms. Weiler. The defense then called 14 character witnesses, who testified that petitioner had been a regular churchgoer, a member of the choir, a conscientious student in high school, and a good soldier in Vietnam. After lengthy deliberation, the jury recommended that petitioner be sentenced to death. Petitioner appealed his conviction and sentence to the Supreme Court of Virginia. In his brief he raised 13 separate claims, including a broad challenge to the constitutionality of Virginia’s death penalty provisions, objections to several of the trial court’s evidentiary rulings, and a challenge to the exclusion of a prospective juror during voir dire. Petitioner did not, however, assign any error concerning the admission of Dr. Pile’s testimony. At a subsequent state postconviction hearing, Mr. Pugh explained that he had consciously decided not to pursue that claim after determining that “Virginia case law would [not] support our position at that particular time.” App. 143. Various objections to the Commonwealth’s use of Dr. Pile’s testimony were raised, however, in a brief filed by amicus curiae Post-Conviction Assistance Project of the University of Virginia Law School. The Supreme Court of Virginia affirmed the conviction and sentence in all respects. Smith v. Commonwealth, 219 Va. 455, 248 S. E. 2d 135 (1978). In a footnote, it noted that, pursuant to a rule of the court, it had considered only those arguments advanced by amicus that concerned errors specifically assigned by the defendant himself. Id., at 460, n. 1, 248 S. E. 2d, at 139, n. 1. Accordingly, it did not address any issues concerning the prosecution’s use of the psychiatric testimony. This Court denied the subsequent petition for certiorari, which, again, did not urge the claim that admission of Dr. Pile’s testimony violated petitioner’s rights under the Federal Constitution. 441 U. S. 967 (1979). In 1979, petitioner sought a writ of habeas corpus in the Circuit Court for the City of Williamsburg and the County of James City. For the first time since the trial, he argued that the admission of Dr. Pile’s testimony violated his privilege against self-incrimination under the Fifth and Fourteenth Amendments to the Federal Constitution. The court ruled, however, that petitioner had forfeited the claim by failing to press it in earlier proceedings. At a subsequent evidentiary hearing, conducted solely on the issue of ineffective assistance of counsel, the court heard testimony concerning the reasons underlying Mr. Pugh’s decision not to pursue the Fifth Amendment claim on appeal. On the basis of that testimony, the court found that Pugh and his assistant had researched the question, but had determined that the claim was unlikely to succeed. Thus, the court found, “counsel exercised reasonable judgment in deciding not to preserve the objection on appeal, and . . . this decision resulted from informed, professional deliberation.” App. to Pet. for Cert. 71. Petitioner appealed the denial of his habeas petition to the Supreme Court of Virginia, contending that the Circuit Court had erred in finding that his objection to the admission of Dr. Pile’s testimony had been defaulted. The Supreme Court declined to accept the appeal, Smith v. Morris, 221 Va. cxliii (1981), and we again denied certiorari. 454 U. S. 1128 (1981). Having exhausted state remedies, petitioner sought a writ of habeas corpus in the United States District Court for the Eastern District of Virginia. In an unpublished order, the court denied the petition, holding that the objection to the admission of Dr. Pile’s testimony was “clearly barred” under this Court’s decision in Wainwright v. Sykes, 433 U. S. 72 (1977). App. 158. In reaching that conclusion, the District Judge noted that “the default resulted not from the trial attorney’s ignorance or inadvertence, but because of a deliberate tactical decision.” Ibid. The Court of Appeals for the Fourth Circuit affirmed, but on different grounds. Smith v. Procunier, 769 F. 2d 170 (1985). Finding it unnecessary to rely on procedural default or to address the merits of the substantive constitutional claim, the court held that admission of Dr. Pile’s testimony, even if erroneous, could not be the basis for invalidating petitioner’s sentence. It noted that the jury had relied on two distinct aggravating factors in its decision to recommend the death penalty. The psychiatric testimony, however, only bore on one of those factors, the likelihood that petitioner would “constitute a continuing serious threat to society.” Va. Code § 19.2-264.2 (1983); Tr. 1102. In that circumstance, the Court of Appeals believed, our decision in Zant v. Stephens, 462 U. S., at 884, required the conclusion that the error, if any, was irrelevant to the overall validity of the sentence. We granted certiorari, Smith v. Sielaff, 474 U. S. 918 (1985), and now affirm on the authority of our decision in Murray v. Carrier, ante, p. 478. I — I HH Under Virginia law, failure to raise a claim on direct appeal from a criminal conviction ordinarily bars consideration of that claim in any subsequent state proceeding. See, e. g., Coppola v. Warden of Virginia State Penitentiary, 222 Va. 369, 282 S. E. 2d 10 (1981); Slayton v. Parrigan, 215 Va. 27, 205 S. E. 2d 680 (1974). In the present case, the Virginia courts have enforced that rule by declining to consider petitioner’s objection to the admission of Dr. Pile’s testimony, a claim concededly not included in his initial appeal from his conviction and sentence. Consistent with our earlier intimations in Reed v. Ross, 468 U. S. 1, 11 (1984), we held in Murray v. Carrier, ante, p. 478, that a federal habeas court must evaluate appellate defaults under the same standards that apply when a defendant fails to preserve a claim at trial. Accordingly, although federal courts at all times retain the power to look beyond state procedural forfeitures, the exercise of that power ordinarily is inappropriate unless the defendant succeeds in showing both “cause” for noncompliance with the state rule and “actual prejudice resulting from the alleged constitutional violation.” Wainwright v. Sykes, supra, at 84; Murray v. Carrier, ante, at 485. As we explained more fully in Carrier, this congruence between the standards for appellate and trial default reflects our judgment that concerns for finality and comity are virtually identical regardless of the timing of the defendant’s failure to comply with legitimate state rules of procedure. We need not determine whether petitioner has carried his burden of showing actual prejudice from the allegedly improper admission of Dr. Pile’s testimony, for we think it self-evident that he has failed to demonstrate cause for his noncompliance with Virginia’s procedures. We have declined in the past to essay a comprehensive catalog of the circumstances that would justify a finding of cause. Reed v. Ross, supra, at 13; see also Wainwright v. Sykes, supra, at 91. Our cases, however, leave no doubt that a deliberate, tactical decision not to pursue a particular claim is the very antithesis of the kind of circumstance that would warrant excusing a defendant’s failure to adhere to a State’s legitimate rules for the fair and orderly disposition of its criminal cases. As the Court explained in Reed: “[DJefense counsel may not make a tactical decision to forgo a procedural opportunity — for instance, to object at trial or to raise an issue on appeal — and then when he discovers that the tactic has been unsuccessful, pursue an alternative strategy in federal court. The encouragement of such conduct by a federal court on habeas corpus review would not only offend generally accepted principles of comity, but would undermine the accuracy and efficiency of the state judicial systems to the detriment of all concerned. Procedural defaults of this nature are, therefore, inexcusable, and cannot qualify as ‘cause’ for purposes of federal habeas corpus review.” 468 U. S., at 14 (internal quotation and citation omitted). Here the record unambiguously reveals that petitioner’s counsel objected to the admission of Dr. Pile’s testimony at trial and then consciously elected not to pursue that claim before the Supreme Court of Virginia. The basis for that decision was counsel’s perception that the claim had little chance of success in the Virginia courts. With the benefit of hindsight, petitioner’s counsel in this Court now contends that this perception proved to be incorrect. Cf. Gibson v. Zahradnick, 581 F. 2d 75 (CA4 1978) (repudiating reasoning of Gibson v. Commonwealth, 216 Va. 412, 219 S. E. 2d 845 (1975)). Even assuming that to be the case, however, a State’s subsequent acceptance of an argument deliberately abandoned on direct appeal is irrelevant to the question whether the default should be excused on federal habeas. Indeed, it is the very prospect that a state court “may decide, upon reflection, that the contention is valid” that undergirds the established rule that “perceived futility alone cannot constitute cause,” Engle v. Isaac, 456 U. S. 107, 130, and n. 36 (1982); for “[ajllowing criminal defendants to deprive the state courts of [the] opportunity” to reconsider previously rejected constitutional claims is fundamentally at odds with the principles of comity that animate Sykes and its progeny. Id., at 130. Notwithstanding the deliberate nature of the decision not to pursue his objection to Dr. Pile’s testimony on appeal — a course of conduct virtually dispositive of any effort to satisfy Syke’s “cause” requirement — petitioner contends that the default should be excused because Mr. Pugh’s decision, though deliberate, was made in ignorance. Had he investigated the claim more fully, petitioner maintains, “it is inconceivable that he would have concluded that the claim was without merit or that he would have failed to raise it.” Reply Brief for Petitioner 3. The argument is squarely foreclosed by our decision in Carrier, which holds that “the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.” Ante, at 486-487. See also Engle v. Isaac, supra, at 133-134. Nor can it seriously be maintained that the decision not to press the claim on appeal was an error of such magnitude that it rendered counsel’s performance constitutionally deficient under the test of Strickland v. Washington, 466 U. S. 668 (1984). Carrier reaffirmed that “the right to effective assistance of counsel. . . may in a particular case be violated by even an isolated error . . . if that error is sufficiently egregious and prejudicial.” Ante, at 496; see also United States v. Cronic, 466 U. S. 648, 657, n. 20 (1984). But counsel’s deliberate decision not to pursue his objection to the admission of Dr. Pile’s testimony falls far short of meeting that rigorous standard. After conducting a vigorous defense at both the guilt and sentencing phases of the trial, counsel surveyed the extensive transcript, researched a number of claims, and decided that, under the current state of the law, 13 were worth pursuing on direct appeal. This process of “winnowing out weaker arguments on appeal and focusing on” those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy. Jones v. Barnes, 463 U. S. 745, 751-752 (1983). It will often be the case that even the most informed counsel will fail to anticipate a state appellate court’s willingness to reconsider a prior holding or will underestimate the likelihood that a federal habeas court will repudiate an established state rule. But, as Strickland v. Washington made clear, “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” 466 U. S., at 689. Viewed in light of Virginia law at the time Mr. Pugh submitted his opening brief to the Supreme Court of Virginia, the decision not to pursue his objection to the admission of Dr. Pile’s testimony fell well within the “wide range of professionally competent assistance” required under the Sixth Amendment to the Federal Constitution. Id., at 690. Nor can petitioner rely on the novelty of his legal claim as “cause” for noncompliance with Virginia’s rules. See Reed v. Ross, 468 U. S., at 18 (“[W]here a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures”). Petitioner contends that this Court’s decisions in Estelle v. Smith, 451 U. S. 454 (1981), and Ake v. Oklahoma, 470 U. S. 68 (1985), which were decided well after the affirmance of his conviction and sentence on direct appeal, lend support to his position that Dr. Pile’s testimony should have been excluded. But, as a comparison of Reed and Engle makes plain, the question is not whether subsequent legal developments have made counsel’s task easier, but whether at the time of the default the claim was “available” at all. As petitioner has candidly conceded, various forms of the claim he now advances had been percolating in the lower courts for years at the time of his original appeal. Brief for Petitioner 20-21, n. 12; Reply Brief for Petitioner 3. Moreover, in this very case, an amicus before the Supreme Court of Virginia specifically argued that admission of Dr. Pile’s testimony violated petitioner’s rights under the Fifth and Sixth Amendments. Brief for Post-Conviction Assistance Project of the University of Virginia Law School as Amicus Curiae in No. 780293, pp. 53-62. Under these circumstances, it simply is not open to argument that the legal basis of the claim petitioner now presses on federal habeas was unavailable to counsel at the time of the direct appeal. We conclude, therefore, that petitioner has not carried his burden of showing cause for noncompliance with Virginia’s rules of procedure. That determination, however, does not end our inquiry. As we noted in Engle and reaffirmed in Carrier, “ ‘[i]n appropriate cases’ the principles of comity and finality that inform the concepts of cause and prejudice ‘must yield to the imperative of correcting a fundamentally unjust incarceration.’” Murray v. Carrier, ante, at 495, quoting Engle v. Isaac, supra, at 135. Accordingly, “where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” Murray v. Carrier, ante, at 496. We acknowledge that the concept of “actual,” as distinct from “legal,” innocence does not translate easily into the context of an alleged error at the sentencing phase of a trial on a capital offense. Nonetheless, we think it clear on this record that application of the cause and prejudice test will not result in a “fundamental miscarriage of justice.” Engle, 456 U. S., at 135. There is no allegation that the testimony about the school bus incident was false or in any way misleading. Nor can it be argued that the prospect that Dr. Pile might later testify against him had the effect of foreclosing meaningful exploration of psychiatric defenses. While that concern is a very real one in the abstract, here the record clearly shows that Dr. Pile did ask petitioner to discuss the crime he stood accused of committing as well as prior incidents of deviant sexual conduct. Although initially reluctant to do so, ultimately petitioner was forthcoming on both subjects. In short, the alleged constitutional error neither precluded the development of true facts nor resulted in the admission of false ones. Thus, even assuming that, as a legal matter, Dr. Pile’s testimony should not have been presented to the jury, its admission did not serve to pervert the jury’s deliberations concerning the ultimate question whether in fact petitioner constituted a continuing threat to society. Under these circumstances, we do not believe that refusal to consider the defaulted claim on federal habeas carries with it the risk of a manifest miscarriage of justice. Nor can we concur in Justice Stevens’ suggestion that we displace established procedural default principles with an amorphous “fundamental fairness” inquiry. Post, at 542-543. Precisely which parts of the Constitution are “fundamental” and which are not is left for future elaboration. But, for Justice Stevens, when a defendant in a capital case raises a “substantial, colorable” constitutional claim, a federal court should entertain it no matter how egregious the violation of state procedural rules, and regardless of the fairness of the opportunity to raise that claim in the course of his trial and appeal. Post, at 546. We reject the suggestion that the principles of Wainwright v. Sykes apply differently depending on the nature of the penalty a State imposes for the violation of its criminal laws. We similarly reject the suggestion that there is anything “fundamentally unfair” about enforcing procedural default rules in cases devoid of any substantial claim that the alleged error undermined the accuracy of the guilt or sentencing determination. In view of the profound societal costs that attend the exercise of ha-beas jurisdiction, such exercise “carries a serious burden of justification.” H. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 146 (1970); see also Engle v. Isaac, supra, at 126-129. When the alleged error is unrelated to innocence, and when the defendant was represented by competent counsel, had a full and fair opportunity to press his claim in the state system, and yet failed to do so in violation of a legitimate rule of procedure, that burden has not been carried. Accordingly, we affirm the judgment of the Court of Appeals upholding the dismissal of petitioner’s application for a writ of habeas corpus. Affirmed. [For dissenting opinion of Justice Brennan, see ante, p. 516.] Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

A

sc_issuearea

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Justice Blackmun delivered the opinion of the Court. The question presented is whether a Texas property tax on bank shares, computed on the basis of the bank’s net assets without any deduction for tax-exempt United States obligations held by the bank, violates Rev. Stat. § 3701, as amended. The Texas Court of Civil Appeals ruled that it did not. I Until 1959, Rev. Stat. §3701, 31 U. S. C. §742, provided, in pertinent part, that “[a]ll stocks, bonds, Treasury notes, and other obligations of the United States, shall be exempt from taxation by or under State or municipal or local authority.” This Court consistently held that this language prohibited state taxes imposed on federal obligations, either directly, or indirectly as part of a tax on the taxpayer’s total property or assets. See Society for Savings v. Bowers, 349 U. S. 143, 147-148 (1955). The Court also consistently held, however, that § 3701 did not prohibit nondiscriminatory taxes imposed on discrete property interests such as corporate shares or business franchises, even though the value of that discrete interest was measured by the underlying assets, including United States obligations. See Werner Machine Co. v. Director of Taxation, 350 U. S. 492, 493-494 (1956); Society for Savings v. Bowers, 349 U. S., at 147-148; Des Moines National Bank v. Fairweather, 263 U. S. 103, 112 (1923); Home Savings Bank v. Des Moines, 205 U. S. 503, 518-519 (1907); Provident Institution v. Massachusetts, 6 Wall. 611, 629-632 (1868). Similarly, the Court interpreted Rev. Stat. § 3701 not to prohibit taxes imposed on a discrete transaction, such as an inheritance, even though the value of the inheritance was measured according to the value of the federal obligations transferred. Plummer v. Coler, 178 U. S. 115, 133-134 (1900). In 1956, the Court observed that this formal but economically meaningless distinction between taxes on Government obligations and taxes on separate interests was “firmly embedded in the law.” Society for Savings v. Bowers, 349 U. S., at 148. In 1959, Congress amended § 3701 by adding a second sentence: “This exemption extends to every form of taxation that would require that either the obligations or the interest thereon, or both, be considered, directly or indirectly, in the computation of the tax,” with exceptions only for nondiscriminatory franchise taxes or other nonproperty taxes, and for estate or inheritance taxes. Act of Sept. 22, 1959, § 105(a), 73 Stat. 622. The issue is whether this amendment extends to a state bank shares tax. HH HH In 1979 and 1980, Texas imposed a property tax on bank shares and a separate tax on the real estate holdings of banks. Tex. Rev. Civ. Stat. Ann., Art. 7166 (Vernon I960). It required each bank doing business in the State to report its real estate to the local tax assessor, and to submit a list of its shareholders with the number of shares owned by each. The shareholders were required to report the actual value of their shares to the assessor in the bank’s jurisdiction. To prevent double taxation, each share was to be taxed to the shareholder on the difference between the share’s cash value and the proportionate amount per share of the bank’s real estate assessment. Petitioners are certain state and national banks and their shareholders. Respondents are taxing subdivisions of the State of Texas, and officers and Boards of Equalization of those subdivisions, that levied taxes on petitioners’ bank shares pursuant to Art. 7166. In determining the value of the bank shares subject to the tax, respondents included the value of United States obligations held by the banks. Petitioners sought mandamus, declaratory, and injunctive relief against respondents in state court, asserting that § 3701 required that the value of their bank shares be reduced by the proportionate value of the United States obligations held by the bank. In its initial opinion concerning petitioner Bank of Texas, the Texas Court of Civil Appeals held that the plain language of §3701, as amended, precludes consideration of United States obligations in the computation of any state or local tax. App. to Pet. for Cert. 50a. On motions for rehearing, the court withdrew its original opinion and, instead, upheld the tax. Bank of Texas v. Childs, 615 S. W. 2d 810 (1981). The court stated that, prior to the 1959 amendment to §3701, a different statute, Rev. Stat. § 5219, as amended, 12 U. S. C. §548, had authorized state taxation of shares of national banks without reduction in value for obligations of the United States held by the banks. 615 S. W. 2d, at 817-820. The court concluded that the 1959 amendment to § 3701 had not withdrawn this authorization. 615 S. W. 2d, at 819-820. The court reasoned that if the 1959 amendment had withdrawn the authorization granted by § 5219, in effect it would have repealed a portion of that statute, and that repeals by implication are not favored. 615 S. W. 2d, at 820-822. Similar judgments were entered in companion cases. App. to Pet. for Cert. 2a, 41a. The Court of Civil Appeals denied motions for rehearing, 615 S. W. 2d, at 823-826; App. to Pet. for Cert. 3a, 42a. The Supreme Court of Texas denied applications for writs of error. Id., at 4a, 39a, 43a. Because the decisions of the Court of Civil Appeals appeared to be inconsistent with decisions of the Supreme Court of Montana, and because of the importance of the issue, we granted certiorari. 459 U. S. 966 (1982). Ill A “Absent a clearly expressed legislative intention to the contrary, [the statutory] language must ordinarily be regarded as conclusive.” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980). The exemption for federal obligations provided by §3701, as amended in 1959, is sweeping: with specific exceptions, it “extends to every form of taxation that would require that either the obligations or the interest thereon, or both, be considered, directly or indirectly, in the computation of the tax” (emphasis supplied). See Memphis Bank & Trust Co. v. Garner, 459 U. S. 392, 395-396 (1983) (the statute “establishes a broad exemption”). The 1959 amendment rejected and set aside this Court’s rather formalistic pre-1959 approach to § 3701. Under that approach, if a tax were imposed on a property interest or transaction separate from the ownership of federal obligations, the method by which the tax was computed was entirely irrelevant. Plummer v. Coler, 178 U. S., at 129; Home Ins. Co. v. New York, 134 U. S. 594, 600, 602, 606 (1890). This remained true despite the Court’s recognition that the practical impact of such a tax is indistinguishable from that of a tax imposed directly on corporate assets that include federal obligations. See Society for Savings v. Bowers, 349 U. S., at 148. Under the plain language of the 1959 amendment, however, the tax is barred regardless of its form if federal obligations must be considered, either directly or indirectly, in computing the tax. Giving the words of amended § 3701 their ordinary meaning, there can be no question that federal obligations were considered in computing the bank shares tax at issue here. In context, the word “considered” means taken into account, or included in the accounting. The tax at issue was computed by use of an “equity capital formula,” which involved determining the amount of the bank’s capital assets, subtracting from that figure the bank’s liabilities and the assessed value of the bank’s real estate, and then dividing the result by the number of shares. 615 S. W. 2d, at 816. Plainly, such a tax takes into account, at least indirectly, the federal obligations that constitute a part of the bank’s assets. Cf. Society for Savings v. Bowers, 349 U. S., at 146-147 (tax on total assets of corporation is tax on federal obligations it owns); New Jersey Realty Title Ins. Co. v. Division of Tax Appeals, 338 U. S. 665, 672-673 (1950) (same); Bank Tax Case, 2 Wall. 200, 208-209 (1865) (same). The express exceptions to the 1959 amendment — franchise taxes and estate and inheritance taxes — reinforce this conclusion. Just as state tax laws relating to corporate or bank shares generally assess the shares according to the value of the corporation’s assets, see Society for Savings v. Bowers, 349 U. S., at 148, franchise and estate and inheritance taxes customarily assess the franchise or the demise at the value of the assets of the business or at the value of the property inherited. See, e. g., Werner Machine Co. v. Director of Taxation, 350 U. S., at 492 (franchise tax measured by “net worth”); Plummer v. Coler, 178 U. S., at 134 (inheritance tax measured by “the value of the property passing”); Home Ins. Co. v. New York, 134 U. S., at 599 (franchise tax measured by “capital stock and dividends”). Prior to the 1959 amendment, franchise and estate and inheritance taxes measured by the value of federal obligations, like bank shares taxes, were upheld on the theory that the tax was levied on the franchise or the transfer of property, rather than on the ownership interest in the federal securities themselves. By expressly exempting franchise and estate and inheritance taxes from the amended § 3701, Congress manifested its awareness that the new language would broaden significantly the prohibition as it had been construed by the courts. Congress must have believed that franchise and estate and inheritance taxes required federal obligations to “be considered, directly or indirectly, in the computation of the tax”; otherwise, the specific exemptions for these taxes would have been superfluous. There is no reason to conclude that shares taxes are any different. The language of § 3701 encompasses “every form of taxation,” and is inconsistent with implied exceptions. Cf. Lewis v. United States, 445 U. S. 55, 60-62 (1980). From the specific exceptions for franchise and estate and inheritance taxes, and the conspicuous omission of shares taxes from that group, only one inference is possible: Congress meant to bar shares taxes to the extent they consider federal obligations in the computation of the tax. Cf. Andrus v. Glover Construction Co., 446 U. S. 608, 616 (1980); Andrus v. Allard, 444 U. S. 51, 56 (1979). Respondents Dallas County et al. argue, however, that § 3701 does not prohibit the Texas tax because, on its face, the tax statute does not require use of the equity capital formula or any other formula based on the value of federal obligations. Brief for Respondents Dallas County et al. 10-11. In the present litigation, however, the assessors did use the equity capital formula, which is the usual method for assessing the value of bank shares, see Society for Savings v. Bowers, 349 U. S., at 148, and is “the usual and customary method used in Texas to arrive at such value.” City of Midland v. Midland National Bank, 607 S. W. 2d 303, 304 (1980). Respondents have not cited a single instance where a different formula was employed. Section 3701 prohibits any form of tax that would require consideration of federal obligations in computing the tax; it cannot matter whether such consideration is mandated by the tax assessor in practice or by the state statute in so many words. The taxes at issue therefore violated the plain language of § 3701. B The legislative history of the 1959 amendment to §3701, while not extensive, supports this construction of the amendment’s effect. The catalyst for the amendment was an Idaho tax “upon every individual... which shall be according to and measured by his net income.” See Idaho Code § 63-3011 (1948). Despite this Court’s holding that §3701 precluded direct state taxation of the interest on federal obligations, as well as taxation of the underlying obligations, see New Jersey Realty Title Ins. Co. v. Division of Tax Appeals, 338 U. S., at 675-676, Idaho’s position was that its tax need not exempt the interest received on federal obligations, because it was imposed on the individual and was merely measured by his net income, rather than being imposed on the income itself. See Hearings on Public Debt Ceiling and Interest Rate Ceiling on Bonds before the House Committee on Ways and Means, 86th Cong., 1st Sess., 69-70 (1959) (supplemental statement of Secretary of the Treasury Anderson) (Hearings). In presenting the 1959 amendment to Congress, the Secretary described Idaho’s position as “resting] upon a distinction of words which is without substance.” Id., at 71. Similar accusations had been leveled at this Court’s analogous distinctions between shares taxes and franchise taxes on the one hand, and taxes on corporate assets on the other. Respondents suggest, however, that the 1959 amendment was intended only to make clear that income taxes like Idaho’s, on interest from federal obligations, were unlawful. Congress, according to respondents, did not mean to set aside this Court’s well-established distinction between taxes on assets and taxes on shares. We, however, have found no evidence whatsoever in the legislative history to suggest that Congress considered shares taxes to fall outside the scope of the prohibition. The fact that the 1959 legislative history refers to the Idaho tax, but not specifically to bank shares taxes, does not raise a “negative inference” limiting the amendment to this specific problem. Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 679 (1983). The amendment plainly did more than make clear that the interest on federal obligations was tax exempt. Idaho relied on the formal distinction between a tax on an individual, measured by his net income, and a tax on the income itself. See Hearings, at 70. To answer this argument, the amendment abolished the formalistic inquiry whether the tax is on a distinct interest, and replaced it with the inquiry whether “computation of the tax” requires consideration of federal obligations. Nor can the 1959 amendment be read to apply only to income taxes; it reaches “every form of tax...” (emphasis supplied). Indeed, Congress felt compelled to exempt estate and inheritance and franchise taxes from the scope of its amendment precisely because the amendment was not limited to income taxes. Congress understood the amendment’s effect; both the Senate and House Reports explained that the amendment “makes it clear that both the principal and interest on U. S. obligations are exempt from all State taxes except nondiscriminatory franchise, etc., taxes” (emphasis supplied). Senate Report, at 2; House Report, at 2. Congress intended to sweep away formal distinctions and to invalidate all taxes measured directly or indirectly by the value of federal obligations, except those specified in the amendment. IV In an effort to avoid this result and to resurrect the formalistic approach, respondents embark on a tour of the history of an entirely different statute, Rev. Stat. § 5219, as amended, 12 U. S. C. § 548. Section 5219, they argue, authorizes States to tax the full value of bank shares, and the 1959 amendment to § 3701 did not repeal that authorization by implication. Even if the 1959 Congress abolished the distinction between taxes on and taxes measured by the value of federal obligations, respondents conclude, the Texas tax is valid. It is true, of course, that “repeals by implication are not favored.” Posadas v. National City Bank, 296 U. S. 497, 503 (1936). This doctrine flows from the basic principle that “courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Morton v. Mancari, 417 U. S. 535, 551 (1974). But, at the time the taxes at issue were assessed, § 5219 was clearly capable of coexistence with the plain language of § 3701 as amended in 1959, and there is no justification for construing § 5219 to create an inconsistency. When the taxes challenged here were assessed, and now, § 5219 provided only that States could not impose discriminatory taxes on national banks: “For the purposes of any tax law enacted under authority of the United States or any State, a national bank shall be treated as a bank organized and existing under the laws of the State or other jurisdiction within which its principal office is located.” Section 3701’s requirement that shares taxes on all corporations not consider federal obligations in their computation easily coexists with §5219’s simple ban on discriminatory taxation of national banks. Giving each statute its common-sense meaning, the proper result in these cases could not be more clear. Respondents, though, find an unexpressed exception for bank shares taxes in the plain language of § 3701 by reading into the plain language of §5219 an unexpressed congressional authorization to tax bank shares at their full value. Respondents argue that this silent authorization may be found in § 5219 by looking to the pre-1969 language of that section. Even assuming that such an adventure in statutory-revision would be an appropriate exercise of judicial power, respondents’ argument is based on an unnecessary construction of this earlier version of § 5219. From 1926 until 1969, § 5219 provided that the States could tax national banks in only four ways: (1) by taxing bank shares, (2) by including bank share dividends in the taxable income of a shareholder, (3) by taxing national banks on their net income, or (4) by levying a franchise tax on national banks “according to or measured by their net income. ” Act of Mar. 25, 1926, ch. 88, 44 Stat. 223; see n. 3, supra. Respondents argue that this statute not only permitted these forms of taxation of national banks, but that in so doing it also implicitly authorized the taxation of any federal obligations held by national banks, notwithstanding independent limitations placed on taxation of federal obligations. Although respondents’ reading might be a plausible construction of the prior version of § 5219, the prior version need not be so construed. That version did not mention federal obligations; § 5219 was, and still is, addressed to the concern first considered in McCulloch v. Maryland, 4 Wheat. 316 (1819), where this Court declared that any tax on the operation of a national bank unconstitutionally burdened this instrumentality of the Federal Government. The original predecessor of §5219, §41 of the 1864 National Bank Act, 13 Stat. Ill, permitted state taxation of national banks only on their real estate and shares; such taxes, McCulloch indicated, did not violate the Constitution’s protection of national banks. 4 Wheat., at 436-437. But whether a tax imposes an intolerable burden on national banks, and whether it imposes an intolerable burden on federal obligations by threatening to diminish their value, are questions that are historically and analytically distinct. Section 3701 responds to the latter concern, first addressed in Weston v. City Council of Charleston, 2 Pet. 449 (1829). Congress might well conclude that a tax not imposing an undue burden on national banks does unduly burden federal obligations, and § 5219 and § 3701 have always been directed to, and have protected, these separate federal interests. A state tax affecting national banks holding federal obligations implicates both federal concerns, and therefore confronts both federal barriers to state taxation. Under the statutory scheme in effect in 1959, the year § 3701 was amended, a tax not satisfying the requirements of § 5219 was invalid whether or not it also satisfied the requirements of § 3701. Compare Owensboro National Bank v. Owensboro, 173 U. S. 664, 676, 682-683 (1899) (franchise taxation of national bank violated predecessor to § 5219 prior to 1926 amendment of that statute, which permitted for the first time franchise taxes on national banks), with Provident Institution v. Massachusetts, 6 Wall., at 630-632 (franchise tax on state corporation not unlawful burden on federal obligations). Similarly, there was no reason to believe that a tax that violated § 3701 could be imposed on a bank merely because it did not also violate §5219. Indeed, while §5219 explicitly had permitted the levying of an income tax on national banks since 1923, see Act of Mar. 4, 1923, ch. 267, 42 Stat. 1499, it was never contended that this permitted the inclusion of interest from federal obligations in the national banks’ taxable income. Although it might be inferred from dicta in certain cases that the prior version of § 5219 implicitly authorized a State’s refusal to deduct the value of federal obligations from the assessed value of national bank shares, see, e. g., Cleveland Trust Co. v. Lander, 184 U. S. 111, 115 (1902); Van Allen v. Assessors, 3 Wall. 573, 584-588 (1866), this implication has not been necessary for any of the Court’s decisions in this area. In the context of bank shares taxes, until the 1959 amendment of §3701 the prohibitions of §3701 and §5219 were coextensive. Because they were permitted expressly by § 5219, such taxes did not violate the proscription of taxes on national banks. And regardless of the manner in which a shares tax was computed, it did not violate § 3701 because it was assessed on an interest separate from the federal obligations held by the bank. See, e. g., Society for Savings v. Bowers, 349 U. S., at 147. There was therefore no cause to consider whether § 5219 implicitly granted powers to burden federal obligations held by national banks that otherwise would have been denied by §3701. The prior version of § 5219 thus need not be read as giving implied consent to taxation of federal obligations; on its face it was addressed only to the separate interdiction on taxation of national banks, and it never was necessary to decide whether implicitly it reached further. The plain language of §3701, as amended in 1959, therefore need not be seen as an “implied repeal” of the pre-1969 version of § 5219. The 1959 amendment of § 3701 left § 5219 entirely intact. All taxes on national banks except those enumerated in § 5219 still were unlawful. A shares tax on a national bank still was lawful. The 1959 amendment simply limited the ability of States to consider federal obligations when levying any form of tax, taxes on national banks included. States still could reach the value of federal obligations by imposing the other effective form of taxation permitted by § 5219, a franchise tax, which was expressly excepted from the prohibition contained in the amended language of §3701. The doctrine disfavoring implied repeals thus is irrelevant for these cases. It does not justify the use of an unnecessary construction of the language of an ambiguous statute that no longer is on the books to defeat the plain language of an effective statute. This is particularly true when, as here, the “impairment” of the prior statute is minimal even if the prior statute is construed so as to maximize its conflict with the later one. See Andrus v. Glover Construction Co., 446 U. S., at 618-619. Given its current language, which does not mention or even arguably authorize any form of tax, it would be singularly inappropriate for this Court to hold for the first time that § 5219 authorizes the imposition of taxes that otherwise would violate §3701. V Nothing in the legislative history of the 1959 amendment to §3701 contradicts its plain language. Nor is the plain language of the amendment inconsistent with any other federal statute. In these circumstances, the plain language of § 3701 is controlling. The judgments of the Texas Court of Civil Appeals are therefore reversed. It is so ordered. Justice O’Connor took no part in the consideration or decision of these cases. Section § 3701, as so amended, 31 U. S. C. § 742, read: “[A]ll stocks, bonds, Treasury notes, and other obligations of the United States, shall be exempt from taxation by or under State or municipal or local authority. This exemption extends to every form of taxation that would require that either the obligations or the interest thereon, or both, be considered, directly or indirectly, in the computation of the tax, except nondiscriminatory franchise or other nonproperty taxes in lieu thereof imposed on corporations and except estate taxes or inheritance taxes.” Title 31 of the United States Code was not enacted into positive law until 1982, when it was reformulated without substantive change. Rev. Stat. § 3701, 31 U. S. C. § 742, then was replaced by 31 U. S. C. § 3124(a) (1982 ed.). Act of Sept. 13, 1982, 96 Stat. 877, 945. Because the state taxes at issue here were levied in 1979 and 1980, the former Rev. Stat. § 3701, as amended, rather than the present 31 U. S. C. § 3124(a) (1982 ed.) technically controls these cases. As of January 1, 1982, Art. 7166 was replaced by substantively similar provisions of the Texas Property Tax Code. See Tex. Tax Code Ann. §§21.09, 22.06, 23.11, 25.14 (1982). Until 1982, and at all times pertinent to these cases, Tex. Rev. Civ. Stat. Ann., Art. 7166 (Vernon 1960), read, in relevant part: “Every banking corporation, State or national, doing business in the State shall, in the city or town in which it is located, render its real estate to the tax assessor at the time and in the manner required of individuals. At the time of making such rendition the president or some other officer of said bank shall file with said assessor a sworn statement showing the number and amount of shares of said bank, the name and residence of each shareholder, and the number and amount of shares owned by him. Every shareholder of said bank shall, in the city or town where said bank is located, render at their actual value to the tax assessor all shares owned by him in such bank; and in case of his failure to do so, the assessor shall assess such unrendered shares as other unrendered property. Each share in such bank shall be taxed only for the difference between its actual cash value and the proportionate amount per share at which its real estate is assessed.... Nothing herein shall be so construed as to tax national or State banks, or the shareholders thereof, at a greater rate than is assessed against other moneyed capital in the hands of individuals.” Before its amendment in 1969, Rev. Stat. § 5219, as amended by the Act of Mar. 25, 1926, ch. 88, 44 Stat. 223, 12 U. S. C. § 548, provided, in relevant part: “The legislature of each State may determine and direct, subject to the provisions of this section, the manner and place of taxing all the shares of national banking associations located within its limits. The several States may (1) tax said shares, or (2) include dividends derived therefrom in the taxable income of an owner or holder thereof, or (3) tax such associations on their net income, or (4) according to or measured by their net income....” The statute required that any such tax comply with certain conditions, principally designed to prohibit discrimination against national banks. As amended in 1969, § 5219 provides: “For the purposes of any tax law enacted under authority of the United States or any State, a national bank shall be treated as a bank organized and existing under the laws of the State or other jurisdiction within which its principal office is located.” Pub. L. 91-156, § 2(a), 83 Stat. 434. The court also rejected claims that the tax violated state law and the United States Constitution by placing a tax burden on banks heavier than it placed on other “moneyed capital” in the State. 615 S. W. 2d, at 813-816, 822-823. These holdings are not before us. Montana Bankers Assn. v. Montana Dept. of Revenue, 177 Mont. 112, 580 P. 2d 909 (1978); First Security Bank of Bozeman v. Montana Dept. of Revenue, 177 Mont. 119, 580 P. 2d 913 (1978). The Supreme Court of Georgia has upheld a similar bank shares tax. Bartow County Bank v. Bartow County Board of Tax Assessors, 248 Ga. 703, 285 S. E. 2d 920 (1982), appeal docketed, No. 81-1834. Respondents Dallas County et al. suggest that “considered” may mean “characterized by deliberate thought,” so that a tax would be invalid under the section only if the tax assessor subjectively knew that the bank’s assets included federal obligations. Brief for Respondents Dallas County et al. 8-9. Respondents do not explain why Congress might have believed the subjective knowledge of the tax assessor worthy of federal concern. Moreover, on its face, the statute bars taxes requiring that federal obligations be considered “indirectly” in computing the tax. A Texas Court of Civil Appeals itself has stated that each asset of a bank, apart from real estate holdings, is “included and considered in arriving at the value of the Bank’s shares.” City of Midland v. Midland National Bank, 607 S. W. 2d 303, 304 (1980). The unenacted 31 U. S. C. §742, which codified Rev. Stat. §3701, included the introductory phrase “Except as otherwise provided by law....” Rev. Stat. § 3701 itself did not include that phrase, however, and the Statutes at Large prevail over the Code whenever the two are inconsistent. Stephan v. United States, 319 U. S. 423, 426 (1943). In fact, Congress was aware that Rev. Stat. § 3701 did not contain this phrase. Both the House and Senate Reports, although mentioning the phrase at one point, see S. Rep. No. 909, 86th Cong., 1st Sess., 11 (1959) (Senate Report); H. R. Rep. No. 1148, 86th Cong., 1st Sess., 12 (1959) (House Report), properly set forth the statute without the introductory clause. Senate Report, at 22; House Report, at 25. Moreover, the Reports summarized the amendment as making clear that, with specified exceptions, “both the principal and interest on U. S. obligations are exempt from all State taxes except....” Senate Report, at 2; House Report, at 2. There was no suggestion that some category of state taxes apart from those specifically preserved was to be impliedly excepted. At the time the contested taxes were levied, at least six States other than Texas imposed a bank shares tax. Of the six statutes, five explicitly required that the share’s value be determined according to the value of the bank’s assets. See Ga. Code Ann. § 48-6-90 (1982); La. Rev. Stat. Ann. §47:8 (West 1970) and §47:1967(0 (West Cum. Supp. 1982); Nev. Rev. Stat. §367:025 (1981); Ohio Rev. Code Ann. §5725.04 (1980) (repealed, effective Jan. 1, 1983, see Ohio Rev. Code Ann. § 5725.04 (Supp. 1982)); Pa. Stat. Ann., Tit. 72, §7701 (Purdon Supp. 1982). One of the statutes, like Texas’, did not specify the method by which the assessment was to be made. See W. Va. Code § 11-3-14 (1974). Accordingly, we need not decide whether Texas, by the use of some other method of assessing the shares, could avoid the plain prohibition of the statute. See, e. g., Van Allen v. Assessors, 3 Wall. 573, 598-599 (1866) (Chase, C. J., concurring); 67 Cong. Rec. 6085-6986 (1926) (colloquy of Reps. Wingo and Cooper) (legalizing franchise tax measured by assets including federal obligations is “a use of words to conceal an idea”; “the decision of the Supreme Court which arrived at [that] conclusion gave me a headache, and it took me considerable time to be able to comprehend it”); id., at 6088 (remarks of Rep. Stevenson) (“the Supreme Court of the United States frequently obscures ideas by language as well as statesmen when they are on the stump.... When they held that the stock was taxable, although every dollar of it was invested in United States bonds, which were expressly exempt from taxation, they held practically the same thing”). See also Macallen Co. v. Massachusetts, 279 U. S. 620, 628-629 (1929); Society for Savings v. Bowers, 349 U. S., at 148. The unenacted phrase “Except as otherwise provided by law,” added to the text of Rev. Stat. § 3701 by the codifiers of the United States Code in 1926, see n. 8, supra, almost certainly did not refer to §5219 or its predecessors. The drafters probably inserted the language as a cross-reference to the Act of Aug. 13,1894, ch. 281,28 Stat. 278, which had legislatively overruled Bank v. Supervisors, 7 Wall. 26 (1869), and modified § 3701 to the extent of removing the exemption from circulating notes and other notes circulating as currency. See W. McClenon & W. Gilbert, Index to the Federal Statutes 1874-1931, p. 1243 (1933) (listing Act of Aug. 13,1894 Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

H

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